Filed April 17, 1941.1. JUDGMENT — Default Judgment — Setting Aside for Lack of Personal Service — Statute — Issue of Fact Not Raised. — Under the statute providing that parties against whom a judgment has been rendered without other notice than the publication in a newspaper, no issue of fact is raised and no discretion is vested in the trial court, except as to notice and costs ( General Outdoor Advertising Co. v. City of Indianapolis, 202 Ind. 85, overruled in so far as it is conflicting, and Padol v. Home Bank Trust Co., 108 Ind. App. 401, limited, in that certain statements therein are obiter dicta). p. 434.
[3, 4] II. It is true when a municipal corporation exercises its police power the courts will not interfere unless there has been a clear abuse of discretion, 62 C.J.S., Municipal Corporations, section 199, page 375, and where the police power is exercised through an ordinance enacted under express statutory authority, as here, the courts cannot determine the reasonableness of the ordinance or question the same except upon constitutional grounds. General Outdoor Advertising Co. v. Indianapolis, 202 Ind. 85, 172 N.E. 309, 72 A.L.R. 453. [5] Billboards properly may be put in a class by themselves and may in the future be prohibited "in residence districts of a city in the interest of the safety, morality, health and decency of the community."
That it might affect one of "fastidious taste" would not bring it within the Code definition of a nuisance quoted above. The attorney for the plaintiffs cites Morrison v. Slappey, 153 Ga. 724 ( 113 S.E. 82); Harrison v. Sutton, 168 Ga. 565 ( 148 S.E. 403); Saier v. Joy, 198 Mich. 295 ( 164 N.W. 507, L.R.A. 1918A, 825); Pig'n Whistle v. Keith, 167 Ga. 735 ( 146 S.E. 455); Blackman Health Resort v. Atlanta, 151 Ga. 507 ( 107 S.E. 525, 17 A.L.R. 516); 46 C. J. 658, § 23; Coker v. Birge, 9 Ga. 425 (54 Am. D. 347); Hill v. McBurney Oil c. Co., 112 Ga. 788 ( 38 S.E. 42, 52 L.R.A. 398); Hodges v. Pine Products Co., 135 Ga. 134 ( 68 S.E. 1107, 33 L.R.A. (N.S.) 74, 21 Ann. Cas. 1052), 46 C. J. 693, § 101; 11 Am. Jur. 1038, § 280; Dowsey v. Kensington, 257 N.Y. 221 ( 177 N.E. 427, 86 A.L.R. 642); State ex rel. Sivello v. New Orleans, 154 La. 271 ( 97 So. 440, 33 A.L.R. 260); General Outdoor Adv. Co. v. Indianapolis, 202 Ind. 85 ( 172 N.E. 309, 72 A.L.R. 453). In Morrison v. Slappey, supra, the judgment of the trial court, which was affirmed by this court, in part inhibited the carrying of caskets and other equipment to the undertaker's place of business, where the "purpose . . apparent by external appearance" is to bury the dead.
" See, also, General Outdoor Advertising Co. v. City of Indianapolis, 202 Ind. 85 ( 172 N.E. 309, 72 A.L.R. 453); Ware v. City of Wichita, 113 Kan. 153 ( 214 P. 99); State, ex rel. Carter, v. Harper, 182 Wis. 148 ( 196 N.W. 451, 33 A.L.R. 269). There was no unlawful delegation of legislative power to the commission which issued licenses.
Indeed, in some cases, it has been said, where the restrictions were sustained on orthodox grounds — public health, morals, and safety, that the fact that they also result in incidental æsthetic benefit will not invalidate the zoning law or ordinance, as though the zoning were handicapped by resulting æsthetic benefits. In this regard, a quotation from American Bar Association Journal, August, 1922, p. 470, appears in General Outdoor Adv. Co. v. City of Indianapolis, 202 Ind. 85 ( 172 N.E. 309, 72 A.L.R. 453): "The law * * * in recent years, is * * * coming to take beauty into account as worthy of consideration. * * * It is now universally conceded that beauty may constitute an element in the public welfare which will justify the power of condemnation. * * * When we come to * * * the recognition of beauty as an element to justify the exercise of the police power * * * the courts have not been willing to acknowledge beauty as a justification, but without admitting it they are more and more giving weight to the consideration of fitness and propriety in a man's use of his own."
