City of Dallas v. Cluck & Murphy

• Decision Date: 29 October 1921
• Docket Number: (No. 8700.)
• Citation: City of Dallas v. Cluck & Murphy, 234 S.W. 582 (Tex. App. 1921)
• Parties: CITY OF DALLAS v. CLUCK & MURPHY et al.
• Court: Texas Court of Appeals

234 S.W. 582

CITY OF DALLAS v. CLUCK & MURPHY et al.

(No. 8700.)

Court of Civil Appeals of Texas. Dallas.

October 29, 1921.

Rehearing Denied November 19, 1921.

Appeal from District Court, Dallas County; Kenneth Foree, Judge.

Suit for injunction by Cluck & Murphy against the City of Dallas and others. Judgment for plaintiffs, and the named defendant appeals. Affirmed, and motion for rehearing overruled.

J. J. Collins, Allen Charlton, and Carl B. Callaway, all of Dallas, for appellant.

Miller, Lewis & Thornton, of Dallas, for appellees.

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 was his 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 appellees, 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 for 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 C. 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.

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, that 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 68-70 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 a 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.

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 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 that 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...