Penn-Dixie Cement Corp. v. City of Kingsport, PENN-DIXIE

Decision Date17 December 1949
Docket NumberPENN-DIXIE
Citation225 S.W.2d 270,25 Beeler 450,189 Tenn. 450
Parties, 189 Tenn. 450 CEMENT CORPORATION v. CITY OF KINGSPORT.
CourtTennessee Supreme Court

Penn, Hunter, Smith & Davis, Kingsport, for plaintiff in error.

Dodson & Dodson, and H. Marvin Parsons, Kingsport, for defendant in error.

NEIL, Chief Justice.

We granted certiorari in this case because it involved the power of municipalities to enact ordinances for the abatement of smoke and dust issuing from manufacturing plants to the injury of the health of the people. Counsel for the plaintiff in error and the defendant have discussed the case at length both in oral argument and by filing elaborate briefs.

While several assignments of error have been filed with the record the real question for our decision is whether or not Ordinance No. 970 of the City of Kings- port is authorized by its charter or the general law, and is in violation of the State and Federal Constitution. The Court of Appeals held that it was valid in that it rested upon express legislative authority or was clearly implied.

The plaintiff in error, in its several assignments of error, challenges the correctness of the court's opinion, complaining that the order affirming the trial court is erroneous because (1) 'Ordinance No. 970 is not based upon charter powers granted by the General Assembly of Tennessee, or by any general or special legislation', (2) 'Ordinance No. 970 is ultra vires and not referable to the police power granted the City of Kingsport by Chapter 76 of the Private Acts of the General Assembly for the year 1917, or any amendment thereto', (3) the Ordinance is violative of the State and Federal Constitution.

There were three separate complaints filed against the plaintiff in error which charged it with a failure to comply with the Ordinance in question. Upon conviction there was an appeal prayed and granted.

The preamble to the Ordinance recites in substance that it is 'for the purpose of promoting the health, safety and general welfare of the community'; that 'following an extensive study of the problem of smoke, dust and air pollution in the City of Kingsport prior to and at the time the Ordinance was passed, indicated that present conditions are detrimental to the health, safety and general welfare of the community', and that the said Ordinance had been approved by a vote of the citizens in a referendum election. Following the aforesaid preamble the Ordinance provides:

'The emission of dense smoke within the City of Kingsport from the smoke stack of any roller, derrick, railroad, tar kettle, internal combustion engine or open fire, or from smoke stack or chimney of any building, round house or premises, except for a period of or periods aggregating nine minutes of density No. 2 smoke as defined by the Ringelmann Chart, or six minutes or less of a density in excess as defined by the Ringelmann Chart, in any one hour at the time when the fire box is being cleaned out or a new fire is being built therein, * * * is prohibited, and is hereby declared to be a nuisance and may be summarily abated by the Director of Air Pollution Control or by any one whom he may duly authorize for such purpose.

* * *

* * *

'Smoke shall be considered dense when equal to or greater density than No. 2 of said chart.'

Section 2 of Article XI of the Ordinance provides a penalty for allowing 'soot, cinders, dust or gases' to escape from any window or opening in any building in such quantities as to constitute a nuisance.

The authority of the city to enact the Ordinance is challenged on the ground that the General Assembly of Tennessee had not delegated to it the right to enforce police powers which involved the abatement or regulation of the excessive accumulation of smoke and dust. Contention is further made that the city could not by Ordinance declare that to be a nuisance which was in fact not a nuisance, and for this reason Ordinance No. 970 is invalid.

There is no question but that the great weight of authority supports the proposition that a municipality 'has no inherent authority to enact ordinances whose validity and enforcement rests upon general police powers.' Miller v. City of Memphis, 181 Tenn. 15, 178 S.W.2d 382, 384, 151 A.L.R. 1172, and cases cited. We must therefore look to the charter of the City of Kingsport, Chapter 76, Private Acts of 1917, and the general law for authority to enact Ordinance 970. Under the charter the city was authorized to enact Ordinances as follows:

'To define and prohibit, abate, suppress, prevent, and regulate all acts, practices, conduct, business, occupations, callings, trades, uses of property and all other things whatsoever detrimental or liable to be detrimental to the health, morals, comfort, safety, convenience, or welfare of the inhabitants of the city, and to exercise general police powers.

