State ex rel. Beasley v. Mayor and Aldermen of Town of Fayetteville

• Decision Date: 21 May 1954
• Citation: 32 Beeler 407,268 S.W.2d 330,196 Tenn. 407
• Parties: STATE ex rel. BEASLEY et al. v. MAYOR AND ALDERMEN OF TOWN OF FAYETTEVILLE et al. 32 Beeler 407, 196 Tenn. 407, 268 S.W.2d 330
• Court: Tennessee Supreme Court

Page 330

268 S.W.2d 330

STATE ex rel. BEASLEY et al. v. MAYOR AND ALDERMEN OF TOWN OF FAYETTEVILLE et al.

32 Beeler 407, 196 Tenn. 407, 268 S.W.2d 330

Supreme Court of Tennessee.

May 21, 1954.

John V. Matthews, of Holman, Holman & Matthews, and Robert W. Stevens, Fayetteville, for appellants.

Robert W. Simms and Arthur E. Simms, Jr., Fayetteville, for appellees.

BURNETT, Justice.

This suit was filed by the appellees against the Town of Fayetteville and others praying for the issuance of a writ of mandamus to compel the defendants to issue a permit to the appellees, plaintiffs below, to sell and distribute milk products within the corporate limits of said municipality. An alternative writ of mandamus and a writ of injunction was issued as prayed in the bill on the fiat of the Chancellor. A demurrer was filed, argued and overruled and then a demurrer was re-filed along with a sworn answer of the defendants. After the answer was thus filed the appellees, complainants below, moved the court for a peremptory writ of mandamus and an injunction enjoining the prosecution of certain of their drivers. The Chancellor sustained the prayer for this writ on eight of ten grounds prayed for. The defendants excepted to this order, prayed and have seasonably perfected their appeal. We now have the matter for determination.

For all intents and purposes the bill was patterned after the holding of this Court in State ex rel. Nashville Pure Milk Co. v. Town of Shelbyville, 192 Tenn. 194, 240 S.W.2d 239, 243. The averments of the bill brought the complainants, appellees, within the requirements as set forth in the Shelbyville case. The admissions made in the sworn answer likewise brought it within the averments of that case. In other words it was averred that the complainants had met all the milk requirements of the State of Tennessee and of the Health Department of the Town of Tullahoma, Tennessee. It was likewise averred and admitted that the Town of Fayetteville was operating under a Milk Ordinance, being the 1939 edition of the United States Public Health Service Milk Ordinance, which was the same ordinance that was involved in the Shelbyville case. The only difference in the ordinance involved in the instant case was a 1947 amendment thereto which will hereinafter be referred to. The complainants likewise averred and it was admitted in the answer that their milk had received a rating of 97.5% from the Tennessee Health Department.

This Court held in the Shelbyville case that where a recognized State controlled agency has given a milk concern a rating of 90% or more than 'it was contemplated by the governing authority of the Town of Shelbyville that local health officers would comply with it by issuing a permit. Any other construction of the ordinance would be unreasonable and in conflict with Code Sections 526 to 547.13, inclusive.' This Court further said in the Shelbyville case that:

'The governing authority of the Town of Shelbyville exercises its police powers pursuant to the express authority of the State. Any ordinance which it might enact relating to the inspection of dairies, and milk processing plants, must be reasonable and not in conflict with the general law. There could be no valid prohibition of the sale and distribution of articles of legitimate commerce within the municipality, which had been approved by duly constituted authority of the State and U. S. Public Health Service. The health authorities of every municipality must of necessity rely upon the rating given certain milk products by State and U. S. Agencies, or health officials of other municipalities, since periodical inspections of milk sheds in foreign jurisdictions cannot be made. The law indulges a presumption that inspection officers of every locality enforce the requirements of all health ordinances. If health officials and inspectors in a given locality refuse to give any recognition to a rating of milk products by other legally constituted health authorities they could thereby close the avenues of trade and commerce in violation of both State and Federal law.'

Thus following the announcement of this Court as above set forth the Chancellor on the bill and sworn answer admitting all necessary averments to bring the instant case within that pronouncement, properly granted the peremptory writ as prayed for. It was held in State ex rel. Stewart v. Marks, 74 Tenn. 12, that in a mandamus case where the defendant makes a return to the alternative writ, by answer under oath, as required by law, the relator is entitled to the benefit of all admissions contained in the return, and to the peremptory writ if the facts stated are not sufficient to constitute a defense.

Item 23 of the Uniform 1939 Milk Ordinance which was in effect in the Town of Fayetteville provided:

'Cooling--Milk must be cooled immediately after completion of milking to 50~F. or less, and maintained at that average temperature, as defined in Section 1(s) until delivery. If milk is delivered to a milk plant or receiving station for pasteurization or separation, it must be delivered within 2 hours after completion of milking or cooled to 70~F. or less and maintained at that average temperature until delivered.'

This section of the City Ordinance had been amended in 1947 by requiring slightly different number of degrees and also 'for the purpose of accomplishing immediate cooling a covered aerator shall be installed to the cooling equipment in the milk house'. Under the holding of the Shelbyville case, supra, this 1947 amendment made no difference because the complainant or relator was well within all requirements of the State law and was therefore entitled to the writ as prayed.

During the pendency of the present suit the Town of Fayetteville passed another amendment to its ordinance. This subsequent amendment was passed on July 13, 1953, and after the Chancellor had overruled the demurrer originally filed and after the peremptory writ had been granted. This amendment contains several provisions but insofar as it is necessary here to notice the only provision effecting the instant litigation is in words as follow:

'It shall be unlawful for any person, firm or corporation to bring into or receive in the Town of Fayetteville, or its police jurisdiction, for sale or to sell or offer for sale therein or to have in storage where milk, or milk...