author: RENDLEN, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Jesse McDONALD, Defendant-Appellant.
    No. 36399.
    Missouri Court of Appeals, St. Louis District, Division 1.
    Aug. 26, 1975.
    Charles D. Kitchin, Public Defender, . Thomas J. Prebil, Asst. Public Defender, St. Louis, for defendant-appellant.
    John C. Danforth, Atty. Gen., Philip M. Koppe, Asst. Atty. Gen., Jefferson City, Brendan Ryan, Circuit Atty., John Fred White, Asst. Circuit Atty., St. Louis, for plaintiff-respondent.

      . The cases cited above are: Commonwealth v. Bumpus, 354 Mass. 494, 238 N.E.2d 343 (1968) cert. den. 393 U.S. 1034, 89 S.Ct. 651, 21 L.Ed.2d 579 (1969); Russell v. United States, 133 U.S.App.D.C. 77, 408 F.2d 1280 (1969); United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967).

   RENDLEN, Judge.

Defendant brings this appeal from a judgment of conviction by the Circuit Court of the City of St. Louis on the jury’s verdict finding him guilty of robbery in the first degree. § 560.120(560.135), RSMo 1969, V.A.M.S. Pursuant the Second Offender’s Act defendant was sentenced by the court to twenty years imprisonment, § 556.280. We affirm.

On appeal defendant alleges: (1) the identification testimony of robbery victim Barbara Wade rested on an unnecessarily suggestive pre-trial confrontation, conducive to irreparably mistaken in-court identification; (2) the trial court improperly asked Barbara Wade leading questions involving the ultimate issues during the hearing on the motion to suppress the identification testimony; and (3) the court erroneously allowed Barbara Wade’s in-court identification of defendant. Since the sufficiency of the evidence is not challenged, we recite only those facts pertinent to the issues raised by this appeal.

On December 14, 1973, Barbara Wade was employed as the head cashier at Veteran’s Thrift Village, 4200 Natural Bridge in the City of St. Louis. Shortly before seven p. m. she noticed a young man who came into the brightly lit store and while “browsing around” kept watching her. When he left a few minutes later, Ms. Wade summoned employee Rachel Rivers to tend the cash register. Ms. Wade went to the back of the store and informed the manager that she had seen the young man watching her and was afraid of being robbed. Returning to her register, she saw the young man reenter the store a few minutes later and go to Rachel Rivers’ checkout lane. When Ms. Rivers left her register to get an item for another customer, he moved over to the lane which Ms. Wade was serving. The defendant had a coat over his hand and apparently something in his hand but Ms. Wade could not see if it was a gun. The defendant acting quite nervously said, “Okay. This is a stick-up,” “Give me your money.” He kept watching Ms. Wade, the door, and everyone around him and kept telling Ms. Wade to hurry. As she put the money in a sack, the defendant grabbed it from her hand and ran. Understandably, the distraught Ms. Wade began to scream and Rachel Rivers, alerted by the screams, turned in time to see defendant leave the store. The police were summoned and Ms. Wade described the man who had robbed her as short with a lot of hair, a natural; hair on his face, wearing a maroon hat, maroon pants, a brown shirt and a maroon jacket. This description, promptly placed on the police radio, led to defendant’s arrest by Patrolman Michael Knoke, about two blocks from Veteran’s Thrift Village. The defendant, wearing a maroon hat, pants and jacket, and a brown shirt, with an afro and a beard, was immediately returned to the scene of the robbery for identification. Patrolman Knoke, keeping the defendant in the police car, went inside and had Ms. Wade repeat the description. She added that the hair on his face had been a “scraggly” beard. He told her they had a “subject” in the car and wished her to “take a look at him.” They walked to the parking lot where defendant was seated in a police car and Ms. Wade immediately identified him as the robber. The officers had the defendant get out of the car and put on his hat, whereupon Ms. Wade reaffirmed that he was the man who had robbed her. This identification took place between thirty and forty-five minutes following the robbery. During the course of the robbery, the defendant stood no more than three or four feet in front of Ms. Wade who saw him clearly two or three minutes each time he was in the store. Ms. Rivers was not called upon to identify the defendant following the robbery at the scene; however, she positively identified him at the trial.

Considering defendant’s Points I and III, the threshold question is whether the confrontation between Ms. Wade and the defendant in the parking lot of Veteran’s Thrift Village was unnecessarily suggestive and conducive to irreparably mistaken identification. If so, unless it had an independent basis, the identification testimony of Ms. Wade should have been suppressed. United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967); Foster v. California, 394 U.S. 440, 89 S.Ct. 1127, 22 L.Ed.2d 402 (1969); Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972).

In State v. Hamblin, 448 S.W.2d 603 (Mo. 1970), a robbery was committed by three undisguised persons at about 8:30 in the morning, in full view of the witness for several minutes under “circumstances which would have caused her to form an impression of his facial features as well as his other characteristics.” (Id. 608). After the robbery the witness was taken to the hospital for medical treatment, the defendant was quickly arrested, brought to the hospital and identified as one of the robbers within thirty minutes of the event. “This was not only sound police procedure but it was dictated by common sense. The fact that the patrolman had arrested defendant and his two companions did not necessarily mean they had apprehended the robbers. Apparently they were arrested as the result of a description received by radio. If by coincidence defendant and his companions matched the description but were not the robbers, the real robbers would be effecting their escape, and with the present means of rapid transportation, time was of extreme importance. In addition, prompt verification by the victim of the crime that the person apprehended was the person sought would prevent ‘the detention of an innocent suspect,’ and the delay resulting from the technical requirements of the Wade case would ‘diminish the reliability of any identification obtained.’ ” (Id. 608). Citing Russell v. United States, 133 U.S.App.D.C. 77, 81, 408 F.2d 1280, 1284 (1969). The court in Hamblin extensively reviewed the controlling cases and concluded that “it appears that prompt confrontations in circumstances like those of this case will if anything promote fairness by assuring reliability . this probability, together with the desirability of expeditious release of innocent suspects, prevents substantial countervailing policy considerations which we are reluctant to assume the Supreme Court would reject . . . Based on what we consider to be a common-sense approach, and the impelling interest of the public that the police have an effective means to determine whether they have apprehended the wrong person so that if they have they can devote their efforts to apprehending the real criminal before he can make good his escape, and relying on the authority of the Bumpus and Russell cases, we conclude that the ‘Wade and Gilbert Rules’ did not preclude the admission in evidence of the in-court identification by the witness of defendant as the person who robbed and beat her.” (Id. 610[9]).

In State v. Townes, 461 S.W.2d 761, 764[1] (Mo.1970) cert. den. 407 U.S. 909, 92 S.Ct. 2445, 32 L.Ed.2d 683 (1972), the court held that under the rule of Hamblin a prompt confrontation in police holdover was not so unduly suggestive as to require suppression of the identification testimony.

