National Linen Service Corp. v. City of Norfolk

• Decision Date: 08 September 1954
• Citation: 83 S.E.2d 401,196 Va. 277
• Court: Virginia Supreme Court
• Parties: NATIONAL LINEN SERVICE CORPORATION, TRADING &C. v. CITY OF NORFOLK, A MUNICIPAL CORPORATION, AND EDWIN RUSSELL HOUSE, SUPERINTENDENT &C

Page 401

83 S.E.2d 401

196 Va. 277

NATIONAL LINEN SERVICE CORPORATION, TRADING &C. v. CITY OF NORFOLK, A MUNICIPAL CORPORATION, AND EDWIN RUSSELL HOUSE, SUPERINTENDENT &C.

Supreme Court of Appeals of Virginia

September 8, 1954.

Sacks & Sacks, for the appellant.

Jonathan W. Old, Jr. and Joseph E. Baker, for the appellees.

JUDGE: SMITH

SMITH, J., delivered the opinion of the court.

The appellant, National Linen Service Corporation, trading as Norfolk Linen Service, instituted this suit against the city of Norfolk and Edwin Russell House, Superintendent of Dairy and Food Division of the city of Norfolk, praying that § 19-28, Article 1, of the 1950 Code of the City of Norfolk ¹ 'be declared null, void and unconstitutional; that the said Edwin Russell House, his agents and servants be permanently enjoined and restrained from prohibiting the use of sanitary cloth towels in restaurants in the city of Norfolk.'

The evidence was heard ore tenus and by its decree of August 3, 1953, the trial court held that the ordinance complained of was valid, and that 'the towels in evidence as used in food establishments are common towels,' and dismissed the bill.

The record shows that for the past twenty-one years the appellant has been engaged in the business of laundering and supplying linens and cloth towels in the city of Norfolk and a large portion of this business consisted of renting and supplying cloth towels to food establishments. These towels are of two types. The first type is fifty yards long and wound on a roller which is placed in a cabinet in such fashion that as much of the towel as the prospective user wants is released by pulling. The towel is so arranged that the used portion is wound on another roller in the back of the cabinet. When the entire roll is used a small part of the end extends from the cabinet showing that all the towel has been used. The second type consists of as many as 125 individual cloth towels on a chain. After each of these individual towels has been used it is dropped down the chain into an open receptacle on the floor. It is undisputed that the appellant delivers both types of towels to the various food establishments in Norfolk cleanly washed, laundered and sanitary and that it will furnish a customer with as many of the towels as he wants.

As stated by the appellant, two questions are presented by its eight assignments of error: 1. Is § 19-28 of the Code of the City of Norfolk invalid? 2. Are the towels supplied by the appellant to food establishments in the city of Norfolk common towels? We shall first consider the question of validity of the ordinance.

The rule is generally recognized that municipal corporations are prima facie sole judges respecting the necessity and reasonableness of their ordinances, and the presumption of their validity governs unless it is overcome by unreasonableness apparent on the face of the ordinance or by extrinsic evidence which clearly establishes the unreasonableness. This presumption is based upon the broad general principle that every intendment will be made in favor of the lawfulness of the exercise of municipal power. Repass v. Town of Richlands, 163 Va. 1112, 178 S.E. 3; Wood v. City of Richmond, 148 Va. 400, 138 S.E. 560; Elsner Brothers v. Hawkins, 113 Va. 47, 73 S.E. 479; Wagner v. Bristol Belt Line Co., 108 Va. 594, 62 S.E. 391; 5 McQuillin on Municipal Corporations, (3rd ed.), § 18.23, p. 455.

While there is thus a presumption in favor of the propriety and validity of municipal ordinances, if the city abuses the confidence reposed, the courts will not hesitate to declare its acts void. The reason for this rule is that there is an implied restriction that the city's enactments will be reasonable, consistent with the general law and policy of the state, uniform in their operation, and promotive rather than destructive of lawful business and occupations. Danville v. Hatcher, 101 Va. 523, 44 S.E 723; 5 McQuillin on Municipal Corporations, (3rd ed.), § 18.04, p. 392; 13 Michie's Jurisprudence, Municipal Corporations, § 27, p. 396.

'It is settled by the concurrence of almost innumerable authorities that a municipal ordinance is required not only to be constitutional, but to be reasonable as well, where it is enacted under general charter powers, general state statutes affecting municipalities, or other general or implied grant of power. The ordinance must, according to the explicit statement of many of the courts, attain reasonableness by being fair, general, and impartial in operation, not in conflict with common right, and not unduly oppressive upon individuals.' 37 Am. Jur., Municipal Corporations, § 157, at page 770.

