                IN THE COURT OF APPEALS OF TENNESSEE                 FILED
                                                                     March 31, 2000
                                   AT KNOXVILLE
                                                                   Cecil Crowson, Jr.
                                                                  Appellate Court Clerk




STA TE O F TEN NES SEE, e x rel.        )   C/A NO. E1999-01603-COA-R3-CV
JERRY N. ESTES,                         )
                                        )   BRADLEY CHANCERY
      Plaintiff-A ppellant,             )
                                        )   HON. JERRI S. BRYANT,
vs.                                     )   CHANCELLOR
                                        )
JOHNNY DEW AYNE HICKS,                  )   VACATED
                                        )   AND
      Defendant-Appellee.               )   REMANDED




PAUL G. SUMMERS, Attorney General and Reporter, MICHAEL E. MOORE,
Solicitor General, and MICHAEL A. MEY ER, Assistant Attorney General, Nashville,
for Plaintiff -Appellan t.


MICHAEL M. RAULSTO N, Chattanooga, for Defendant-Appellee.




                                    O P I N IO N


                                                     Franks, J.
              In this action, the State sought to remove defendant from the office of
constable in Bradley Cou nty, on the grounds that he did n ot meet the statutory
qualifications to hold the office of constable. Tenn. Code Ann. §8-10-102, states:

               (a)(1) Except as provided in subdivision (a)(2), to qualify for
               election or ap pointmen t to the office of constab le, a person s hall:

                       (A)    Be at least twenty-one (21) years of age;
                       (B)    Be a qua lified voter o f the district;
                       (C)    Be able to read and write;
                       (D)    Not hav e been co nvicted in a ny federal or sta te
                              court of a felony; and
                       (E)(i) Not have been separated or discharged from the
                              armed forces of the United States with other than
                              an honorable discharge.

              At trial, the State focused on the pro vision that a c onstable m ust “be able
to read and write”, and after the State presented its proof, defendant moved to dismiss
pursuant to T.R.C.P. Rule 41, and the Trial Judge dismissed the action. She observed
in her Memorandum Opinion, “In this case, the State has the near impossible burden
of proving the defendant does not meet the requirements of the statute, which contains
no definition and on a topic upon which opinions differ greatly.”

               The legisla ture did not d efine wh at it means to be able to re ad and w rite
pertaining to that requirement set forth in Tenn. Code Ann.§8-10-102(a)(1)(c). The
defendant argues that the qualification simply means that to read and write at any level
whatsoever. The State contends, however, that it means that a constable should be
able to re ad and write at s uch a le vel so a s to be a ble to dis charge the dutie s of of fice.

                Since th e statute is subjec t to diffe rent inte rpretatio ns, it is am biguou s.
In re Conservatorship of Clayton, 914 S.W .2d 84 (Te nn. Ct. Ap p. 1995). If a statute
is ambig uous, it is proper to invo ke the p rinciple s of statu tory cons truction . Id. The
Court may consider the existing law, the legislative history behind the enactment of
the statu te, and th e evil so ught to be add ressed. Id. Moreover, the construction of a
statute is a question of law which appellate courts review de novo, with no
presum ption o f correc tness. Myint v. Allstate Ins. Co., 970 S.W.2d 92 0 (Tenn.1998).

                The o ffice o f cons table ori ginated as part o f the co mmo n law. Glasgow

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v. Fox, 383 S.W.2d 9 (Tenn. 1964). It was also provided in Article 6, Section 15 of
the Constitution of the State of Tennessee, which provision was repealed by
amendment in 1978. As defendant contends, statutes in derogation of common law
should be strictly construed, b ut “[t]he m ost basic prin ciple of statu tory construction is
to ascertain and give effect to the legislative intent without unduly restricting or
expanding a statute’s coverage beyond its intended scope.” Worley v. Weigel’s, Inc.,
919 S .W.2d 589 (T enn. 19 96).

               Tenn. Code Ann. §8-10-101 et seq. deals exclusively with the office of
constable, and contains the section in question which sets the qualifications for the
office. The section has been aptly described as a “crazy quilt of differing provisions”,
because it deals not only with how constables are to be elected and the qualifications
therefor, but also with permissive uniform and patrol car standards, surety bonds, and
other issues, and then exempts several counties from its application based upon
popula tion. See Tenn. Code Ann. §8-10-101 et seq.; Long v. Blount County Election
Com’n, 854 S.W.2d 89 4 (Tenn. Ct. Ap p. 1993).