Our Supreme Court in State v. Smith, 465 S.W.2d 482, 484[1] (Mo.1971), holding admissible an identification made within a few minutes of a robbery by an on-the-scene confrontation stated: “There is no prohibition against a viewing of a suspect alone in what is called a ‘one-man’ showup when this occurs near the time of the alleged criminal act; such a course does not tend to bring about misidentification but rather tends under some circumstances to insure accuracy . . . there was no ‘substantial likelihood of irreparable misidentification.’ To the contrary, the police action in returning the suspect to the vicinity of the crime for immediate identification in circumstances such as these fosters the desirable objectives of fresh, accurate identification which in some instances may lead to the immediate release of an innocent suspect and at the same time enable the police to resume the search for the fleeing culprit while the trail is fresh.”

Similarly in State v. Dodson, 491 S.W.2d 334, 338[5] (Mo. banc 1973), it was held that the effect of Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), is not to act as a barrier to unreliable identification testimony per se, but rather is to prevent evidence of identifications obtained through unreliable procedures. If the procedures used are permissible, the reliability of the identification is a matter for the jury. The court held that “absent specific evidence that the confrontation was conducted so as to be unduly suggestive or unfair, prompt on-the-scene confrontations do not entail due process violations and are not prohibited by the Wade or Gilbert cases,” supra at 338[5]. State v. Townes, 461 S.W.2d 761, 763[1] (Mo.1971); State v. Maxwell, 502 S.W.2d 882, 389[5, 6] (Mo.App.1973). Consistent with these cases, this court in State v. Hudson, 508 S.W.2d 707, 710[7] (Mo.App.1974), aptly summarized the factors to be considered as follows:

“In evaluating the suggestiveness of a particular confrontation and the likelihood of misidentifieation, we look to factors such as the opportunity of the witness to view the accused at the time of the alleged crime, the accuracy of the witness’s prior description of the accused, the certainty of the witness at the confrontation, the length of time between the crime and the confrontation, and the need for police to determine at the earliest opportunity whether the person suspected is in fact the person sought.” Neil v. Biggers, 409 U.S. 188, 199, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972); Stovall v. Denno, supra 388 U.S., l.c. 302, 87 S.Ct. 1967; State v. Townes, 461 S.W.2d 761, 763[1] (Mo.1970), cert. denied 407 U.S. 909, 92 S.Ct. 2445, 32 L.Ed.2d 683 (1972).

In the case at bar nothing suggests confrontation was conducted in an unduly suggestive manner. Defendant was returned to the scene as soon as arrested and promptly identified by the victim. While this confrontation took place within thirty to forty-five minutes and the cited cases involved confrontation within thirty minutes, we do not believe that the additional time lapse renders the procedure impermis-sibly suggestive or unfair.

Having found the confrontation proper, we need inquire no further. However, even if that procedure had been improperly conducted, the witness’ opportunity to observe the defendant for several minutes before and during the robbery in the brightly lit interior of the store, provided more than sufficient independent basis to support the admission of her in-court identification. State v. Davis, 507 S.W.2d 32, 34[1] (Mo.App.1974). State v. Ross, 502 S.W.2d 241, 245[1] (Mo.1973).

Since there was no error in admitting the identification testimony at trial, appellant’s Points I and III are denied.

Finally, defendant complains of questions propounded by the court to witness Wade during the hearing on the motion to suppress her in-court identification as leading and calling for conclusions. These contentions are without merit. As previously discussed, the evidence at the hearing not only showed a sufficient independent basis for the witness’ identification but also a reliable and not “unduly suggestive” confrontation at the scene of the crime. We have found these facts provided an adequate basis for admission of the in-court identification. The complained of questions which if leading, and this does not so appear, provided nothing more than cumulative evidence; they had no effect on the admissibility of the evidence sought to be suppressed and could not constitute error.

Judgment affirmed.

WEIER, P. J., and DOWD, J., concur.


source: Caselaw Access Project

author: WEIER, Presiding Judge.

license: Public Domain

text:
    Geneva BROOKS, Plaintiff-Respondent, v. GENERAL MOTORS ASSEMBLY DIVISION, Defendant-Appellant.
    No. 36601.
    Missouri Court of Appeals, St. Louis District, Division One.
    Aug. 26, 1975.

      John L. Harlan, Jr., Clayton, for defendant-appellant.
    Jack Randall, St. Louis, for plaintiff-respondent.
   WEIER, Presiding Judge.

The defendant has appealed from the judgment of the circuit court affirming the award of the Industrial Commission in which it was determined that Geneva Brooks, the plaintiff, had suffered an injury to her back in an accident arising out of and in the course of her employment. This resulted in permanent total disability. For this, she was to receive the sum of $58.00 per week for 300 weeks, and thereafter, for life, as a pension, $40.00 per week; or a total sum of $17,400.00 plus pension. In addition, medical aid not furnished by the employer was awarded to her in the sum of $3,778.13.

Defendant has appealed, contending that the evidence presented was overwhelmingly in favor of the defendant and that it did not sustain the finding of accident, the finding of injury arising out of the accident, and the finding of permanent total disability. Plaintiff, on the other hand, contends that the award of the Commission and the judgment of the circuit court was supported by evidence totally favorable to the employee and susceptible of but one construction. She further contends that since there was no justiciable controversy on appeal, the appeal is spurious and vexatious and an appropriate penalty should be imposed.

Geneva Brooks, the claimant before the Commission and plaintiff-respondent on appeal, had been an employee of General Motors seventeen years when she was involved in an accident on August 25, 1971. She testified that she was working at her place of employment on sub-assembly trim when an industrial truck or gondola, used to bring in materials, tangled with the stock. In trying to extricate the stock, the gondola moved and she was pinned back against a steel bin. At this time she felt sharp pain in the middle to lower part of her back. She informed her foreman, Paul Pritchett, of her injuries, and he assisted her in straightening out the materials. Because it was a matter of minutes before the end of the working period on her shift, she did not report to the nursing station but remained at her job and went home at the conclusion of her work period. She never returned to work.

A fellow employee, Josephine Clutter, testified that she heard Mrs. Brooks scream. She walked over to her and found that she had been thrown back against what she described as a “skid” which was about three feet high, and that she was between this and another of the same height in a leaning back position. She heard Paul Pritchett, the foreman, tell her he hoped she was not hurt when he walked up after this occurred. Mrs. Clutter gave this information to the employer at a later time.

Plaintiff saw her doctor, Leon Fox, who had previously performed surgery on her in 1970. At that time, a myelogram had revealed abnormal intervertebral spaces in the lumbosacral area. After a laminectomy she quickly recovered and returned to work without complaint.