The rule in Virginia has been stated by Justice Hudgins, now Chief Justice, in Richmond-Ashland v. Commonwealth, 162 Va. 296, 307, 173 S.E. 892, thus:

''Where the legislature in terms, confers upon a municipal corporation the power to pass ordinances of a specific and defined character, if the power thus delegated be not in conflict with the Constitution, an ordinance passed pursuant thereto cannot be impeached because it would have been regarded as unreasonable if it had been passed under the incidental power of the corporation, or under a grant of power general in its nature. In other words, what the legislature distinctly says may be done cannot be set aside by the courts because they may deem it unreasonable, or against sound policy. But where the power to legislate on a given subject is conferred, and the mode of its exercise is not prescribed, then the ordinance passed in pursuance thereof must be a reasonable exercise of the power, or it will be pronounced invalid.''

Hence the authority conferred under a general or implied grant of power must be exercised reasonably, in good faith, and bear a real and substantial relation to the public health, safety, morals or general welfare of the city's inhabitants. In addition, ordinances which in their operation necessarily restrain competition and tend to create monopolies or confer exclusive privileges are generally condemned. Whether a particular ordinance enacted pursuant to a general grant of power is arbitrary and unreasonable, and therefore void, is a question for the court, and there is no specific formula by which its reasonableness can be tested. However, the court will consider all the circumstances; not only what has been done under the ordinance but what may be done, the objects sought to be attained and the necessity which exists for the ordinance. Richmond-Ashland v. Commonwealth, supra; Richmond v. Model Steam Laundry, 111 Va. 758, 69 S.E. 932; Standard Oil Co. v. Charlottesville, 42 F. (2d) 88; 5 McQuillin on Municipal Corporations, (3rd ed.), §§ 18.06, 18.16, pp. 396, 434.

Thus, an ordinance in Parrish v. Richmond, 119 Va. 180, 89 S.E. 102, regulating the granting of a license to operate a car for hire which required the applicant to be the owner of the vehicle, was held unreasonable and therefore void. See also, Kirkham v. Russell, 76 Va. 956. On the other hand, an ordinance in City of Roanoke v. Fisher, 137 Va. 75, 119 S.E. 259, which prohibited the business of selling diamonds, watches and clocks at public auction between 6:00 p.m. and 8:00 a.m., was held valid because of the difficulty of inspecting the goods or determining their value under artificial light and because purchasers had been and would be misled and defrauded at sales during the prohibited hours. For other examples, see 5 McQuillin on Municipal Corporations, (3rd ed.), c. III, Restraint of Trade, Business of Occupations, p. 434.

Section 19-28 of the Code of the City of Norfolk, here attacked, was enacted under the authority of a general grant of power from the legislature. ² It prohibits 'the use of any common towel in any food establishment' and provides that there 'shall be provided sanitary paper towels. ' There is some uncertainty as to whether this ordinance prohibits the use of all towels except sanitary paper towels or whether non-common sanitary towels not made of paper may be used in addition to sanitary paper towels. The trial court took the view that the ordinance required that sanitary paper towels be used to the exclusion of all others. The appellees' view is expressed in the argument of counsel before this court that even if cloth towels were wrapped in cellophane and could be used only one time, still food establishments in the city of Norfolk would be required by § 19-28 to provide sanitary paper towels.

The appellant contends that the ordinance so construed is invalid because: 1. It is unreasonable, arbitrary, oppressive, and bears no real or substantial relation to the protection of the public health, since sanitary cloth towels are, indisputably, as safe for the public health as sanitary paper towels. 2. There is no reasonable distinction between the use of a sanitary cloth towel and a sanitary paper towel and therefore the ordinance arbitrarily discriminates in favor of persons and corporations selling paper towels by giving them an unfair monopoly against persons and corporations furnishing sanitary cloth towels. 3. It is in conflict with § 19-9 of the Code of the City of Norfolk, ³ and § 32-60 of the Code of Virginia. ⁴

The appellees, on the other hand, say § 19-28 is not unreasonable, arbitrary, oppressive, discriminatory or monopolistic because it tends to prevent the spread of disease by assuring a single use of each towel, which is the only practical way to attain this aim; and that it has a direct relation to the public health and is appropriate to that end under the authority of § 2, subsections (16) and (23) of the Charter of the City of Norfolk. See footnote 2, supra. More specifically, the appellees say that although appellant's towels may be sanitary when delivered they are more apt to be misused than paper towels; that paper towels are more easily obtained when food establishments run out of towels; that the patrons of food...