No. 13430 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1977 

STATE OF MONTANA, 

Plaintiff and Respondent, 

CECIL BERNHARD, 

Defendant and Appellant. 

Appeal from: District Court of the Eleventh Judicial 

District 

Honorable Robert C. Sykes, Judge presiding. 

Counsel of Record: 

For Appellant: 

Cecil Bernhard argued Pro Se, Eureka, Montana 

For Respondent: 

Hon. Mike Greely, Attorney General, Helena, 

William Douglas, County Attorney, Libby, Montana 

Joe Roberts argued, Libby, Montana 

Submitted: January 12, 1977 

Decided : 

Filed : 
Mr. Justice Frank I. Haswell delivered the Opinion of the Court. 

Defendant Cecil Bernhard appeals from a judgment entered 

on a jury verdict in the district court, Lincoln County, convicting him of operating a motor vehicle wrecking facility 

without a license, a misdemeanor. 

On November 6, 1975, a complaint charging defendant 

with operating a motor vehicle wrecking facility without a license, 

in violation of section 69-6802, R.C.M. 1947, was filed in Lincoln 

County justice court. On November 26, 1975, following a jury 

trial in which defendant was found guilty of the charge, he was 

fined $300 and sentenced to 30 days in the county jail. Defendant appealed to the district court and on March 1, 1976, was 

again found guilty by a six person jury. The district court imposed a fine of $250 and a jail sentence of 30 days, both of 

which were to be suspended provided defendant procured a license 

to operate a motor vehicle wrecking facility within 30 days of 

the judgment date. Defendant appeals from this judgment. 

At all stages of the proceedings herein defendant appeared 

and at his request, acted as his own counsel. 

Defendant owns a parcel of land located approximately 

one-half mile from Eureka. This land is abutted by two county 

roads. On a portion of this land defendant kept between 60 and 

100 unlicensed, discarded motor vehicles. 

Effective May 1, 1974, Lincoln County began administering a "junk vehicle" program pursuant to Ch. 68, Title 69, Revised 

Codes of Montana, 1947. This act and the regulation promulgated 

thereunder provide for the licensing and regulation of motor 

vehicle wrecking facilities, the control of junk vehicles in 

nonwrecking yard locations, and the establishment of motor vehicle 

graveyard facilities. 

Terrence Schultz, Lincoln County sanitarian, was given 
authority to administer the program by the Lincoln County 

commissioners. Schultz first met with defendant on May 16, 1974, 

and explained to him that the discarded vehicles on his property 

did not comply with the law. A letter dated June 3, 1974, from 

the sanitarian to defendant further explained the new law and 

the consequences of noncompliance. Defendant responded with a 

letter to the sanitarian in which he expressed a desire to "work 

something out" with respect to his use of the property involved. 

On July 2, 1974, defendant and Schultz met again and discussed 

alternative means of conforming defendant's property to the statutory requirements. Defendant's failure to comply with those 

requirements resulted in a charge of operating a motor vehicle 

wrecking facility without a license being filed against him in 

Lincoln County justice court. Defendant was convicted following 

a jury trial on December 17, 1974. 

Defendant's continued refusal to procure a license after 

his first conviction triggered a second prosecution for violating 

the act, initiated on November 6, 1975. The present appeal is 

taken from the district court judgment following conviction on 

the second charge of operating a motor vehicle wrecking facility 

without a license. 

Defendant challenges the constitutionality of section 

69-6802 in this appeal. Specifically, he contends that this 

statute unconstitutionally allows a taking of property without 

due process and that the statute under which he was convicted is 

an ex post facto law. Defendant also contends that the first 

conviction for violating the statute was a bar to a second prosecution under the sane statute and he was therefore subjected to 

double jeopardy. 

Defendant contends that due process requires just compensation to be given to a landowner whose use of his property 
is restricted by the statute. The state argues the statute is 

a valid exercise of its police power and that as such no compensation need be given. Clearly, when the police power has 

been properly invoked, compensation is not required. Atlantic 

Coast Line R.R. Co. v. City of Goldsboro, 232 U.S. 548, 34 

S.Ct. 364, 58 L.Ed. 721. 

