Town of Jonesboro v. Kincheloe

• Decision Date: 10 November 1923
• Citation: 257 S.W. 418,148 Tenn. 688
• Parties: MAYOR AND ALDERMEN OF TOWN OF JONESBORO v. KINCHELOE.
• Court: Tennessee Supreme Court

257 S.W. 418

148 Tenn. 688

MAYOR AND ALDERMEN OF TOWN OF JONESBORO v. KINCHELOE.

Supreme Court of Tennessee.

November 10, 1923

Certiorari to Court of Civil Appeals.

Action by the Mayor and Aldermen of Town of Jonesboro against E. H Kincheloe. Judgment for defendant was affirmed by the Court of Civil Appeals, and plaintiff brings certiorari. Reversed and remanded.

CHAMBLISS J.

The question presented on this appeal involves the construction of an ordinance passed by the town of Jonesboro prohibiting the keeping of calves overnight within the corporate limits in such manner as that residents of the town will be disturbed by their noises; the pertinent section of the ordinance reading as follows:

"Be it ordained by the mayor and aldermen of Jonesboro, that it shall be unlawful for any person. firm, or corporation to keep, or allow to be kept on his, their or its premises, within the corporate limits of said town, calves over night, for the purpose of sale or shipment, in such way or manner as that they will disturb the residents thereof by their noises."

The validity of this ordinance was attacked in the circuit court upon the grounds that it was unreasonable and indefinite. The circuit court sustained the attack solely upon the ground of its alleged indefiniteness. From this judgment the town brought the case to the Court of Civil Appeals for review. That court affirmed the judgment below, holding the ordinance to be too indefinite and also unreasonable. In view of the fact that the plaintiff below did not appeal from the judgment of the Circuit Court, and that the assignment of error presented in the Court of Civil Appeals raised solely the question of the alleged indefiniteness of the ordinance it is insisted that this was the sole question proper for consideration by that court, and is the sole question presented here. It is difficult, and perhaps unnecessary, to draw this distinction, for the question of uncertainty or indefiniteness is involved in the rule of reasonableness, as an ordinance is unreasonable unless it is "certain in its definition of the offense, and certain in the penalty inflicted by it."

In considering the validity of this ordinance the rule of construction is that laid down in Carroll Blake Cons. Co. v. Boyle, 140 Tenn. 181, 203 S.W. 948, to the effect that, where an ordinance, like a statute, "is susceptible of two constructions one of which will render it void and the other valid it is the duty of the court to adopt the latter."

There is no doubt about the power of the municipality to enact an ordinance having the general scope and purpose of the one under consideration. Its general purpose comes clearly within the general governing authority of a community to preserve the health and comfort of its inhabitants. Conceding that the question of unreasonableness is to be considered in the state of the record, we are of opinion that, if properly framed, ordinance regulations restricting the hours within which calves or other animals might be brought and kept within the city limits for purposes of sale or shipment, that is, the conducting of this business, would unquestionably be valid. This general principle is laid down in Maxwell v. Corporation of Jonesboro, 11 Heisk. 257, Chief Justice Nicholson in his opinion saying:

"The mayor and aldermen of Jonesboro were the proper persons to determine what restrictions were proper for the preservation of peace and good order in that town during the nighttime. The presumption is, that they have discharged their trust with fidelity; nor can we assume to say that the ordinance in question was either unreasonable or oppressive. It left to complainant the entire day for the exercise of his privilege, and only restricted its exercise after a period when the corporate authorities deemed it necessary for good order and quiet that spirituous liquors should cease to be retailed."

What is said with reference to the business involved in that case applies to the conduct of any business which results in the disturbance of good order and quiet in the town during the nighttime. Nor is it material that this particular ordinance applies to calves only, and does not embrace other animals. For all that here appears, the town of Jonesboro may have other ordinances applying to other animals, but the ordinance is not subject to attack on the ground that it does not go further and have a more general application. However, the issue to be now determined is whether or not this ordinance is so indefinite in its terms that it is not susceptible of fair and proper enforcement. It is true that, in so far as possible, ordinances should be "certain in their application and operation, and their execution not left to the caprice of those whose duty it is to enforce them." Jones v. Nashville, 109 Tenn. 558, 72 S.W. 986. There is no hard and fast rule determining whether or not any given ordinance is void for indefiniteness. The rule of reason must be applied to every case as it arises. Wide latitude must be left to the city authorities in the framing of city ordinances intended to protect health or preserve peace and order in communities. It is a matter of impossibility always accurately to define the offense in such precise terms as to relieve the ordinance wholly from any charge of indefiniteness and deprive the enforcing officers of all discretionary latitude. Common illustrations of ordinances of this character might be given. In dealing with the subject of cruelty to animals, it is common to provide broadly that any person who shall inhumanly, unnecessarily or cruelly beat or injure, or otherwise abuse, any dumb animal, shall be guilty of a misdemeanor, or that it shall be unlawful for any person to overload any vehicle. Obviously the determination of what constitutes cruelty under such ordinances is left to the discretion and decision of the trial authorities. Again, ordinances are quite generally enacted and enforced making it unlawful for persons to loiter about and upon railroad tracks within a city. It is always a matter of discretion to be used by the authorities as to what constitutes loitering as distinguished from legitimate and proper presence. What are known as the "keep moving" ordinances, common to large municipalities, come within this...