City of Dallas v. Cluck & Murphy

HAMILTON, J. This case is before us on the record and appellant’s brief, no brief for appellees having been filed. The following is appellant’s statement of the nature and result of the case: “Cluck & Murphy were engaged in operating a dairy near the city of Dallas, and they disposed of their milk to O. L. Hamilton within the city of Dallas, who distributed and resold same to the ultimate consumer. “The city of Dallas, a municipal corporation, incorporated by special act of the Legislature, which act provides that all courts take judicial knowledge of same, passed an ordinance regulating the production of milk to be sold in the city of Dallas, and regulating the conditions surrounding the production of such milk and the purity of the milk from the time of its inception in the cow to the time of the sale to the ultimate consumer. “The city chemist and sanitarian was C. M. Adams, and he was a city employee in the health department of the city of Dallas, and it [583] was Lis duty to enforce such milk ordinance. He believed that appellees’ milk was not produced in a lawful manner, and so advised them in writing, and he also wrote to O. L. Hamilton advising, him of the defective and unlawful production of such milk, and told him not to sell same in the city of Dallas. He also, through one of his subordinates, wrote appel-lees, in substance, that they were suspended from selling milk in the city of Dallas for two weeks. “The appellees brought this suit to enjoin the city of Dallas and C. M. Adams from interfering with them or their business except ‘as may be justified or authorized under a city ordinance.’ “The appellees predicated their right to an injunction on Adams’ order to suspend business for two weeks. Under said ordinance he had no authority to issue such order, and no one had authorized him,to do so, and appellees did not allege that he was authorized to do so or that he acted within the apparent scope of his authority. “The city of Dallas contends Adams exceeded his authority in ordering appellees to suspend, and for that reason the city was not responsible for such unauthorized order, and that the city of Dallas has never desired and does not now desire to suspend the 'operation of the business of plaintiffs, except through prosecution and conviction, and in accordance with such milk ordinance. The city pleaded other matters, as will more fully appear. “A temporary writ to same effect was also requested and issued. On a hearing such temporary injunction was continued in full force and effect as to any attempt upon the part of the defendants or either of them to suspend plaintiffs from the conduct of their said business or to prevent any other person from purchasing or disposing of milk produced by plaintiff far any period of time until the final disposition of this cause upon the final trial hereof. The court further overruled the general demurrer of the defendants to plaintiffs’ petition below and refused to pass upon their special exceptions to said petition, to all of which the defendant excepted, and the appellant gave notice of appeal and brings this temporary injunction and the action of the lower court up for review.” Appellant’s assault upon the validity of the trial court’s decree is comprised in ten points, which substantially submit the following propositions: First, that a general demurrer to the petition ought to have been sustained because it did not allege that O. M. Adams acted within the scope of his authority or within the apparent scope of his authority as an agent or officer of the city of Dallas when he interfered with appellee’s business; second, that the pleadings and evidence showed that Adams’ only interference with appellee’s business, and the threatened interference, was the order to appellees to discontinue business for a period of two weeks, which was unauthorized by the city of Dallas, was beyond the apparent scope of 'Adams’ authority, and was not ratified by the city of Dallas, which in no way was responsible for such order; third, that appellees’ conduct in persistently violating the Dallas ordinances regulating the production and delivery of milk put them in a position to receive no relief from a court of equity, and the effect of several different points is to invoke the equity maxim that “he who comes into a court of equity must come with clean hands” ; fourth, that the injunction is improper because it transcends the extent of relief sought in the petition and restrains the city of Dallas from enforcing its valid milk ordinances in the method lawfully prescribed. [1] We do not think the general demurrer ought to have been sustained, and in our view the court committed no error in overruling it. Appellants allege that Adams “had some official connection with the health department of said city of Dallas, the exact official capacity of the said Adams in said department, or as an official of the city of Dallas, being to plaintiffs unknown.” They then allege, in effect, thait while they were conforming to the sanitary requirements of the city of Dallas which were imposed upon all other producers of milk, Adams, acting in an official capacity for the city of Dallas, without lawful authority issued an order alleged to be as follows: “July 7, 1921. ¡ “Cluck & Murphy — Dear Sir: This department wishes to inform you that a sample of your milk taken at O. L. Hamilton on 7/5/21 registered a temperature of 6S-70 degrees Fahrenheit, and was therefore above the legal limit of 55 degrees Fahrenheit. “This is the third successive sample showing that you are disregarding the