The license required when a person has four or more 

junk vehicles at a single location constituting a motor vehicle 

wrecking facility is not granted unless the vehicles are shielded 

from public view, pursuant to M.A.C. 16-2.14(2)-S 14261. 

Defendant's argument seems to be that the shielding requirement is without foundation and therefore cannot support the 

state's exercise of its police power. 

On the other hand, the state contends its police power 

is broad enough to include aesthetic considerations which underlie the shielding requirement, and therefore the statute is a 

valid exercise of the state's police power. 

Aesthetic considerations have supported an exercise of 

the police power to force removal of roadside advertising without compensation. Markham Advertising Company v. State, 73 Wash.2d 

405, 439 P.2d 248, appeal dismissed 393 U.S. 316, reh-den. 393 

U.S. 1112. 

Other jurisdictions have taken the view that aesthetic 

considerations alone may warrant the exercise of police power 

with respect to motor vehicle junkyard requirements. Oregon City 

v. Hartke, 240 Or. 35, 400 P.2d 255; Xotenmg v. Fort Pierce, 

(Fla. 1967) 202 So.2d 782; Racine County v. Plourde, 38 Wis.2d 

Article 11, Section 3, 1972 Montana Constitution, declares 

that the right to a "clean and healthful environment" is an inalienable right of a citizen of this state. consistent with this 
statement and the cases cited, we hold that a legislative purpose to preserve or enhance aesthetic values is a sufficient 

basis for the state's exercise of its police power in section 

69-6802 and M.A.C. 16-2.14(2)-S 14261. 

Defendant alleges also that section 69-6802 is an ex 

post facto law. However, he was charged with maintaining four 

or more junked vehicles on his property after the statute was 

in effect; he was not subjected to a penalty for having the 

vehicles prior to that time. His contention therefore, that 

this is an ex post facto application of the statute is groundless. In Samuels v. McCurdy, 267 U.S. 188, 45 S.Ct. 264, 69 

L.Ed 568, 570, the United States Supreme Court rejected defendant's argument that his conviction under a law prohibiting 

possession of liquor was invalid since his possession of the 

liquor predated the effective date of the prohibition act. There 

the court stated: 

"This law is not an ex post facto law. It does 

not provide a punishment for a past offense. It 

does not fix a penalty for the owner for having 

become possessed of the liquor. The penalty it 

imposes is for continuing to possess the liquor 

after the enactment of the law. * * *" 69 L.Ed. 

570. 

Applying this test to defendant's maintenance of his 

vehicles, it is clear that there was no ex post facto application 

of section 69-6802. 

Neither is there merit in defendant's contention that 

his conviction on the second charge of failure to license his 

junk vehicle accumulation was constitutionally barred by the earlier 

conviction for violating the same statute. 

Defendant argues that his refusal to procure a license 

or shield his property is a single, ongoing act for which he can 

be prosecuted only once. In State v. Boe, 143 Mont. 141, 146, 388 

P.2d 372, this Court stated with respect to the constitutional 
protection against double jeopardy: 

"The controlling word is offenses, it does 

not refer to acts. " 

One test used by this Court to measure the necessary 

identity of offenses was enunciated in State v. Parmenter, 112 

Mont. 312, 316, 116 P.2d 879. There the test was whether: 

" * * * all the evidence relied upon to support 

the conviction under the second information would 

have been admissible and would have sustained a 

conviction under the first information." 

In the present case, the two separate complaints charged 

distinct offenses. The second charge was based on defendant's 

failure to have a license for a motor vehicle wrecking facility 

on November 6, 1975. The first complaint alleged that he did not 

have the necessary license on August 28, 1974. The prosecution 

could not have known of the second offense at the time of charging defendant for the first offense. As the United States 

Supreme Court stated in United States v. Ewell, 383 U.S. 116, 

86 S.Ct. 773, 15 L ed 2d 627, 633, Fifth Amendment protection 

against being twice put in jeopardy: 

" * * * is not properly invoked to bar a second 

prosecution unless the 'same offense' is involved 

in both the first and the second trials. 

