Cablevision of Winston-Salem, Inc. v. City of Winston-Salem

• Decision Date: 18 December 1968
• Docket Number: WINSTON-SALEM,No. 68SC123,WINSTON-SALE,INC,68SC123
• Citation: 164 S.E.2d 737,3 N.C.App. 252
• Parties: CABLEVISION OF, Plaintiff, v. CITY OF, a municipal corporation et al., Original Defendants, Triangle Broadcasting Corporation and Crescent Cablevision Company, InterveningAdditional Defendants.
• Court: North Carolina Court of Appeals

Page 737

164 S.E.2d 737

3 N.C.App. 252

CABLEVISION OF WINSTON-SALEM, INC., Plaintiff, v. CITY OF WINSTON-SALEM, a municipal corporation et al. Original Defendants Triangle Broadcasting Corporation and Crescent Cablevision Company, InterveningAdditional Defendants.

No. 68SC123.

Court of Appeals of North Carolina.

Dec. 18, 1968.

Jordan, Wright, Henson & Nichols, by Welch Jordan and William L. Stocks, Greensboro, for plaintiff appellee.

Womble, Carlyle, Sandridge & Rice, by W. F. Womble and John L. W. Garrou, Winston-Salem, for original defendants appellants.

Craige, Brawley, Horton & Graham, by William T. Graham, Winston-Salem, for intervening defendant appellant, Crescent Cablevision Co.

Hatfield, Allman & Hall, by Weston P. Hatfield and C. Edwin Allman, Jr., Winston-Salem, for intervening defendant appellant, Triangle Broadcasting Corporation.

FRANK M. PARKER, Judge.

Appellants assign as error entry of the order continuing the injunction in effect Pendente lite. Appeal from an interlocutory order of this type is not considered premature and will be entertained by this Court if a substantial right of the appellant would be adversely affected by continuance of the injunction in effect pending final determination of the case. G.S. § 1--277; Board of Provincial Elders of Southern Province of Moravian Church v. Jones, 273 N.C. 174, 159 S.E.2d 545; Western Conference of Original Free Will Baptists of North Carolina v. Creech, 256 N.C. 128, 123 S.E.2d 619. In the present case the order appealed from restrained the governing body of the City of Winston-Salem from exercising its legislative function in dealing with a matter of large public interest to the citizens of that City. A substantial right of appellant City has been adversely affected. Appeal from the order is, therefore, not premature.

While the granting or refusal of an injunction sought as a subsidiary remedy in aid of another action is addressed to the sound discretion of the court, in order to justify continuing the writ until the final hearing ordinarily it must be made to appear that there is probable cause the plaintiff will be able to establish its asserted right at the final hearing. Edmonds v. Hall, 236 N.C. 153, 72 S.E.2d 221; 2 McIntosh, N.C. Practice 2d, § 2216. In the present case plaintiff seeks as its primary relief a Writ of Mandamus to compel the Board of Aldermen of the City of Winston-Salem to consider in good faith plaintiff's application for a CATV franchise, to act thereon in good faith pursuant to the provisions of Section 3(c) of the City's 6 November 1967 ordinance, 'and thereupon to adopt an ordinance granting a franchise to the plaintiff as requested in the plaintiff's application therefor.' This appeal, therefore, presents the question whether on the present record plaintiff has shown a reasonable probability that it will be entitled upon final determination of the case to the Writ of Mandamus which plaintiff asserts it has a right to receive. Furthermore, in reviewing on appeal an order granting or continuing an interlocutory injunction in effect pending final determination of the case, this Court is not bound by the findings of fact made by the trial court, but may review and weigh the evidence and find the facts for itself. Princeton Realty Corp. v. Kalman, 272 N.C. 201, 159 S.E.2d 193; State of North Carolina Milk Commission v. National Food Stores, 270 N.C. 323, 154 S.E.2d 548; Western Conference of Original Free Will Baptists of North Carolina v. Creech, supra. In this case the documentary evidence submitted to the trial court at the hearing which was held to determine if the restraining order should be continued in effect Pendente lite included a copy of the minutes of the 2 January 1968 meeting of the defendant Board of Aldermen. This evidence shows, contrary to the finding of fact made by the trial court, that the defendant Board did give careful consideration to plaintiff's application for a CATV franchise.

The nature and purposes of a community antenna television system, popularly referred to as CATV, have heretofore been made the subject of judicial consideration in our Supreme Court and require no further description here. See Kornegay v. City of Raleigh, 269 N.C. 155, 152 S.E.2d 186; Shaw v. City of Asheville, 269 N.C. 90, 152 S.E.2d 139. A growing public interest and the need to clarify municipal authority in respect to CATV resulted in enactment of Chapter 1122 of the 1967 Session Laws, which added a new subsection (6a) to G.S. § 160--2. This statute authorized a city or town '(t)o grant upon reasonable terms franchises for the operation of cable television systems, such grants not to exceed the period of 20 years, to levy reasonable franchise taxes under authority of G.S. 160--56 on the business of operating cable television systems, and to prohibit the operation of cable television systems without a franchise.' Under authority of this statute the defendant Board of Aldermen of Winston-Salem on 6 November 1967 enacted a general ordinance as an addition, designated as a new Article IX to Chapter 15, to the Winston-Salem City Code.

G.S. § 160--2(6a) is a grant of power to cities and towns. It imposes no duties. Plaintiff appellee recognizes this, and bases its case upon the contention that the duties, performance of which it seeks to enforce by Writ of Mandamus, were imposed upon defendant Board of Aldermen, not by the statute, but by the new Article IX of Chapter 15 of the Winston-Salem City Code. In particular, plaintiff appellee contends that the language of Section 3(c) of the new Article IX of Chapter 15 of the Winston-Salem City Code, imposes a mandatory duty upon the Board to consider any application made to it for a CATV franchise as provided for in Section 3(b) of said Article and upon such consideration to 'determine the applicant's qualifications to construct, operate and maintain a CATV system and to provide a CATV service in accordance with the provisions' of the ordinance. Plaintiff appellee then cites the following language of Section 3(c) of the ordinance:

'If the Board determines that the...