               Previous to the 1997 amendment adding the current requirements, the
statute merely stated that no person under the age of eighteen was eligible to be
constable. During the debate over the amendment, Senator Haun, the sponsor, stated
that the intent was to set minimum requirements for holding office. There was some
discussion r egarding th e general lac k of conf idence in an d respect fo r constables in
certain counties, and the legislators talked ab out the need to mak e the office more
reputable in any way possible.

               Questions involving statutory construction should be resolved “in light
of reason, having in mind the object of the statute, and the mischief it aims at.” Loftin
v. Langsdon, 813 S.W.2d 47 5, 479 (Tenn. C t. App. 1991). Any word s in the statute
which are indefinite or unclear should be interpreted in such a way as to “express the
legislature’s intention and purpose.” Id.

               “The cardinal rule of statutory construction is to effectuate legislative
intent, with all rules of construction being aides to that end.” Locust v. S tate, 912
S.W.2d 716, 718 (Tenn. Ct. App. 1995). “Furthermore, we are to assume that the
legislature used each word in the statute purposely, and that the use of these words
conveys some intent and has a meaning and purpose.” Id. at 718. “Effect must be
given to every word, phrase, clause and sentence of the act in order to achieve the
legislative intent and the statute should be construed so that no section will destroy

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another.” Dingm an v. Ha rvell, 814 S.W.2d 36 2 (Tenn. Ct. Ap p. 1991).

                Constables serve civil process, which includes properly filling out the
return o f servic e whe ther it be a summ ons or c ivil war rant. See Tenn. Code Ann. §8-
10-111. Service of process can include orders of protection in domestic situations,
which require s that the order b e read to the def endan t in orde r to be p roperly se rved.
See Tenn. C ode An n. §36-3-6 04 and § 36-3-605 . Moreo ver, the law s in comp lexity
have grown over the years. Accordingly, we conclude that the legislature intended a
qualified individual to hold the office of constable must be one who could read and
write well enough to perform the duties of that office, which would mean that the
individual would have to be able to read and write well enough to properly read the
docum ents he is requir ed to se rve, and write w ell enou gh to fill out retu rns of s ervice.

               The Trial Court treated defendant’s motion as a motion to dismiss, since
this wa s a non -jury case . See City of Columbia v. C.F.W. Construction Co., 557
S.W.2d 734 (Tenn. 1977). Where a mo tion to dismiss is made, the trial court must
“impartially weigh and evalua te the evidence in the sam e manner as thou gh he were
making findings of fact at the conclusion of all of the evidence for both parties,
determine the facts of the case, apply the law to those facts, and, if the plaintiff’s case
has not been made out by a preponderance of the evidence, a judgment may be
render ed aga inst the p laintiff o n the m erits”. Id.

               The Trial Court found that the State had not met its burden in showing
that Hicks could not read and write, however, the court interpreted the requirement as
being able to read and write at any level. The evidence shows Hicks demonstrated an
ability to read and write at some level, but did not demonstrate that he possessed the
ability to read and write at a sufficient level to properly read process or warrants that
in the discharge of his duties he would be required to serve, or to fill out the return of
service on those documents. The evidence generally established that Hicks could read
at the third gra de level ran ge, but had an accura cy of reading skills of 54% at the sixth
grade level. There was also evidence that he admitted to an investigator in the District
Attorney G eneral’s O ffice that he could not re ad, i.e., docum ents he w as required to
serve as constable, or write at the level to properly discharge his duties in making
returns, etc.

              Accordingly, we vacate the Trial Court’s Order of Dismissal, and
remand to allow the p arties to presen t all of their evid ence and the Trial Co urt will
then mak e a determ ination of th e issues bef ore the Co urt.

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               The cause is remanded to the Trial Court for further proceedings
consistent w ith this Opin ion, with the cost of the a ppeal asses sed to the de fendant.




                                             __________________________
                                             Herschel P. Franks, J.


CONCUR:




___________________________
Charles D. Susano, Jr., J.




___________________________
D. Michael Swiney, J.




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