" * * * If the two offenses are not, however, 

the same, then the Double Jeopardy Clause by its 

own terms does not prevent the current prosecution * * **I1 

Another question raised by defendant as a part of his 

attack on the constitutionality of the statute under which he 

was charged properly concerns the construction of the statute 

as it applies to defendant's use of his property. 

Defendant was charged with violating section 69-6802, 

R.C.M. 1947, which provides in part: 

"A person may not conduct, maintain, or operate 
a motor vehicle wrecking facility without a 

license issued by the department." 

Section 69-6801(1), R.C.M. 1947, defines a motor 

vehicle wrecking facility: 

" (1) '14otor vehicle wrecking facility' means a 

facility buying, selling, or dealing in four (4) 

or more vehicles per year of a type required to 

be licensed, for the purpose of wrecking, dismantling, disassembling, or substantially changing 

the form of the motor vehicle, or which buys or 

sells integral secondhand parts or component 

material thereof, in whole or in part, and deals 

in secondhand motor vehicle parts. The term does 

not include a garage where wrecked or disabled 

motor vehicles are temporarily stored for a reasonable period of time for inspection, repairs, or 

subsequent removal to a junkyard." 

Defendant concedes in this appeal, as he conceded at the 

district court trial, that he possesses four or more junk vehicles 

on his property. He testified that he has neither done business 

at the site nor added or removed any vehicles since the statute 

went into effect. Defendant argues that he was not operating a 

motor vehicle wrecking facility. 

In Cosgrove v. Industrial Indemnity Company, Mont . 

, 552 P.2d 622, 624, 33 St.Rep. 675, this Court stated: 

"In construing a statute, the Court must determine the plain meaning of the words used. The 

language is to be interpreted in accordance with 

its usual, ordinary, and accepted meaning, and 

the intention of the legislature in enacting it 

must be gathered from the language employed therein. Section 93-401-15, R.C.M. 1947; County of Hill 

v. County of Liberty, 62 Mont. 15, 203 P. 500; * * * State v. Midland Nat'l Bank, 132 Mont. 339, 

317 P.2d 880." 

Section 69-6801(1) states that a facility must "buy, sell, 

or deal" in motor vehicles or parts or materials thereof to constitute a "motor vehicle wrecking facility." This language is 

not ambiguous. The legislature clearly intended to require 

licensing of facilities at which business activity related to 

junk vehicles is being carried on. The definition of "motor 

vehicle wrecking facility" by its own terms does not include 
mere accumulations of junk vehicles. 

In analyzing the proof at the trial, we note: 

"Possession at a single location, of four (4) 

or more junk vehicles of a type required to be 

licensed, is prima facie evidence that the 

possessor is operating a motor vehicle wrecking facility. " Section 69-6803 (I), R.C.M. 1947. 

Additionally, the presence of between 60 and 100 junk vehicles 

on defendant's property, unexplained, is some evidence of 

"dealing" in junk motor vehicles within the meaning of section 

69-6801 (I), R.C.M. 1947. 

The opposing evidence consists solely of defendant's 

testimony. In substance, defendant denied that he was "operating a wrecking yard"; stated that he had not "sold enough 

parts in the last year to pay for a license"; and testified: 

"Over the years I have sold a few parts now and 

then when someone would contact me and come to 

me. I have given some away and I have sold some 

for a few dollars but not since this law has 

gone into effect. 'I 

Two different juries weighed this opposing evidence 

and convicted the defendant of operating a motor vehicle wrecking facility without a license. It is axiomatic that the function 

of the jury is to determine the credibility of the witnesses 

and the weight to be given their testimony and so resolve the 

ultimate question of fact in this case, viz. did defendant 

operate a motor vehicle wrecking facility? The jury resolved 

this factual dispute by their verdict and we, as the appellate 

court, will not interfere where as here, there is substantial 

evidence to support the verdict. 

Judgment affirmed. 

Justice 

Chief Justice 1 -8- 
u ............................ Justices 
Mr. Justice Daniel J. Shea, dissenting: 

I would reverse the conviction. 

while I concur with the majority's findings that the Motor 

vehicle Wrecking Facilities Act is constitutional, I do not agree 

with the conclusion that there was "substantial credible evidence 

to support the verdict." 