" See, also, General Outdoor Advertising Co v. Indianapolis, Dept of Public Parks, 202 Ind. 85; 172 N.E. 309 (1930). Further, it has been held that the prohibition by ordinance of commercial uses within residential districts is not unreasonable.
This includes limitations on size and height. See General Outdoor Advertising Co v. Indianapolis, 202 Ind. 85; 172 NE 309 (1930). The trial judge held that plaintiff's evidence proved that high-rise signs can be constructed with complete safety.
" Quoting both Art. 1, § 21, of the Indiana Constitution and § 1 of the Fourteenth Amendment and citing both a decision of this Court, Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, and one of its own decisions, General Outdoor Advertising Co. v. City of Indianapolis, 202 Ind. 85, 172 N.E. 309 (1930), the Indiana Supreme Court began its analysis with the proposition that private property may not be taken for public use without compensation. Two issues were singled out as determinative of whether the ordinance under consideration violated that constitutional protection: "(1) Whether air space above land is a constitutionally protected property right, and (2) whether in the instant case there has been a constitutionally proscribed taking."
Mr. Brown cannot establish that the right to enter the parks of Michigan City is "a right or status previously recognized by state law." Paul, 424 U.S. at 711, 96 S.Ct. 1155. The cases cited by Mr. Brown, see, e.g., Gen. Outdoor Adver. Co. v. City of Indianapolis, Dept. of Pub. Parks, 202 Ind. 85, 172 N.E. 309, 313 (1930), indeed do discuss the importance of public parks; however, they do not confer a constitutionally cognizable right upon all citizens to enjoy these parks unconditionally. In fact, as we already have discussed, the right to enter Michigan City parks is qualified by Indiana state law, which grants discretion to the Park Board to set conditions on the public's entry to city parks and to regulate the behavior required of its visitors.
The fact that another result might have been one which was aesthetically pleasing would not necessarily have imported an element of constitutional infirmity. The effort to eliminate what was referred to in argument before us as "visual pollution" by controlling signs and billboards through the exercise of the zoning power has been slowly developing, General Outdoor Adv. Co. v. Indianapolis, 202 Ind. 85, 172 N.E. 309, 72 A.L.R. 453 (1930); Opinion of the Justices to the Senate, 333 Mass. 773, 128 N.E.2d 557, 561 (1955); People v. Sterling, 128 Misc. 650, 220 N YS. 315 (1927); State ex rel. Saveland Park Holding Corp. v. Wieland, 269 Wisc. 262, 69 N.W.2d 217, 222 (1955); 58 Am.Jur. Zoning § 30 at 959 (1948); 1 Anderson, American Law of Zoning, supra, § 7.21 at 520-23; 1 Rathkopf, Law of Zoning and Planning, supra, at 11-9, 11-22; 1 Yokely, Zoning Law and Practice § 2-4 at 28 (3d ed. 1965); Dukeminier, Zoning for Aesthetic Objectives: A Reappraisal, 20 Law Contemp. Prob. 218 (1955); Masotti Selfon, Aesthetic Zoning and the Police Power, supra, 46 J. Urban L. 773, 779-86; Note, 47 Cornell L. Rev. 647, 651-52 (1962); Annot., Aesthetic Objectives or Considerations as Affecting Validity of Zoning Ordinance, 21 A.L.R.3d 1222, 1225 (1968). The principal difficulty is that other forms of pollution, stench and noise and the like, can be measured by more nearly objective standards. If beauty, however, lies in the eyes of the be