Following the accident of August 25, 1971, she again placed herself in the care of Dr. Fox who, after conservative treatment, again recommended a laminectomy. When she was examined at the time of the proposed surgery, the doctor found that he could not operate because of her blood pressure. Then in the summer of 1973 she had a heart attack and has been under treatment for her heart condition since that time. Dr. Edward H. Bowdern, who examined her February 13,1973, before the heart attack, stated that in his opinion she was totally and permanently disabled due to a recurrent ruptured disc. This was shown in a myelogram carried out on October 4,1971 by Dr. Fox which revealed defects in the lumbar vertebrae. It was Bowdern’s opinion that Mrs. Brooks was totally and permanently disabled. As to whether she might have corrective surgery, he stated: “Anyone who has had any cardiac problems is not a candidate for major surgery.”

It was evident that defendant had been informed of her condition. The supervisor of the benefits plan administration at the plant where she worked, whose duties involve supervision of compensation cases, stated that his records indicated that she was on total disability pension benefits and retirement.

Defendant called as a witness Paul Pritchett, the foreman who was allegedly present at the time of the injury. He had no recollection of the incident nor that plaintiff had informed him as to what happened. He stated that he could not remember anything about the matter. A medical report dated January 3, 1973 of an examination by a physician employed by the defendant introduced in the evidence gave his opinion that following an examination confined to her back and the lower extremities, he was under the impression that she was disabled from any type of work that she might do on the assembly line. If she had a fusion procedure that was successful, he thought this might leave her with less discomfort, but he still thought that she would most likely not be a suitable candidate for assembly line work. He gave her a disability rating of 30% of the woman as a whole.

Standards for judicial review of an award made by the Industrial Commission are set out in Mo.Const., Art. V, § 22, and § 287.490, RSMo 1969. The statute directs that the court on appeal shall review only questions of law and may modify, reverse, remand for rehearing, or set aside the award upon any of these grounds: “(1) That the commission acted without or in excess of its powers; (2) That the award was procured by fraud; (3) That the facts found by the commission do not support the award; (4) That there was not sufficient competent evidence in the record to warrant the making of the award.” But the Constitution in Art. V, § 22 makes a “broader review the minimum standard which may be established for review in any case decided on a hearing before an administrative officer or body.” Wood v. Wagner Electric Corporation, 355 Mo. 670, 197 S.W.2d 647, 649 (banc 1946). This, minimum standard requires that the award be “supported by competent and substantial evidence upon the whole record.” Mo.Const., Art. V, § 22, supra. This is self-enforcing and requires no legislation to make it effective. As interpreted, it means that the reviewing court may not substitute its own judgment on the evidence for that of the administrative tribunal, but it does authorize the court to decide whether the tribunal could have reasonably made its findings, and reached its results, upon consideration of all the evidence before it. Decisions clearly contrary to the overwhelming weight of the evidence may be set aside. Wood v. Wagner Electric Corporation, supra at 649[l-3]. The term “substantial evidence” both implies and comprehends competent evidence and is evidence which if believed would have a probative force upon the issues. State ex rel. Rice v. Public Service Commission, 359 Mo. 109, 220 S.W.2d 61, 64[3] (banc 1949). An appellate court, upon review of a case, after a determination by an administrative board, “as a matter of law passes upon the matter of substance and not of credibility. In other words, an appellate court may say that particular evidence is substantial if the triers of the facts believed it to be true.” State ex rel. Rice v. Public Service Commission, supra at 65[7]. In examining the record and applying these standards, a reviewing court must view the record in a light most favorable to the findings of the tribunal considering the favorable inferences which the tribunal had a right to draw from the evidence before it, and then determine whether the tribunal’s findings, even if supported by competent and substantial evidence, are contrary to the overwhelming weight of the evidence. Thacker v. Massman Const. Co., 247 S.W.2d 623, 627[2] (Mo.1952). But the weight of the evidence is not the quantity or the amount thereof. Rather it is the weight and probative value; its effect in inducing belief. Land Clearance for Redevelopment Authority of the City of Joplin v. Joplin Union Depot Company, 429 S.W.2d 806, 813 (Mo.App.1968).

It is true that, as defendant contends, plaintiff had the burden of proof on all the material elements of her claim. But all of the substantial evidence as outlined above proved that plaintiff had suffered an injury as the direct result of an accident which had occurred at the place of her employment, arising out of and in the course of that employment. Competent and substantial medical evidence supported the determination of the commission that as a result of this accident she was caused to become permanently and totally disabled. Clearly the evidence in this case calls for an affirmance of the award of the Industrial Commission. There is little evidence, if any, that is contrary to that offered by the plaintiff.

The question then remains as to whether the appeal in this case was of such a frivolous nature as to justify the imposition of an award for damages under Rule 84.19. This court has previously determined that a frivolous appeal is one in which no justiciable question has been presented and the appeal is readily recognizable as devoid of merit in that there is little prospect that it can ever succeed. State ex rel. State Highway Commission v. Sheets, 483 S.W.2d 783, 785[4] (Mo.App. 1972). Our courts have been reluctant to apply the provisions of this rule and its predecessor, Rule 83.13(d), which authorized an imposition of damages not exceeding ten percent of the amount of the judgment. Universal C.I.T. Credit Corporation v. State Farm Mutual Automobile Insurance Company, 493 S.W.2d 385, 390 (Mo.App.1973). But where it is apparent from the record that the appeal is so devoid of merit as to make the conclusion inevitable that it was not taken in good faith, then such an appeal has been considered vexatious and damages have been awarded. The test seems to be that the questions raised on appeal must be at least fairly debatable to clear it of the charge of being frivolous or vexatious. DeMayo v. Lyons, 243 S.W.2d 967, 970[4, 5] (Mo.1951).

Here, the only contention on appeal was: “The evidence presented is overwhelming that claimant did not suffer any accident on August 25,1971, and that if she did have an accident on August 25, 1971 that she did not sustain any injury on that occasion, and that if she did sustain any injury on August 25, 1971 such injury does not justify any award for disability either partial or total, temporary or permanent, and certainly does not justify any award for permanent total disability and a pension for life under Workmen’s Compensation Act and such award should be set aside.” From our review of the evidence, the overwhelming weight of that evidence favored the plaintiff. In fact, the only substantial evidence sustained plaintiff’s claim. The Industrial Commission made its award on April 1, 1974 which was affirmed by the circuit court on October 11,1974. It is now nearing September of 1975. Such a delay in payment of a valid award can only act to the advantage of the defendant company because interest thereon in this day of high interest rates is charged by law at the relatively low rate of six percent. We believe that it would be just to award damages in the amount of six percent in addition to the interest authorized by law.