The state brought forth no evidence at trial tending to 

prove that defendant had bought, sold, or dealt in motor vehicles 

or motor vehicle parts or materials since the effective date of the 

act. Defendant's testimony, that he had done no business with respect to his junk vehicle accumulation since the licensing requirement 

went into effect, was wholly uncontradicted. 

Granted, section 69-6803(1), R.C.M. 1947, creates a rebuttable presun~ption that possession alone of four or more junk vehicles 

at a single location is "prima facie evidence that the possessor is 

operating a motor vehicle wrecking facility." However, I cannot 

believe that this presumption of possession can operate to convict 

one of something more than possession, that of conducting an ongoing 

business of buying, selling, or dealing in wrecked motor vehicles 

or used parts. Furthermore, the defendant did explain the presence 

of the 60 to 100 vehicles, simply by stating that he had acquired 

them all before the effective date of the statute. The state made 

repeated attempts to get him to admit that he had done business 

since the effective date of the act, and the defendant consistently 

denied he had. Moreover, the state's chief witness, Mr. Schultz, 

the sanitarian, in response to a question from the trial judge, 

testified that he did not know whether defendant had acquired any 

additional vehicles since the effective date of the statute. 

Up until the passage of the laws herein, the defendant had 

no duty to shield his cars from public view. He was entitled to keep 
them there, however obnoxious or odious it might have been to the 

aesthetic values of the public. It was only after the passage of 

the act here complained of that there was a duty imposed on defendant 

to do something about shielding his wrecked cars. If he carried on 

a motor vehicle wrecking facility, he was required to get a license. 

An administrative condition precedent to his obtaining a license 

was that he shield his vehicles from public view. On the other hand, 

if he did not operate a wrecking facility the state could still request him to shield his vehicles from public view. See section 69- 

6810, R.C.M. 1947, and M.A.C. 16-2.14 (2) -S14261(2) (a) . However, the 

state chose to charge him with operating a motor vehicle wrecking 

facility without a license. The record does not reveal whether the 

state knew of the other option, to simply request him to shield his 

property from public view. 

The facts clearly demonstrate that the state did not prove 

that after the effective date of the statute defendant was operating 

a motor vehicle wrecking facility; that is, buying, selling or 

dealing in wrecked vehicles or used parts. 

The state relied exclusively on the presumption that the 

possession of four or more wrecked vehicles at a single location 

is translated into an ongoing business of w, selling, or dealing 

in wrecked vehicles or used parts, and is, therefore, a motor vehicle 

wrecking facility. The person charged with enforcing the statutes, 

Terrence Schultz, the Lincoln County sanitarian, was the state's star 

witness, and he did not even intimate that the defendant was engaged 

in the buying, selling, or dealing in wrecked vehicles or used 

parts after the effective date of the act. He testified he did not 

know. And, after defendant rested his case, it would have been a 

simple matter for the state to put witnesses on the stand testifying 

to his business activity after the effective date of the statute, if 

the state had the evidence. It is interesting to note here that 
despite the several conversations between the defendant and the 

sanitarian, the state could not elicit testimony from the sanitarian 

that the defendant had admitted to him that he was buying, selling 

or dealing after the effective date of the statute. 

The only evidence was the uncontradicted testimony of defendant that after the effective date of the act he did not buy, sell or 

deal in wrecked motor vehicles or used parts. Other than by his own 

testimony, how else could he establish that he was not operating a 

wrecking facility? Certainly the state would have objected (and 

probably successfully) to the defendant parading many witnesses on 

the stand to establish negatively that they did not buy, sell or 

deal with defendant after the effective date of the statute. 

Defendant's conviction stands on the fact that he possessed 

four or more junk vehicles at a single location within public view. 

Under these circumstances it is shocking to allow a presumption of 

possession convict defendant of a crime the heart of which is not 

possession, but the active ongoing business of buying, selling, or 

dealing in wrecked vehicles or used parts. This kind of presumption 

has no place in the criminal law.