* * *

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'To have and exercise all powers which now or hereafter it would be competent for this charter specifically to enumerate, as fully and completely as though said powers were specifically enumerated herein.

'The enumeration of particular powers in this charter is not exclusive of others, nor restrictive of general words or phrases granting powers, nor shall a grant or failure to grant power in this article impair a power granted in any other part of this charter; and whether powers, objects or purposes are expressed conjunctively or disjunctively, they shall be construed so as to permit the city to exercise freely any one or more such powers as to any one or more such objects for any one or more such purposes.' Art. 1, §§ 2(22, 34), 3.

Under Subsections 22 and 23 of Section 3528 of the official Code, relating to corporate powers, authority is conferred as follows:

'Regulation of business, callings, etc.--To define, prohibit, abate, suppress, prevent, and regulate all acts, practices, conduct, business, occupations, callings, trades, uses of property and all other things whatsoever detrimental, or liable to be detrimental, to the health, morals, comfort, safety, convenience, or welfare of the inhabitants of the city, and to exercise general police powers.

'Limits occupations liable to become a nuisance.--To prescribe limits within which business occupations and practices liable to be nuisances or detrimental to the health, morals, security or general welfare of the people may lawfully be established, conducted or maintained.'

The foregoing sections of the Code must be considered as a part of the charter of Kingsport, as well as that of other municipalities. The argument is made by able counsel that these Code Sections are insufficient as authority to enact the Ordinance because of a failure therein to expressly authorize it. In other words it is insisted that the city can pass no Ordinance to control dust or smoke unless the charter of the city, or by general law, expressly declares that the accumulation of smoke and dust is a public nuisance and subject to municipal control. In response to this contention the Court of Appeals said, among other things:

'The emission of dense smoke and dust into the atmosphere in populous cities may be declared a public nuisance and dealt with appropriately, under a general power to define and abate nuisances or to enact ordinances in behalf of the public health and welfare, since the emission of such smoke and dust is an annoyance and an interference with comfort, is destructive of property and under some conditions injurious to health. 37 Am.Jur. Sec. 295, p. 939; [Freeman v. Inhabitants of Bourne, 170 Mass. 289, 49 N.E. 435], 39 L.R.A. 511, [Atlantic City v. France, 75 N.J.L. 910, 70 A. 163], 18 L.R.A.,N.S., 156 and [City of Rochester v. Macauley-Fien Milling Co., 199 N.Y. 207, 92 N.E. 641], 32 L.R.A.,N.S., 554; [Union Stock Yards Co. of Omaha v. Chicago, B. & Q. R. Co., 196 U.S. 217, 25 S.Ct. 226, 49 L.Ed. 453], 2 Ann.Cas. 528, [Bowers v. City of Indianapolis, 169 Ind. 105, 81 N.E. 1097], 13 Ann.Cas. 1201 and [People v. Detroit, Belle Isle and Windsor Ferry Co., 187 Mich. 177, 153 N.W. 799], Ann.Cas. 1918B, 173; McQuillin Municipal Corp. (2d) Sec. 962, p. 167.

'In Vol. 3 of McQuillin on Municipal Corporations, (2nd Ed.), it is said:

"It is generally recognized that whatever is injurious to human life or detrimental to health, or whatever deprives the inhabitants of pure, uncontaminated and inoffensive air, constitutes a public nuisance. The knowledge is common that smoke discharged from the numerous establishments in crowded urban centers, particularly in crowded urban centers, particularly in industrial and manufacturing tory, and that when dense, the falling soot renders...

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    ...have broad, inherent powers to enact legislation to protect the health and safety of their citizens. Penn Dixie Cement Corp. v. Kingsport, 189 Tenn. 450, 225 S.W.2d 270 (1949). In addition, the State of Tennessee has conferred broad police power upon Metropolitan governments. Tenn.Code Ann.......
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