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

164 S.E.2d 737 (1968) 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, Intervening Additional Defendants.

No. 68SC123.

Court of Appeals of North Carolina.

December 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 applicant is not so qualified, it may refuse to grant the requested franchise. If the Board determines that the applicant is so qualified, it may, by ordinance, grant a nonexclusive franchise to such applicant. Provided, however, no provision of this ordinance may be deemed or construed as requiring the granting of a franchise when the Board determines that to do so would not be in the public interest."

Plaintiff appellee contends that under the above-quoted language of the ordinance, the defendant Board may refuse to grant a franchise only for either of two reasons: (1) That the applicant is not qualified or (2) that to grant the franchise would not be in the public interest. Plaintiff contends that absent a determination by the Board that one of these facts exists, the Board has no discretion in the matter and is under a positive duty to grant the franchise. We do not agree. In the first place, the language of the ordinance itself is permissive, not mandatory. Section 3(c) of the ordinance provides that if the applicant is found qualified, the Board may, by ordinance, grant a nonexclusive franchise to such applicant. Nothing in this language indicates that the Board is under a positive duty to grant franchises to every applicant found qualified to construct and operate a CATV system. The additional language in the proviso which makes it clear that the ordinance shall not be "deemed or construed as requiring the granting of a franchise when the Board determines that to do so would not be in the public interest," does not by implication make mandatory the preceding language which by its express provisions is permissive. Therefore, under the language of Section 3(c) of the Winston-Salem City Code, upon which plaintiff appellee bases its entire case, we find no mandatory duty imposed upon the Winston-Salem Board of Aldermen which can be enforced by a writ of mandamus requiring defendant Board to issue plaintiff a CATV franchise.

There is, however, a more fundamental reason why plaintiff's action must fail. Such procedures as are provided for and such duties as are imposed by the new Article IX of Chapter 15 of the Winston-Salem City Code are self-imposed by the governing body of that City itself. Nothing in the general law requires that the City either issue, or not issue, one or more CATV franchises to anyone. Nothing in the general law requires that it set up any procedures for the filing or consideration of applications for such franchises. The adoption by the City of a general ordinance setting forth the procedures for the filing and consideration of applications for CATV franchises did not vest in the plaintiff, or in any other applicant, any right which can be enforced by the Courts to force the City to grant to the plaintiff, or to any other applicant, a CATV franchise. The power to grant or to refuse to grant any such franchise remains vested solely in the governing body of the City. This power is essentially legislative in nature. Monarch Cablevision, Inc. v. City Council, City of Pacific Grove, 239 Cal. App. 2d 206, 48 Cal. Rptr. 550; 12 McQuillin, Municipality Corporations, 3rd Ed., § 34.22. Its exercise is entirely discretionary. Mandamus does not lie to compel performance of an act which requires the exercise of judgment and discretion on the part of the party against whom enforcement is sought. 5 Strong, N.C. Index 2d, Mandamus, § 1, p. 290, et seq. In this case it is not for the Courts of the State but for the Board of Aldermen who are duly elected by the people of Winston-Salem to decide under the law how many, to whom, and under what conditions CATV franchises will be issued in that City. If in exercising that judgment the Board of Aldermen should be influenced by the fact that one applicant is considered by it to be "home-owned" while another is not, plaintiff still has no legal cause to complain. All factors involved, including the extent of local ownership and control, may properly be considered in the selection of one to whom a franchise shall be granted to serve the public of a particular locality. In any event, the Courts may not inquire into the motives which prompt a municipality's legislative body to enact an ordinance which is valid on its face. Clark's Greenville, Inc. v. West, 268 N.C. 527, 151 S.E.2d 5.

Since on the record before us it does not appear that there is any reasonable probability that plaintiff will prevail at the final hearing of this cause, it was error to enter the order continuing the restraining order in effect and this cause is remanded to the Superior Court of Forsyth County for entry of an order in accordance with this opinion.

Reversed and remanded.

MALLARD, C. J., and BROCK, J., concur.