City of Jackson v. Hoyel
| Citation | 465 S.W.2d 736,91 S.Ct. 1636,62 Tenn.App. 536 |
| Parties | CITY OF JACKSON, Tennessee, Plaintiff-Appellee, v. Hubert HOYEL, Defendant-Appellant. |
| Decision Date | 16 June 1970 |
| Court | Court of Appeals of Tennessee |
Hughie Ragan, Jackson, for defendant-appellant.
Robert Holt, Jackson, for plaintiff-appellee.
Upon the trial below the jury found the defendant, Hubert Hoyel, guilty of carrying on the business of plumbing without a permit and license from the City of Jackson, Tennessee. The jury fixed his fine at $18.50 and he has appealed and assigned error.
The defendant, Hoyel, did not testify. The plaintiff, City of Jackson, offered only two witnesses. John L. Spain, City Recorder for the City of Jackson, Tennessee, since December 1, 1965, testified that a part of his duties was keeping up with the ordinances of the City of Jackson, Tennessee; that by Ordinance No. 1968--13 which was adopted by the City Commission of Jackson, Tennessee, on May 24, 1968, the 1967 edition of the Southern Standard Plumbing Code was made a part of the Plumbing Code of the City of Jackson; that said ordinance recited that it was adopted pursuant to authority of Section 6--620 Tennessee Code Annotated and incorporated in the Code of Ordinances by reference.
He further testified that Section 8--58 of the Plumbing Code which was in full force and effect on November 18, 1968, was as follows:
'Q.19. It isn't necessary to read the references; just read the next section.
A. 'Section 8--58. Plumbers Certificates, Subsection (a).
It shall be unlawful for any person to install plumbing in the city as a journeyman without having first made application to the plumbing inspector for a permit or certificate to work as a journeyman plumber, and a board consisting of the commissioner of public utilities, the city engineer and the plumbing inspector shall examine all applicants for certificates as journeyman plumbers, and if they are qualified by experience and a general knowledge of the plumbing trade, a suitable card or certificate shall be issued by the plumbing inspector to such applicants as are qualified, and such card or certificate shall authorize the recipient to do plumbing work as an agent or employee of any firm, shop or master plumber properly licensed as such.
It shall be unlawful for any person to engage in, work at, or operate any plumbing business as a master plumber unless he shall first make application to the plumbing inspector for a permit or certificate to work as a master plumber and the board, under suitable rules and regulations for the enforcement of this provision, shall give him an examination and if qualified by experience and general knowledge, a suitable certificate shall be issued by the plumbing inspector to such person and such certificate shall authorize the recipient to engage in, work at or operate any plumbing business as a master plumber.
It shall be unlawful for a property owner and any other person under contract or responsible to said property owner for the installation or repair of plumbing on the property, to hire, supervise, or allow any person to install or repair plumbing, or to work as a master or journeyman plumber on said property in violation of this section or any other ordinance requiring said person to be licensed, or in violation of any ordinance requiring a permit to be issued for said work.
Nothing in this section shall prevent any home owner from installing plumbing fixtures or repairing existing plumbing within his own property wherein he resides, providing such plumbing work is done by himself and is used exclusively by him or his family. Such privilege does not convey the right to violate any of the provisions of this code, nor is it to be construed as exempting any such property owner from obtaining a permit and paying the required fees therefor.
Each person to whom a certificate as a journeyman is issued shall pay the sum of Twenty-five dollars therefor and he shall pay five dollars for each annual renewal thereof.
Each person to whom the certificate as master plumber is issued shall pay the sum of twenty-five dollars therefor and he shall pay five dollars for each annual renewal thereof.
All such fees shall be used to defray the expenses of examining, inspecting and otherwise enforcing the provisions of this section and they shall be paid into the hands of the city treasurer for that purpose.
Subsection (b) All other provisions of this Code and of any plumbing code adopted by reference and in conflict herewith are hereby modified to the extent of such conflict."
Further, he testified that Section 106.2 of the Southern Standard Plumbing Code relating to penalties provided as follows:
Finally, Mr. Spain testified that Section 1--8 of the City Code provided as follows:
'Section 1--8. General Penalty; Continuing Violations.
Whenever in this Code or any ordinance of the city any act is prohibited or is made or declared to be unlawful or an offense or a misdemeanor, or whenever in such Code or ordinance the doing of any act is required or the failure to do any act is declared to be unlawful, where no specific penalty is provided therefor, the violation of any such provision of this Code or any ordinance shall be punished by a fine not exceeding fifty dollars for each such violation; provided, however, that the infliction of a fine under the provisions of this section shall not prevent the revocation of any permit or license or the taking of other punitive or remedial action where called for or permitted under the provisions of the city's Charter or Code. The city judge shall fix the amount of any fine to be levied under the provisions hereof as his discretion may dictate.
Each day any violation of this Code or of any ordinance continues shall constitute a separate offense, punishable as such.
Where any act of the General Assembly of the state provides for a greater minimum fine or penalty than One Dollar, not less than said minimum fine or penalty shall be assessed by the city judge.'
J. D. Vandiver, Plumbing Inspector for the City of Jackson, Tennessee, since October, 1966, age 68, testified that he had had thirty years' experience as a journeyman plumber; that on November 8, 1968, he received information that plumbing work was being done at a house located at 111 Central Street in jackson; that he went to the house which was unoccupied to inspect the plumbing work; that he used his flashlight to look under the house and saw the defendant in the process of wrapping okum around a soil pipe under the bathroom; that he saw defendant packing the okum down with a caulking knife. Mr. Vandiver testified that Hoyel did not have a license either as a master plumber or journeyman plumber from the City of Jackson, Tennessee, nor did he have a permit to do plumbing work at 111 Central Street in the City of Jackson and that he also saw him doing plumbing work at 216 Southern Street in Jackson, Tennessee, and procured warrants for his arrest for two separate offenses. The defendant was tried on both charges at the same time but the jury acquitted him of the charge with reference to 216 Southern Street. The jury found him guilty of doing plumbing work without a permit and license at 111 Central.
Assignment of error No. III insists that the testimony of Mr. Vandiver was inadmissible because the result of an illegal search of the premises at 111 Central Street. There is no proof of ownership of 111 Central Street and certainly no proof that the defendant, Hubert Hoyel, was the owner of the premises at 111 Central Street. The implications of the testimony in the record are that Hubert Hoyel did not own the premises at 111 Central Street.
One who does not claim ownership of the premises searched or that he had them leased or was making his home thereon cannot contend that his constitutional rights were invaded by the search. Moody v. State,159 Tenn. 245, 17 S.W.2d 919. This assignment of error is respectfully overruled.
Assignment of error No. IV complains of the action of the Trial Court in stating in substance that the City of Jackson could adopt the Southern Standard Plumbing Code, 1967 edition, and incorporate it by reference in the ordinances of the City of Jackson regardless of whether the copy of the Code was, in fact, in City Hall when as a matter of fact T.C.A. Section 6--621 provides that three copies must be on...
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