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, amisdemeanor. On November 6,1975,a complaint charging defendant with operating amotor vehicle wrecking facilitywithout 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 inwhich defendantwas found guilty of the charge,he was fined $300and sentenced to 30 days in the county jail. Defendant appealed to the district court and onMarch 1,1976, was again found guilty by a six person jury. The district court imposed a fine of $250and a jail sentence of 30 days,both of which were to be suspendedprovided defendantprocured a license to operate amotor vehicle wrecking facilitywithin 30 days of the judgmentdate. Defendant appeals from this judgment. At all stages of theproceedings 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 defendantkeptbetween 60 and 100 unlicensed, discarded motor vehicles. EffectiveMay 1, 1974,Lincoln County began administering a "junkvehicle" program pursuant to Ch. 68,Title 69,Revised Codes of Montana, 1947. This act and the regulationpromulgated thereunderprovide for the licensing and regulation ofmotor vehicle wrecking facilities, the control of junkvehicles in nonwreckingyard locations, and the establishment ofmotor vehicle graveyard facilities. Terrence Schultz,Lincoln County sanitarian,was givenauthority to administer the program by the Lincoln County commissioners. Schultz firstmet with defendant onMay 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 respondedwith a letter to the sanitarian in which he expressed a desire to "work somethingout"with respect to his use of theproperty involved. On July 2, 1974,defendant and Schultzmet again and discussed alternative means of conformingdefendant's property to the statutory requirements. Defendant's failure to complywith those requirements resulted in a charge of operating a motor vehicle wrecking facilitywithout a licensebeing filed against him in Lincoln County justice court. Defendantwas 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 forviolating the act, initiated onNovember 6, 1975. Thepresent appeal is taken from the district court judgment following conviction on the second charge of operating amotor vehicle wrecking facility without a license. Defendant challenges the constitutionalityof 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 forviolating the statutewas a bar to a second prosecutionunder the sane statute and he was therefore subjected to double jeopardy. Defendant contends that due process requires just compensation to be given to a landownerwhose use of his propertyis restrictedby 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 ormore junk vehicles at a single location constituting amotor 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 iswithout foundationand 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 considerationswhich 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, 73Wash.2d 405, 439 P.2d 248, appeal dismissed 393 U.S. 316,reh-den.393 U.S. 1112. Other jurisdictionshave taken the view that aesthetic considerations alonemay warrant the exercise ofpolice power with respect to motor vehicle junkyard requirements. Oregon City

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

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

Article 11, Section 3, 1972Montana Constitution, declares that the right to a "cleanand healthful environment" is an inalienable rightof a citizen of this state. consistent with thisstatement and the cases cited,we hold that a legislativepurpose 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 statutewas 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 liquorpredated the effective date of the prohibition act. There the court stated: "This law is not an ex post facto law. Itdoes not provide a punishment for a past offense. It does not fix a penalty for the owner forhaving 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 theremerit in defendant's contention that his conviction on the second charge of failure to license his junk vehicle accumulationwas constitutionallybarred 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 forwhich 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 constitutionalprotection against double jeopardy: "The controlling word is offenses, it does not refer to acts.

### " One test used by this Court to measure the necessary identityof offenseswas enunciated in State

### v. Parmenter, 112 Mont. 312, 316, 116 P.2d 879. There the test was whether: 

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## * all the evidence relied upon to support the conviction under the second informationwould have been admissible and would have sustained a conviction under the first information." In thepresent case, the two separate complaints charged distinct offenses. The second chargewas based on defendant's failure to have a license for a motor vehicle wrecking facility

onNovember 6, 1975. The first complaint alleged that he did not have the necessary license onAugust 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,FifthAmendment protection against being twice put in jeopardy:



### " 

## * * * is not properly invoked to bar a second prosecution unless the 'sameoffense' is involved in both the first and the second trials.



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## * * 

## * If the two offenses are not, however, the same, then the Double Jeopardy Clause by its own terms does not prevent the currentprosecution 

## * * **I1 Another question raised by defendant as a part of his attack on the constitutionalityof the statute under which he

was charged properly concerns the construction of the statute

as it applies to defendant's use of his property. Defendantwas chargedwith violating section 69-6802, R.C.M. 1947,which provides in part: "Aperson may not conduct,maintain, or operatea motor vehiclewrecking facilitywithout a license issued by the department." Section 69-6801(1), R.C.M. 1947,defines amotor vehicle wrecking facility: 

### " (1) '14otorvehiclewrecking facility' means a facilitybuying, selling,or dealing in four (4) ormore vehiclesper year of a type required to be licensed, for the purpose of wrecking, dismantling, disassembling,or substantially changing the form of themotor vehicle, or which buys or sells integral secondhandparts 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 ormore 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 Cosgrovev. Industrial Indemnity Company, Mont

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, 552 P.2d 622, 624, 33 St.Rep. 675, this Court stated: "In construing a statute, the Courtmust 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, 62Mont. 15, 203 P. 500; 

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## * Statev. Midland Nat'l Bank, 132Mont. 339, 317 P.2d 880." Section 69-6801(1) states that a facilitymust "buy,sell,

or deal" inmotor vehicles or parts ormaterials thereof to constitute a "motorvehicle wrecking facility." This language is not ambiguous. The legislatureclearly intended to require licensing of facilities atwhich business activity related to junk vehicles is being carried on. The definitionof "motor vehicle wrecking facility" by its own terms does not includemere accumulations of junk vehicles. In analyzing the proof at the trial,we note: "Possession at a single location,of four (4) ormore junk vehicles of a type required to be licensed, is prima facie evidence that the possessor is operating amotor 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 themeaning 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: "Overthe years I have sold a fewparts now and then when someonewould contact me and come to me. Ihave given some away and I have sold some for a few dollars but not since this law has gone into effect. 'I Two different juriesweighed this opposing evidence and convicted the defendant of operating a motor vehicle wrecking facilitywithout a license. It is axiomatic that the function of the jury is to determine the credibility of the witnesses and theweight to be given their testimony and so resolve the ultimate question of fact in this case,viz. did defendant operate amotor 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 

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............................ JusticesMr. Justice Daniel J. Shea, dissenting:

Iwould reverse the conviction. while I concur with the majority's findings that the Motor vehicle Wrecking FacilitiesAct is constitutional, I do not agree with the conclusion that there was "substantial credible evidence to support the verdict." The statebrought forth no evidence at trial tending to prove that defendant had bought, sold, or dealt inmotor 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 inwrecked motor vehicles or used parts. Furthermore, the defendantdid explain the presence of the 60 to 100 vehicles, simplyby 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 knowwhether defendant had acquired any additionalvehicles 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. Hewas entitled to keepthem 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 conditionprecedent 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 facilitywithout 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 defendantwas operating

a motor vehicle wrecking facility; that is, buying, selling or dealing inwrecked 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 inwrecked vehicles or used parts after the effective date of the act. He testified he did not know. And, after defendant rested his case, itwould 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 thatdespite the several conversationsbetween the defendant and the sanitarian,the state could not elicit testimony from the sanitarian that the defendanthad 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 inwrecked 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 defendantparading 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 locationwithin 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.