“The doctrine of Ejusdem Generis based on the maxim expressio unius est exclusio alterius is: that, where general words are used, followed by a designation of particular things or subject to be included or excluded as the case may be, the inclusion or exclusion will be presumed to be restricted to the particular thing or subject”
How later courts described this case
- “The doctrine of Ejusdem Generis based on the maxim expressio unius est exclusio alterius is: that, where general words are used, followed by a designation of particular things or subject to be included or excluded as the case may be, the inclusion or exclusion will be presumed to be restricted to the particular thing or subject”
- order on petitions to rehear
- on petition to rehear
Written by the judges who cited it.
The opinion
On Petitions to Beheab.
Burnett, Justice.
The property owner has filed a very courteous, dignified and forceful petition to rehear in this cause. This petition is largely based upon the dissenting opinion of Mr. Justice G-ailor filed in this cause. Many authorities are cited which apply the rule or doctrine of ejusdem generis. The City has likewise filed a petition to rehear, questioning our taxation of costs in this Court to the City. This petition filed on behalf of the City can *510 be disposed of in a sentence. “The question of adjudging costs is a matter within the reasonable discretion of the Court.” Runions v. Runions, 186 Tenn. 25, 32 , 207 S. W. (2d) 1016, 1019 ,1 A. L. R. (2d) 242.
The “doctrine of Ejusdem Generis” is not a rule of law but is merely an aid to the judicial mind in the interpretation of a statute or other writing. “The doctrine of Ejusdem Generis based on the maxim expressio unius est exclusio alterius is: that, where general words are used, followed by a designation of particular things or subject to be included or excluded as the case may be, the inclusion or exclusion will be presumed to be restricted to the particular thing or subject. Ballentine’s Law Dictionary, 2nd Edition, Page 24. Literally translated, the phrase, expressio unius est exclusio alterius, means: the expression of one thing is the exclusion of another (of the same kind). Whilst the rule is more frequently applied to the construction of statutes and wills, it equally is applicable to other instruments of writing. E. H. Emery & Co. v. American Insurance Co. of Newark, N. J., 177 Iowa 4 , 158 N. W. 748 ." Prudential Insurance Co. of America v. Fuqua’s Adm’r, 314 Ky. 166 , 234 S. W. (2d) 666 , 670, 22 A. L. R. (2d) 803.
The object of the rule is stated in 59 C. J. 982, Sec. 581, thus:
“The rule is based on the obvious reason that if the Legislature had intended the general words to be used in their unrestricted sense they would have made no mention of the particular classes. The words ‘other or ,any other’ following an enumeration of particular classes are therefore to be read as ‘other such like’ and to include only others of like kind or character. ’ ’
*511 In our original opinion we quoted in full the provision of the ordinance applicable herein. Before the first nine sub-sections of the section of the ordinance applicable it is provided in substance that in a One-Family District no building “or land” shall be used except for one of the nine enumerated things following. This ordinance of course is a prohibitive ordinance in the first instance which is followed by the nine sub-sections of things that may be built or for which the land in this district may be used. It was our idea that by so providing, the things done by Brown in this instance not being specified therein, that then what he did was necessarily excluded under the applicable doctrine of ejusdem generis as based on the maxim above quoted. These things were not mentioned in the ordinance as those permitted to be used in such a district. We feel that the doctrine as here applied is applicable. Of course as heretofore said, it is not a rule of law but a mere aid to our interpretation of what is meant by the ordinance.
Use restrictions of the kind herein attempted to be enforced upon real property find their justification' in some aspect of the police power, exerted for the public welfare. When such use restrictions are applied the ordinance must either clearly and expressively prevent such use or such use must clearly appear upon a proper and judicial determination of the ordinance. The majority of this Court feels and concludes that the ordinance herein clearly expresses the provision that property in this neighborhood is to be used for a one-family dwelling with the nine enumerated exceptions one of which is the one-family dwelling and such things as customarily and ordinarily go with a one-family dwelling. In determining what a one-family dwelling may necessarily be used for we must use our common sense, judicial and personal *512 knowledge of what such, dwellings are customarily and ordinarily used for — wliat the ordinary man of the street would consider a one-family dwelling to be. When we so consider this ordinance it seems to us that the use of a lot of this size for the tearing down and .assembling of as many as nine automobiles at a time, that this, is clearly outside the use of a one-family dwelling. It is true that under the stipulation here this use is stipulated to have been made by Brown as a hobby but when hobbies become a violation of the clear intention of the ordinance then the statute prohibits the hobby. We of course can think of all kinds of hobbies, many of which would customarily and ordinarily be considered as a proper use for a one-family dwelling but when a hobby reaches the proportion of the destruction of the neighborhood by the use of assembling and tearing down of numerous automobiles, in this case nine, this goes far beyond any common sense idea of what a One-Family Dwelling might be used for.
We have obviously spent considerable time in discussing this very interesting question in conference. We have likewise made a considerable investigation in addition to the very interesting and able briefs of counsel. We, though, are constrained to our original holding that the acts of Brown herein were a violation of this ordinance and should therefore be prohibited. For the reasons expressed the petitions to rehear of both Brown and the City are denied.