The judgment of the circuit court affirming the award of the Industrial Commission is affirmed and plaintiff is awarded damages against the defendant in the amount of six percent of the judgment herein; that is, the amount of $17,400.00 awarded for permanent total disability and the necessary medical aid not furnished by the employer or insurer in the sum of $3,778.13.

DOWD and RENDLEN, JJ., concur.


author: FONES, Chief Justice.

text:
    Charlotte SNOW et al., Plaintiffs-Appellees, v. CITY OF MEMPHIS et al., Defendants-Appellants. KENMONT APARTMENTS, Plaintiff-Appellant, v. The METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY et al., Defendants-Appellees.
    Supreme Court of Tennessee.
    April 9, 1975.
    Rehearing Denied Sept. 2, 1975.

      Martin, Tate, Morrow & Marston, Kriger & Harkavy, Evans, Petree, Cobb & Edwards, Memphis, of counsel, for Charlotte Snow and others.
    Thomas V. White, Nashville, for Ken-mont Apartments.
    John D. Martin, Jr., David C. Porteous, Memphis, for Kenmont Apartments and Charlotte Snow, and others.
    Everett H. Falk, Asst. Atty. Gen., Nashville, Frierson M. Graves, Jr., City Atty., J. Minor Tait, Jr., Asst. County Atty., Memphis, for City of Memphis, and others.
    Dept, of Law of the Metropolitan Government of Nashville and Davidson County, William F. Howard, Donald L. Cor-lew, Nashville, for the Metropolitan Government of Nashville and Davidson County, and others.
   OPINION

FONES, Chief Justice.

These two cases were consolidated for oral argument, and will be disposed of in one opinion.

All plaintiffs, except the tenant-plaintiffs, are owners of real property containing two or more rental units used for dwelling purposes. Such property is defined as commercial property in Article II, Section 28(c) of the Constitution of Tennessee, as a result of the well known and much litigated Question 3 amendment.

Plaintiffs Snow, et al., filed a declaratory judgment action in the Chancery Court of Shelby County, asserting that the Constitutional Convention of 1971 exceeded the limitation of the call and created a fifth classification of real property when it defined residential property containing two or more rental units as commercial property. An adjudication declaring said amendment unconstitutional, as violative of Article XI, Section 3, Tennessee Constitution and the 14th Amendment, U. S. Constitution, was sought. From a decree sustaining plaintiff’s contention, the City of Memphis, the County of Shelby, and the Attorney General of Tennessee, perfected a direct appeal to this Court.

Kenmont Apartments filed a similar action in the Chancery Court of Davidson County, and prosecutes in this Court an appeal from a decree holding said definition, of residential property, constitutional.

All plaintiffs further contend that the treatment of residential property containing two or more rental units as commercial property violates the equal protection clause of the 14th Amendment to the Federal Constitution.

Article II, Section 28 of the Constitution of Tennessee was amended, in compliance with the second method prescribed in Article XI, Section 3 of said Constitution. The process was initiated by the Legislature’s enacting Chapter 421, as amended by Chapter 597, Public Acts 1968. Said legislation submitted five questions to the electorate; only one of which, Question 3, received approval of the majority of the voters, in November, 1968.

The Question 3 call is set out in its entirety in Appendix A. The call provides, in affirmative terms, that Article II, Section 28 of the Constitution shall require the classification of property into three classes, real property, intangible personal property, and tangible personal property, and that the Convention shall classify real property only into four sub-classifications, (a) public utility, (b) industrial and commercial, (c) residential, and (d) farm.

Delegates were elected to a Constitutional Convention in August, 1970, and in August, 1971 the Convention convened for the purpose of altering and reforming Article II, Section 28 of the Constitution of Tennessee, pursuant to the Question 3 call.

On September 14, 1971, the Convention adopted Resolution 74, which was approved by the voters in August, 1972.

Resolution 74, now Article II, Section 28 of the Constitution of Tennessee (see Appendix B), in setting out the classification of residential property, added the following: “. . . provided that residential property containing two (2) or more rental units is hereby defined as industrial and commercial property.”

This action of the Convention is said by the property owners to create a fifth sub-classification of real property beyond the limits of the call, in violation of Article XI, Section 3 of our Constitution.

In the Shelby County case, the learned Chancellor agreed with plaintiffs. He reasoned that, although the amendment as framed by the Convention was approved by the people, the people first approved the call limiting the sub-classification of real property to four specific categories, and the post-Convention approval of the people could not legitimate action, illegal in its inception; that the Convention created another sub-classification, to wit, income-producing rental units; that the number of occupants provided no basis of classification and that said action was “purely revenue producing”. In finding the provision discriminatory, the Chancellor observed a taxpayer owning two or more rental units is liable for a greater tax proportionally than the owner of only one unit; that the units could be identical in value, location, and otherwise the same insofar as T.C.A. § 67-606 (basis of evaluation) is concerned, but one taxpayer pays a tax based on 40% of actual value and the other 25% thereof. Reliance was evidently placed upon Stewart Dry Goods Co. v. Lewis, 294 U.S. 550, 55 S.Ct. 525, 79 L.Ed. 1054 (1935), and Gowens v. City of Bakersfield, 179 Cal.App.2d 282, 3 Cal.Rptr. 746 (1960).

In the Kenmont Apartments case, the learned Chancellor entered a decree upholding the constitutionality of the amendment to Article II, Section 28 of the Constitution, but did not file a memorandum opinion, as the case was heard just prior to the expiration of his term.

In both cases the plaintiffs presented evidence bearing upon the economic and sociological effects of taxing residential rental property at 40% of its value, as compared to taxing residential property at 25%. In both cases, the defendant taxing authorities presented countervailing evidence. The Memphis Chancellor held that all of the evidence was inadmissible, including the Journal of the Limited Constitutional Convention of 1971. We disagree. Some of the evidence introduced in both cases was admissible on the 14th Amendment issue. The Journal of a Constitutional Convention is admissible and the Court may, sua sponte, make use of a journal of proceedings of constitutional conventions when an issue presented makes such use relevant. See State v. Cloksey, 37 Tenn. 482 (1858), and Shelby County v. Hale, 200 Tenn. 503, 292 S.W.2d 745 (1956). However, the posture of this case, and the view we take, makes it unnecessary to separate the admissible evidence from the inadmissible evidence.

Excellent briefs on behalf of every party to this litigation have been filed, including an amicus. curiae brief on behalf of the Tennessee Municipal League and the Tennessee County Services Association, and every persuasive argument, pro and con, has been urged upon us, with superior advocacy.