requirements of the Dallas milk ordinance. “You are therefore notified that your milk cannot be accepted for sale within the city of Dallas until such time as you have satisfied this department of your ability and intention of producing good milk. Proper arrangements can be made by calling at the office of the director of public health, room 403, city hall. Yours very truly, C. M. Adams, Sanitary Officer in Charge U. S. Public Health Service. “You are notified that you are cut off for á period of two weeks.” It was alleged that O. L. Hamilton, to whom appellees’ milk was sold, and by whom it was resold to the consumers, had received a similar order, and thereupon had refused further to comply with his contract to accept appellees’ milk. The city ordinance regulating the subject of the sale and distribution of milk in Dallas was described, and it was alleged that neither it nor any other provision of law authorized the city of Dallas of Adams, acting as its officer, to issue and arbitrarily enforce the order complained of. [2] The above secondly stated contention of> appellant we hold to be untenable. We have already said that the petition could be fairly considered to allege that Adams acted within the apparent scope of his authority. The [584] verified answer filed by the city of Dallas may be taken as conclusive'of Its ratification of Adams’ acts and as estopping it. by admission now to deny authorization of his acts. Appellant and Adams were represented by identical counsel and jointly pleaded their defense. Aside from exceptions leveled at the petition for injunction, the following joint defenses were made by the city and Adams: They alleged that the plaintiffs were chronic and persistent violators of the ordinance of the city of Dallas for the licensing of milk and milk product establishments, an ordinance designed to protect the health and welfare of the citizens of Dallas against impure and contaminated milk. The provisions of the ordinance were stated. It was alleged that the city of Dallas, acting through its board of health and the defendant, Adams, had determined that plaintiffs’ milk products were sold to O. L. Hamilton in violation of the ordinance, and after repeated violations of the ordinance by plaintiffs Hamilton was informed that he would be prosecuted under the laws of the city of Dallas if he sold any milk produced by plaintiffs; that such warning was a legal and valid exercise of the police power; that the letter addressed to plaintiffs and signed by Adams was a mere statement to them that they had not complied with the city ordinances; that it would be unlawful for any one to accept their milk for sale in the city of Dallas, and thait it would be unlawful for them to sell it in the city of Dallas until after full compliance with the ordinance; that the letter was not intended to limit the time within which plaintiffs should not sell milk in the city of Dallas, except so far as their failure to comply with the valid ordinance of the city would itself limit such right; that the expression, “You are notified that you are cut off for a period of two weeks,” was inserted without Adams’ authority, and without the knowledge of the board of health and the city of Dallas, and that, when this expression is construed with the whole letter, it has no meaning. It was further alleged that the city of Dallas and its officers never intended to prevent the unlawful sale of milk in the city of Dallas beyond forbidding the sale of milk below the standard required by the ordinance and by prosecuting offenders against the ordinance. The pleadings do not disclaim knowledge of or acquiescence in whatever was intended by the letter. It does nothing more by its answer than to attempt to justify and interpret the letter, giving it an effect different from that imputed to it by the plaintiffs. There is no proof indicating that the city was not participating with or acting through Adams. [3] Adams testified that the letters sent to Hamilton and to Cluck & Murphy were sent with his knowledge and consent, although he stated that he knew absolutely nothing about their being sent at the time. He swore that the words “cut off” in the letter to plaintiffs meant that if they sold milk they would be prosecuted in the city court. The proof shows thait he occupies the office of city chemist and city sanitarian of the city of Dallas. There is nothing in the record before us suggesting that his act in sending the letters was beyond some specific authority given him by the city of Dallas. In the sense that the threatened action of cutting the plaintiffs off for two weeks was unauthorized by any ordinance of the city of Dallas, it was ultra vires, as contended by appellant. But a municipal corporation acts through its officers and representatives, just as any other corporation acts, and; so far as the record discloses, they all supported and approved what Adams did. His acts, although not in accord with the ordinance, appear to have had the approval and sanction of those who directed the policy and •course of the city. In the sense, therefore, that Adams acted outside of and beyond the course of duty actually prescribed for him, this does not appear to have been the case. [4] A municipal corporation may itself do an ultra vires act by instructions and directions through-its officers and agents, or by actual or implied ratification, and it is well settled that an ultra vires act may be restrained by injunction when it would impair a particular personal right. The distinction between acts which are ultra vires and those which are not is that between acts which are