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State v. Mayhew Prods. Co.

Citation: 9 ELR 20753
No. No. 43292, 281 N.W.2d 783/204 Neb. 266, (Neb., 11/06/1979)

The Nebraska Department of Roads sought a mandatory injunction requiring appellant to remove an outdoor advertising sign located near an interstate highway. The relevant state law, Nebraska Revised Statutes § 39-1320 et seq., makes it unlawful to place advertising signs along any interstate highway without a permit from the Department. The statute authorizes condemnation and payment of just compensation for the removal of nonconforming signs erected on or before March 27, 1972. The sign in question was erected before April 20, 1972. This suit was instituted on July 18, 1972, and the trial court granted the injunction on May 3, 1978.

Appellant contended that the statute is unconstitutional because it constitutes a taking of property without just compensation, deprives appellant of property without due process, impairs contractual obligations, and constitutes an ex post facto law. The court notes that the Nebraska statute was enacted to enable the state to obtain the financial incentives of the federal Highway Beautification Act, 23 U.S.C. § 131. Further, the constitutionality of legislative restrictions on highway billboards enacted to comply with the federal statutes has been sustained against all of the contentions raised by appellant. The court thus holds that the provisions of the statute constitute a reasonable exercise of the police power which bears a substantial relation to the public health, safety, and general welfare, and the statute is therefore constitutional. Issuance of an injunction in this instance requiring removal of the sign is constitutional. If appellant can establish that the sign was lawfully erected prior to March 27, 1972, the remedy of inverse condemnation is available. The trial court decision is affirmed.

The full text of this opinion is available from ELR (4 pp. $0.50, ELR Order No. C-1200).

Counsel for Appellant
R. Steven Geshell
Robak & Geshell
2413 23d St., Columbus NE 68601
(402) 564-7192

Counsel for Appellee
Paul L. Douglas, Attorney General; Warren D. Lichty, Jr., Randall E. Sims, Ass't Attorneys General
2115 State Capitol, Lincoln NE 68509
(402) 471-2682

McCown, J., joined by Krivoska, Boslaugh, Clinton, Brodkey, White, and Hastings, JJ.

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]