Numerous definitions of the term “residential property” are cited. The word “residential” and thus the phrase “residential property” is elastic and flexible. The phrase may have different connotations in different statutes and situations. When used in connection with zoning, it has meaning in the light and purpose of zoning laws. When used in connection with taxation, it has, or may have, a different meaning, because the object or purpose of said law is entirely different. In the real estate business, the definition of residential property varies between property managers, builders, and lenders. The issue presented in this case cannot be resolved by the selection of one of the definitions of residential property tendered us in the briefs. ■

Likewise, the decision in this case cannot be predicated upon whether or not the Constitutional Convention created a fifth sub-classification, as vigorously contended by the plaintiffs, or whether or not the Convention merely defined residential property as asserted by defendants, with equal vigor.

The first issue presented by the plaintiffs’ attack on the constitutionality of taxing two or more rental units as commercial property depends upon the proper interpretation and application of the phrase in Article XI, Section 3 of our Constitution, proscribing that no amendment shall become effective, “unless within the limitations of the call of the convention.” That phrase has been before this Court for interpretation in connection with the Question 3 call in three prior cases.

The Question 3 call is substantially different from any prior call of a limited constitutional convention. Its .departure from the tenor of prior calls provided the issue in Illustration Design Group v. McCanless, 224 Tenn. 284, 454 S.W.2d 115 (1970). That suit was brought after approval by the people of the Question 3 call in November, 1968, and before the election of the delegates to the Convention in August, 1970. Plaintiffs asserted that Chapter 421 of Public Acts of 1968, as amended was unconstitutional because the Legislature had exceeded the limits of its power in drafting the call, by undertaking to dictate the specific terms of the amendment, thus usurping the function of the Constitutional Convention. In rejecting that contention, the Court said, inter alia,

“It will be observed that, by the provision of the Constitution above quoted (Art. 11, sec. 3, par. 2), the people have not only delegated authority to the Legislature to propose the call for a convention, and thus limit and define the scope and action of such convention, but they have expressly limited the consideration and action of the convention to the proposals already approved by a vote of the people and within the limits of the call, by this language:
‘ * * * and the convention shall assemble for the consideration of such proposals as shall have received a favorable vote in said election, . . . ’” 454 S.W.2d 120.

The Court appears to place a great deal of emphasis on the effect of the language, “unless within the limitations of the call.” Its holding has been urged upon this Court in three subsequent lawsuits, including this one, as demanding a literal interpretation of that phrase with the result that it is said a constitutional convention must confine its deliberations and actions strictly within the detailed terms of the call. Said cases are Southern Railway Company v. Dunn, 483. S.W.2d 101 (Tenn.1972), and Southern Railway Company v. Fowler, 497 S.W.2d 891 (Tenn.1973).

In Fowler, the plaintiffs contended that the Constitutional Convention exceeded the limitations of the call by sub-classifying tangible personal property, and in authorizing the Legislature to sub-classify intangible personal property. The case was tried in the Chancery Court of Davidson County and then Chancellor Drowota, now a member of the Court of Appeals, filed a Memorandum opinion containing these incisive observations with respect to Illustration Design Group v. McCanless, supra:

“This present litigation has revealed at least two adverse effects of the Illustration Design Group holding. The first is a very practical concern. That is, Illustration Design Group invites litigation like these present suits after every effort to amend the Constitution by the Convention method. Having granted the Legislature power to, in effect, draft proposed amendments, the Legislature can be expected to use that power to the fullest possible extent. The Constitutional Convention in the exercise of its discretion may frequently change or amend the Legislature’s draft amendment (the Call). Assuming ratification, it can be safely predicted that opponents of the amendment will consistently bring suits like the present seeking to invalidate the ratified proposal on grounds that the Constitutional Convention exceeded the scope of its authority as defined by the Call:
The second adverse effect, apparent from this present experience, is of constitutional significance. Stated simply, permitting the Legislature to draft every detail of a proposed constitutional amendment, and then requiring the Convention to adhere strictly to (/. e. rubber-stamp) the Legislature’s product, effectively emasculates the Convention as an institution of constitutional dignity. It removes from the Convention all discretion in framing changes in the fundamental law of this State.
As conceived by Article XI, Section 3, Constitution of Tennessee, the Constitutional Convention in its sphere of authority is an institution of at least equal dignity with the Legislature. The holding of Illustration Design Group makes the Constitutional Convention a puppet of the Legislature. It deprives the Convention of all significance as a constitutional institution.”

It is apparent to this Court that such restrictions upon the function of a limited Constitutional Convention are contrary to the intent of the 1953 convention, and to legal and historical precedent in framing constitutional law in Tennessee and our sister states.

The issue thus presented, is of great significance in the fundamental law of this State and must be clarified.

A brief review of the background and events leading directly to the amendment of the second paragraph of Article XI, Section 3 of our Constitution, dealing with the Convention method of amendment, is appropriate.

The pre-amended provision as it appeared in our 1870 Constitution, with respect to amending by the Convention method, provided as follows:

“The Legislature shall have the right, at any time by law, to submit to the people the question of calling a Convention to alter, reform or abolish this Constitution, and when upon such submission, a majority of all the votes cast shall be in favor of said proposition, then delegates shall be chosen, and the Convention shall assemble in such mode and manner as shall be prescribed.”

By Senate Joint Resolution No. 20, Public Acts of 1945, the Legislature authorized and directed the Governor to appoint a Constitution Revision Commission. The purpose of the Commission was to make a study of the needs for revision of the Constitution of Tennessee and present its recommendations to the 1947 Session of the General Assembly. Seven distinguished lawyers were appointed by the Governor and, after more than a year of study, the Commission’s report was submitted to the 75th General Assembly, on November 8, 1946.

Said Commission recommended that nine sections of the Constitution be changed and devoted much of its report to the procedure best calculated to bring about the suggested changes. Eleven efforts to amend the 1870 Constitution by the legislative method had failed because of the obstacle of obtaining voter ratification by a majority of all those voting for representatives. We judicially note, that in said efforts to amend by that process, only a small percentage of the voters who voted for representatives cast their ballots either for or against constitutional amendments, leaving the required majority of those voting for representatives, unattainable. After a careful study of the authorities, said Commission reached the conclusion that a limited constitutional convention was authorized by the above quoted Convention method contained in the 1870 Constitution, but an opinion from the Attorney General was requested. (Report of Constitution Revision Commission, pp. 2-8).