within the corporate powers of the city and those which are not. High on Injunctions, vol. 2, p. 1247. Neither the city nor Adams attempts either by pleading or proof to show that .the latter acted otherwise than in the discharge of official duty imposed upon himi He was at least acting within the general course of his duty when he overstepped the bounds which restrained him and invaded the rights of appellees. To say the least, it seems to us that the pleadings and the proof are sufficient to render the act complained of an unlawful or ultra vires corporate act, especially since it seems to us that the city ratified it by defending it. Dillon on Municipal Corporations (5th Ed.) vol. 4, p. 2751 et seq., and also page 2875, same volume; 22 C. J. 331; Brown v. City (Ky.) 9 S. W. 384. Our view is adverse to appellant’s position that appellees by persistently violating criminal ordinances of the city had put themselves in a position where they could not invoke the aid of a court of equity. The equity maxim, “He who comes into equity must come with clean hands,” is called to the aid of appellants by their counsel, who insist that this maxim applies because appellees’ unlawful conduct caused the actions about which they themselves complain. The ordinance which the city insists was flagrantly violated by appellees is a criminal one. The presumption of law must prevail in all court proceedings that those charged with infraction of criminal laws are innocent until they are adjudged guilty in a proceeding lawfully [585] instituted and prosecuted to final judgment, especially in the absence of admission. To sustain the position of the appellant would be to ignore and override this presumption. As we see it, the above-quoted maxim of equity can have no application. On the contrary that other equity maxim, “Equity follows the law,” could be invoked, it occurs to us, with a nearer approach to propriety. Certainly equity should never undertake to nullify constitutional and valid statutory requirements. [5] We do not think that the effect of the judgment is to restrain or interfere with prosecutions under criminal ordinances. The writ of injunction originally issued restrains the defendants from “further interfering in any way wiith plaintiffs in the conduct of their business, other than as may be justified or permitted under a city ordinance, which may prescribe a specific penalty for its violations. * * * ” The judgment of the count subsequently entered upon hearing of the application continues the original order in effect as the decree of the court until final disposition of the ease. It is true that the original order is continued “as to any attempt upon the part of the defendants, or either of them, to suspend plaintiffs from the conduct of their said business or to prevent any other person from purchasing or disposing of milk produced by plaintiff for any period of time until final disposition of this cause.” This language, construed with that of the original order, does not plainly import a purpose to interfere with any procedure authorized by any criminal ordinance of the city of Dallas, since the original order continued in force expressly disclaimed any purpose or right to interfere with the enforcement of criminal ordinances. The manifest importance of the vigilant supervision and restriction of dispensers of milk as prescribed by valid ordinances forbids that the language of the decree should be given the effect suggested by appellant. The safety of health, even the safety of lives, of the city’s inhabitants, in thousands of conceivable instances requires rigid and vigilant enforcement of the valid police provisions designed for the protection of the citizens against careless or unconscionable milk producers and distributors. [6] Furthermore, injunctions do not issue against the enforcement of a criminal law. A court of equity transcends its jurisdiction and power whenever iit attempts by injunction to interfere with criminal proceedings in a court specially clothed with jurisdiction over such action as the injunction might forbid. An injunction designed to operate to such effect would be wholly ineffectual and void. And this is true notwithstanding the court of equity already has jurisdiction of the parties and of the subject-matter concerning which the criminal action is instituted. High on Injunctions, vol. 1, § 68. Hence to give the decree the effect suggested by appellant would be to nullify it when we can uphold it under a construction just as plainly derivable from it as an entirety. We will accordingly construe the decree so as to give it a valid meaning rather than one extending beyond the confines of authority, and will say that the decree does not forbid any action authorized by ordinance; and any proceeding for contempt because of any action whatever taken against appellees in keeping with the provisions of any criminal ordinance of Dallas would be a nullity. This is a reasonable construction of the decree. It renders it valid. Any other construction would render it ineffectual and unenforceable. We will therefore overrule the appellant’s contention that the injunction is illegal because it goes beyond the prayer and restrains the city of Dallas from enforcing its milk ordinance. That a city should protect the health and lives of its people is of supreme importance. That in so doing it should act lawfully rather than arbitrarily is of equal importance. We think the whole record can be said to support the decree as we have construed it, and it is affirmed. Footnotes [1] ©sjFor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes