Angelo v. City of Winston-Salem

• Decision Date: 26 January 1927
• Docket Number: 363.
• Citation: 136 S.E. 489,193 N.C. 207
• Parties: ANGELO et al. v. CITY OF WINSTON-SALEM et al.
• Court: North Carolina Supreme Court

136 S.E. 489

193 N.C. 207

ANGELO et al. v. CITY OF WINSTON-SALEM et al.

No. 363.

Supreme Court of North Carolina

January 26, 1927

Appeal from Superior Court, Forsyth County; Lane, Judge.

Action for permanent restraining order by E. J. Angelo and others against the City of Winston-Salem and others. From judgment refusing to grant permanent restraining order, plaintiffs appeal. Affirmed.

Exhibit No. 2 is as follows:

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This is an action instituted in the superior court of Forsyth county by plaintiffs, retail fresh meat and fish dealers, for the purpose of obtaining an order permanently restraining the defendants from enforcing an ordinance of the city of Winston-Salem, adopted June 18, 1926, prohibiting the sale of fresh meats or fish within a defined area of the city, except at the municipal market, the ordinance to become effective on and after December 1, 1926. From a judgment of the court below refusing such permanently restraining order, the plaintiffs assigned error, and appealed to the Supreme Court.

The necessary facts will be considered in the opinion.

Wallace & Wells and Raymond G. Parker, all of Winston-Salem, for appellants.

Parrish & Deal, of Winston-Salem, for appellees.

CLARKSON J.

The charter of the city of Winston-Salem (chapter 180, Private Laws 1915, § 44) provides:

"The board of aldermen shall have the power to enact ordinances in such form as they may deem advisable, as follows: *** To establish, regulate, and control the markets or market buildings; to fix the location of any market building prescribe the time and manner and place within the city wherein marketable articles, such as meats, perishable vegetables, fish, game, and all other kinds of perishable food or diet shall be bought or sold. *** On behalf of the general welfare of the city of Winston-Salem, and for the good order and government thereof, the board of aldermen may, in addition to the foregoing powers, pass or ordain any resolution or ordinance, and enforce the same by proper punishment or penalty, which it may consider wise or proper, not inconsistent with the Constitution and laws of the state." C. S. 2674, 2787, subsec. 20, and sections 2791, 2794.

The ordinance of Winston-Salem, enacted June 18, 1926, is as follows:

"Section 630. Adopted June 18, 1926, B-3827.

Be it ordained, (a) that, for the protection of the public health, and in order to facilitate inspection of fresh meats and sea food, for the enforcement of sanitary regulations, and for the general welfare of the community, it shall be unlawful for any person to sell or offer or expose for sale at retail any fresh meats or fowl, as defined in section 499 of the general ordinances, or fish, oysters or other fresh sea food, but not including wild game, at any place within that portion of the city hereinafter described, except at a stall or stand in the city market at the corner of Sixth and Cherry streets, duly licensed for that purpose. (b) That this section shall apply to the following territory: (Estimated from record by court). Such area extending approximately four-fifths of a mile from the new city market in every direction, and containing an area of 2.1 square miles. The total area of the city is 12.33 square miles. (c) That this section shall not effect or modify the provisions of sections 500 and 503 of the general ordinances, relating to the sale of fresh meats at wholesale, the sale as a whole of calves, hogs, goats or sheep, and the sale of sausage and other meat products as therein provided. (d) That this section shall be in effect from and after the 1st day of December, 1926."

The defendants allege and contend in substance: That prior to July 1, 1925, the city maintained a public market at the old city hall on Fourth and Main streets. This market had become inadequate, and the city undertook the erection of a new and adequate municipal market, completing the same July 1, 1925, at the following cost:

Grounds ....	$133,787 00
Buildings ...	224,813 19
Equipment ....	88,819 56
	$447,419 75

This market building is splendidly designed and equipped. It is located on a lot 175 fee by 420 feet. It is built of brick and concrete, of fireproof construction. It is approximately 100 feet wide and 245 feet deep. The grounds are equipped with refrigerators and refrigerator counters for meat markets, an adequate number of stalls equipped as fish markets, and an adequate number of grocery and provision stalls. It also contains ample space to meet all needs for a long time to come. The offices of the meat inspectors of the city are located on the main floor of the market building. The basement of the market contains storage rooms and refrigerating and heating equipment. It contains a modern ammonia-compressor refrigerating system, which will maintain low temperatures in every refrigerator and refrigerator counter in the market, with which each market stand in the market is equipped. The photographs filed as exhibits, showing the exterior and interior and equipment of the market building, fully corroborate the above statements.