Attorney General Beeler rendered the requested opinion on May 16, 1946, finding a limited Constitutional Convention invalid and unconstitutional. Of significance to our inquiry is the following excerpt from his opinion:

“The last sentence of Art. 11, Sec. 3, is the one using the wording ‘to alter, reform or abolish.’ This sentence and these words do not confer upon the Legislature the power or authority to limit the Constitutional Convention to a consideration of any particular amendments; but a Constitutional Convention once called and assembled is sovereign in character and must be left free to either ‘alter, reform or abolish’ the existing Constitution. To hold otherwise would be to reduce the Constitutional Convention to nothing more nor less than a rubber stamp. Its members would be shackled and manacled ... in common, every day language ‘hamstrung’ and ‘hogtied.’ The framers of this constitutional provision intended to provide the State with the benefit of the collective coordinate judgment of the individual members making up the Constitutional Convention and it was not intended that the Legislature by a limiting Act could short-circuit the Constitutional Convention by the submission to it of certain specific amendments. To hold otherwise would be to reduce the Convention to a servile agency of State Government.” (Emphasis supplied).

As a direct result of the Attorney General’s opinion, the report of the Constitution Revision Commission and the enactment of Chapter 49, Public Acts of 1949, calling a limited Constitutional Convention to consider the nine changes recommended by said Commission, the landmark case of Cummings v. Beeler, 189 Tenn. 151, 223 S.W.2d 913 (1949), was filed.

The suit was brought by Cummings in his official capacity as Secretary of State, seeking a declaratory judgment as to the constitutionality of Chapter 49 of the Public Acts of 1949, for the immediate purpose of determining whether or not the Secretary of State should expend public funds for the holding of the special election on November 8, 1949, submitting the,question of calling the limited Constitutional Convention. The court observed that it must be conceded that authority is granted to the Legislature to propose to the people a call of a convention to alter, reform or abolish the Constitution as a whole; that the question to be determined was whether or not the call could limit the convention to amending the Constitution in part. 223 S.W.2d, at 921. In upholding the 1949 Act and establishing the limited constitutional convention as a political entity, Justice Burnett, writing for the Court, said:

“The power to ‘alter, reform or abolish’ the Tennessee Constitution resides in the people not in the Legislature. . The people have the ultimate power to control and alter their Constitution, subject only to such limitations and restraints as may be imposed by the Constitution of the United States.
* * * * * *
The Constitutional provision above quoted does not prohibit the revision or amendment of a part of the Constitution by the Convention method. The thing that the people call a Convention for is not to revise or to write a new Constitution but only a part thereof. The people having thus voted to circumscribe the limits of their elected Convention delegates, in the particulars as provided for in the Act, bind these delegates within these limits.” (Emphasis supplied). 223 S.W.2d, at 923.

An examination of the call portion of Chapter 49, Public Acts of 1949, at issue before the Court in Cummings, reveal that the parts of the Constitution proposed to be submitted for Convention consideration are described only by article and section number and the subject matter of the section.

The 1949 call for a Constitutional Convention was rejected by the voters. The 1953 Constitutional Convention was called by Chapter 130, Public Acts of 1951, and approved by the people at the election held on August 7, 1952. Said call omitted three issues that were included in the 1949 call and designated the six issues submitted by article and section number and subject matter.

One of the six issues before the Convention was Article XI, Section 3. As amended by that Convention and ratified by the people, the Convention method of our Constitution reads as follows:

“The Legislature shall have the right by law to submit to the people, at any general election, the question of calling a convention to alter, reform, or abolish this Constitution, or to alter, reform or abolish anv specified part or parts of it: and when, upon such submission, a majority of all the voters voting upon the proposal submitted shall approve the proposal to call a convention, the delegates to such convention shall be chosen at the next general election and the convention shall assemble for the consideration of such proposals as shall have received a favorable vote in said election, in such mode and manner as shall be prescribed. No change in. or amendment to. this Constitution proposed bv such convention shall become effective, unless within the limitations of the call of the convention, and unless approved and ratified bv a majority of the qualified voters voting separately on such change or amendment at an election to be held in such manner and on such date as may be fixed bv the convention. No such convention shall be held oftener than once in six years.”

The additions to the 1870 section (underlined above), dealing with the Convention method, provide explicit authorization for a limited constitutional convention. We have carefully examined the Journal of the Constitutional Convention of 1958 and it is abundantly clear that the purpose in adding the additional language that now appears in said paragraph, including the phrase “within the limitation of the call” was to confirm in the amending clause of the Constitution, the holding in Cummings v. Beeler, legalizing the political entity known as a limited constitutional convention, to make it mandatory that the work product of the Convention be submitted for ratification or rejection by the people, and to limit conventions to one in six years. The proponents of the amendment so stated, and the opponents of the amendment, expressed complete confidence in the efficacy of Cummings v. Beeler, supra, as firmly establishing the limited constitutional convention, and considered any amendment to the Convention method to be unnecessary. Journal of Proceedings of Tennessee Limited Constitutional Convention, 1953, pp. 239, 763, 781-784.

The Constitution Revision Commission, the Supreme Court and, finally, the Limited Constitutional Convention of 1953, implicitly, if not explicitly, envisioned as the only limitation upon a constitutional convention the restriction of its deliberations to a particular section and the subject matter of that section of the Constitution; that a convention could be limited to a part of the Constitution, whereas, theretofore there was respectable opinion, including the Attorney General, that it could not be limited in any manner whatsoever.

We are convinced that it was never conceived that within the specified section and the subject matter thereof any further or additional restrictions would or could be placed upon a constitutional convention.

Accordingly, we hold that any restrictions in the call, exceeding a recitation of the subject matter of the existing section designated for consideration, are not binding upon the Convention, and the Convention is free to abolish, or to alter or amend the section to such extent and in such manner as it deems proper. If the Legislature, as the agent of the people, desires to submit to the people the question of calling a Constitutional Convention to consider new subject matter, not embraced in the Constitution, it, of course, may do so by an appropriate description of such subject matter, corresponding to the descriptive format used to describe the subject matter of existing Constitutional sections in the 1949, 1951, and 1962 calls. To the extent that the legislature includes affirmative proposals in the call, beyond the scope aforesaid, the excess is mere surplusage, in the nature of gratuitous advice, and even though approved by the people, is not binding on the Convention, nor does it invalidate the call or the subsequent action of the Convention.

It must be remembered that the Convention method, whether limited or unlimited, is subjected to two votes by the people, the ultimate repository of all power. The primary purpose of the call vote is to determine whether or not the people are willing to permit a convention to consider altering, amending or abolishing the whole Constitution, or specified parts thereof. An affirmative vote for a convention, for limited or unlimited purposes, is a grant by the people to a historic deliberative body to write constitutional, fundamental law as distinguished from statutory law. Imperfection in the call, such as affirmative proposals exceeding the limits heretofore defined, does not invalidate the amending process. The second vote ratifies or rejects the word for word end result of the Convention’s deliberative effort. The final validating step by the people is the most significant action in the entire amending process.

The courts must indulge every reasonable presumption of law and fact in favor of the validity of a constitutional amendment, after it has been ratified by the people. Southern Railway Co. v. Fowler, 497 S.W.2d 891, (Tenn.1973); People v. Sours, 31 Colo. 369, 74 P. 167 (1903); State v. Alderson, 49 Mont. 387, 142 P. 210 (1914); Weeks v. Ruff, 164 S.C. 398, 162 S.E. 450 (1932); State ex rel. Morgan v. O'Brien, 134 W.Va. 1, 60 S.E.2d 722 (1948).

Applying the foregoing principles to the instant case, we do not interpret the Question 3 call as prohibiting the definition of residential rental property containing two or more rental units, as commercial property.

The other issue asserted by plaintiffs is that the definition under attack violates the equal protection clause of the 14th Amendment, U. S. Constitution. It is said that a discrimination between residential property containing two or more rental units is palpably arbitrary, unreasonable and invidious and bears no rational relationship to any purpose for which it could have been created.

More specifically, it is earnestly insisted that rented single-family residences and duplexes occupied one-half by the owner enjoy the 25% assessment ratio, while an identical duplex with both sides rented and all multi-unit apartments, hotels, etc. are assessed at 40%.

The applicable principles often enumerated by the Supreme Court of the United States are stated in Allied Stores of Ohio, Inc. v. Bowers, 358 U.S. 522, 79 S.Ct. 437, 3 L.Ed.2d 480 (1959), as follows:

“. . . The States have a very wide discretion in the laying of their taxes. When dealing with their proper domestic concerns, and not trenching upon the prerogatives of the National Government or violating the guaranties of the Federal Constitution, the States have the attribute of sovereign powers in devising their fiscal systems to ensure revenue and foster their local interests. Of course, the States, in the exercise of their taxing power, are subject to the requirements of the Equal Protection Clause of the Fourteenth Amendment. But that clause imposes no iron rule of equality, prohibiting the flexibility and variety that are appropriate to reasonable schemes of state taxation. The State may impose different specific taxes upon different trades and professions and may vary the rate of excise upon various products. It is not required to resort to close distinctions or to maintain a precise, scientific uniformity with reference to composition, use or value. (Citations omitted.) ‘To hold otherwise would be to subject the essential taxing power of the State to an intolerable supervision, hostile-to the basic principles of our government and wholly beyond the protection which the general clause of the Fourteenth Amendment was intended to assure.’ Ohio Oil Co. v. Conway, supra, 281 U.S. [146] at page 159, 50 S.Ct. [310] at page 314 [74 L.Ed. 775].
“But there is a point beyond which the State cannot go without violating the Equal Protection Clause. The State must proceed upon a rational basis and may ' not resort to a classification that is palpably arbitrary. The rule often has been stated to be that the classification ‘must rest upon some ground of difference having a fair and substantial relation to the object of the legislation.’ (Citations omitted.) ‘If the selection or classification is neither capricious nor arbitrary, and rests upon some reasonable consideration of difference or policy, there is no denial of the equal protection of the law.’ Brown-Forman Co. v. Commonwealth of Kentucky, 217 U.S. 563, 573, 30 S.Ct. 578, 580, 54 L.Ed. 883. State Board of Tax Com’rs of Indiana v. Jackson, 283 U.S. 527, 537, 51 S.Ct. 540, 543, 75 L.Ed. 1248. That a statute may discriminate in favor of a certain class does not render it arbitrary if the discrimination is founded upon a reasonable distinction, or difference in state policy.” (Citations omitted.)

In Allied, the Court was asked by a resident taxpayer who had merchandise stored in four Ohio warehouses to declare unconstitutional an Ohio statute taxing said goods, because of an exemption provided for non-resident owners storing merchandise. Addressing the issue presented by that discriminatory statute, the Court said:

“. . Similarly, it has long been settled that a classification, though discriminatory, is not arbitrary nor violative of the Equal Protection Clause of the Fourteenth Amendment if any state of facts reasonably can be conceived that would sustain it. (Citations omitted.)
“In the light of the law thus well settled, how stands appellant’s case? We cannot assume that state legislative enactments were adopted arbitrarily or without good reason to further some legitimate policy of the State. What were the special reasons, motives or policies of the Ohio Legislature for adopting the questioned proviso we do not know with certainty, nor is it important that we should, Southwestern Oil Co. v. . State of Texas, 217 U.S. 114, 126, 30 S.Ct. 496, 500, 54 L.Ed. 688, for a state legislature need not explicitly declare its purpose. But it is obvious that it may reasonably have been the purpose and policy of the State Legislature, in adopting the proviso, to encourage the construction or leasing and operation of warehouses in Ohio by nonresidents with the attendant benefits to the State’s economy, or to stimulate the market for merchandise and agricultural products produced in Ohio by enabling nonresidents to purchase and hold them in the State for storage only, free from taxes, in anticipation of future needs. Other similar purposes reasonably may be conceived. Therefore, we cannot say that the discrimination of the proviso which exempted only the ‘merchandise or agricultural products belonging to a nonresident * * * if held in a storage warehouse for storage only’ was not founded upon a reasonable distinction, or difference in state policy, or that no state of facts reasonably can be conceived to sustain it. For those reasons, it cannot be said in the light of the settled law as shown by the cases cited, that the questioned proviso was invidious or palpably arbitrary and denied appellant the equal protection of the laws within the meaning of the Fourteenth Amendment.”

More recently in Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356, 93 S.Ct. 1001, 35 L.Ed.2d 351 (1973), that Court had under consideration an ad valorem tax exempting the personal property owned by individuals but retaining the taxation of personal property owned by corporations. Mr. Justice Douglas, writing for the Court, quotes from Allied, and reaffirms the test as follows:

“In that case we used the phrase ‘palpably arbitrary’ or ‘invidious’ as defining the limits placed by the Equal Protection Clause on state power. Id., 358 U.S. at 530, 79 S.Ct., at 442 . . .”

The history of real property taxation in this state, and the amendment itself, leaves no doubt whatever as to the purpose and objective of Article II, Section 28. As shown by the proof in Louisville & Nashville R. R. v. Public Service Commission, D.C., 249 F.Supp. 894 (1966), affirm’d 389 F.2d 247 (6th Cir. 1968), the railroad’s property was being assessed in the counties of Tennessee in which it operated at not less than 55% of actual cash value, while other real property was being assessed at a statewide average of not more than 30%. In fact, according to proof in that case, properties other than utilities were being assessed in some counties as low as 7%, and in 22 counties the assessment was below 15%. The District Court and the Sixth Circuit held that practice to be in violation of the equal protection clause of the 14th Amendment.