The market building is conveniently and centrally located. It is located as nearly in the center of the city as it is possible for it to be, on Sixth and Cherry streets, each of which are 60 feet in width, which is the width of all business streets in the city of Winston-Salem. It is within one block of the Robert E. Lee Hotel; within two blocks of the 18-story Nissen building, the largest building in the city; one and one-half blocks of North Liberty street, one of the most important streets in the city of Winston-Salem, on which is located a street car line; and three and one-half blocks from the courthouse square.

The rentals for spaces in the market have been fixed by the board of aldermen at fair and reasonable rates. Efficient management has been provided for the market. Reasonable and proper ordinances for the purpose of maintaining the market in a sanitary condition have been adopted, and machinery provided for their enforcement.

While the record does not show that existing markets in the territory affected by the ordinance in question are insanitary or are operated in violation of ordinances at present in effect, it does show that the conditions in the markets in such territory do not compare favorably with conditions in the city market, as to buildings, equipment and general sanitary conditions; that the inspection of the meat market can be much more easily and efficiently performed by the meat inspectors of the health department by reason of the fact that all markets in the central portion of the city will be located in the city market.

This market is not operated by the city for the purpose of revenue or profit, but for the purpose of protecting the health and promoting the general welfare of the city. Assuming the market operated at full capacity, there would still be a deficit to be met out of the general funds of the city.

On June 18, 1926, the board of aldermen of the city of Winston-Salem enacted an ordinance which will, after December 1, 1926, make it unlawful to sell at retail fresh meats or sea foods at any place within a defined area of the city except in the city market, such area extending approximately four-fifths of a mile from the new city market in every direction, and containing an area of 2.1 square miles. The total area of the city is 12.33 square miles.

This zone includes the main business and retail parts of the city. Retail meat and fish markets have been maintained in it for years, and, of course, sanitary regulations have been in effect as to such places of business for a long time. Ordinances of the city already in effect prior to June 18, 1926, are set out in the complaint. No licenses or permits have been issued by the city to the plaintiffs or to any other persons to engage in the business of retail meat or fish dealers within such area after December 1, 1926.

The court below took judicial notice of the fact that it is one of the prima facie duties of a municipality to protect the health of its inhabitants by means of careful inspection of perishable foods, such as meats and fish, by means of the enactment of adequate sanitary regulations and their proper enforcement; also that, while particular individuals may operate meat and fish markets in an entirely sanitary manner, yet this business in general is one which requires careful inspection and supervision, or abuses will arise greatly to the detriment of the public. Practically all legislative bodies having jurisdiction over this subject have enacted such legislation.

The plaintiffs, on the other hand, allege and contend, in substance: That this action is by twenty-one market owners who have invested $71,134, and whose good will and going business is worth $50,000, handling fresh meat and sea food in Winston-Salem, asking that the defendants be permanently restrained from putting into effect an ordinance of the city of Winston-Salem adopted by the board of aldermen on June 18, 1926. The ordinance provides a zone, covering only a part of the incorporation of Winston-Salem, in which territory are the places of business of the plaintiffs, and attempts to legislate them out of business, wrecking their businesses, rendering valueless large investments, and destroying their vested rights, by providing that, after December 1, 1926, no market or place of business handling fresh meat or fresh sea food shall be carried on, except in a market building owned by the city. Prior to the adoption of the ordinance in question, the city of Winston-Salem passed the most rigid ordinances relative to the handling of such food, and requiring the most up to date sanitary and refrigerating...