In Southern Railway Company v. Clement, 57 Tenn.App. 54, 415 S.W.2d 146 (1967), the Chancellor and the Court of Appeals made it clear that in its pre-amendment status Article II, Section 28 provided no basis for the assessment of any species of property at less than its actual cash value. This Court denied certiorari in May, 1967. It is a matter of common knowledge that these two cases and the report of the Tax Study Commission created by legislative act in 1966 precipitated the amendment of Article II, Section 28, which was accomplished by the process known as Question 3.

The purpose and objective of the Question 3 amendment is to tax income-producing property at a higher rate than owner-occupied residences and farms. That such classification is constitutionally permissible is beyond question. The constitutional and statutory scheme that has resulted from the Question 3 amendment has brought about a state of uniformity and equality of assessment of real property in Tennessee that while not perfect can conservatively be described as vastly superior to its predecessor system in approaching the objective of equality and uniformity throughout the state within the classifications provided. Perfection in the taxation of real property is neither required nor attainable.

With respect to the immediate issue before this Court, it is clear that there is discrimination in favor of the real property owner who lives in one-half of a duplex and rents the other half and in favor of the real property owner who rents one or more single-family residences. There is substantial proof in the Nashville case that single-family residences for rental purposes make a poor investment. The cost of land on the one hand and the savings to be effected in the construction and operation of multi-unit apartments render it inconceivable that any investor would be in the business of renting single-family residences. It is obvious that the Convention and the people deemed it reasonable to embrace within the favored classification of a owner-occupied residence, owners of additional single-family residences and the owner who lives in one-half of his duplex. On the proof and upon conditions of which this Court can take judicial knowledge, the two areas of discrimination mentioned above are, in our opinion, minimal and insignificant and wholly fail to make out a case of palpably arbitrary or invidious discrimination and are therefore within constitutionally permissible limits.

It follows that the statutes under attack herein, implementing Article II, Section 28, are constitutionally sound.

The foregoing opinion renders unnecessary any consideration of the issues raised on appeal by the Memphis tenant-plaintiffs.

The decree of the Chancery Court of Shelby County is reversed. Article II, Section 28, is declared by this Court to be constitutional and the decree of the Chancery Court of Davidson County is affirmed.

The costs are assessed against the plaintiffs in each case.

COOPER, HENRY and BROCK, JJ., concur.

HARBISON, J., not participating.

APPENDIX A

(The call to be printed in full on each ballot or voting machine as provided in Chapter 421, Public Acts, 1968 [as amended])

“Question 3. Shall a convention be called to alter and reform Article II, Section 28 of the Constitution so as to require the classification of property into three classes for purposes of taxation, to wit:

Real Property Intangible Personal Property Tangible Personal Property

Provided that said Convention shall classify Real Property only into four (4) subclassifi-cations, to wit:

(a) Public Utility Property, to be assessed at not less than 45 per cent or more than 55 per cent of its value, the exact percentage to be fixed by the convention.
(b) Industrial and Commercial Property, to be assessed at not less than 35 per cent or more than 45 per cent of its value, the exact percentage to be fixed by the convention;
(c) Residential Property, to be assessed at not less than 25 per cent or more than 35 per cent of its value, the exact percentage to be fixed by the convention; and
(d) Farm Property, to be assessed at not less than 20 per cent or more than 25 per cent of its value, the exact percentage to be fixed by the convention.

Exemption of Tangible Personal Property. Said convention shall further provide and establish an exemption, which shall cover a taxpayer’s personal household goods and furnishings, wearing apparel and other such tangible property, the total of which exemption shall not be less than $5,000.00 or more than $7,500.00, as shall be determined by the Convention.

Exemption of Intangible Personal Property. The Convention shall further provide that money deposited in an individual’s personal or family checking or savings account shall be exempt from taxes, in an amount to be determined by the convention.

No exemption other than those specified herein shall be authorized by the Convention in the case of either tangible personal property or intangible personal property. The ratio of assessment to value of property in each class or sub-class, as shall be established by the convention, shall be equal and uniform throughout the State, and each respective taxing authority shall apply the same tax rate to all property within its jurisdiction.

Said Constitutional Convention, if called, shall not be authorized to amend the Constitution so as to permit a personal income tax, except as already authorized under the present Constitution; and the said Convention, if called, may consider the further provisions of Article 2, Section 28, but no action taken shall be in conflict with the provisions hereof.”

APPENDIX B

“PROPOSAL: RELATIVE TO THE REVISION OF ARTICLE II, SECTION 28, OF THE CONSTITUTION OF TENNESSEE, PROVIDING FOR THE DELETION OF THE PRESENT SECTION AND SUBSTITUTING IN LIEU THEREOF A SECTION PROVIDING FOR THE CLASSIFICATION OF REAL PROPERTY AND TANGIBLE AND INTANGIBLE PERSONAL PROPERTY AND PROVIDING FOR EXEMPTIONS OF CERTAIN REAL PROPERTY, TANGIBLE PERSONAL PROPERTY AND INTANGIBLE PERSONAL PROPERTY.

Be It Resolved, By the Limited Constitutional Convention of 1971 that Article II, Section 28, of the Constitution of the State of Tennessee be amended by deleting the same in its entirety and substituting in lieu thereof the following provisions, to be submitted to a vote of the people for ratification:

In accordance with the following provisions, all property real, personal or mixed shall be subject to taxation, but the Legislature may except such as may be held by the State, by Counties, Cities or Towns, and used exclusively for public or corporation purposes, and such as may be held and used for purposes purely religious, charitable, scientific, literary or educational, and shall except the direct product of the soil in the hands of the producer, and his immediate vendee, and the entire amount of money deposited in an individual’s personal or family checking or savings accounts. For purposes of taxation, property shall be classified into three classes, to wit: Real Property, Tangible Personal Property and Intangible Personal Property.

Real Property shall be classified into four (4) subclassifications and assessed as follows:

(a) Public Utility Property, to be assessed at fifty-five (55%) per cent of its value;

(b) Industrial and Commercial Property, to be assessed at forty (40%) per cent of its value;

(c) Residential Property, to be assessed at twenty-five (25%) per cent of its value, provided that residential property containing two (2) or more rental units is hereby defined as industrial and commercial property; and

(d) Farm Property, to be assessed at twenty-five (25%) per cent of its value.

House trailers, mobile homes, and all other similar movable structures used for commercial, industrial, or residential purposes shall be assessed as Real Property as an improvement to the land where located.

The Legislature shall provide tax relief to elderly low-income taxpayers through payments by the State to reimburse all or part of the taxes paid by such persons on owner-occupied residential property, but such reimbursement shall not be an obligation imposed, directly or indirectly, upon Counties, Cities or Towns; provided, that such tax relief for the years 1973 through 1977 shall be not less than an amount equal to the State, County, and Municipal Taxes on Five Thousand ($5,000) Dollars worth of the full market value (or One Thousand Two Hundred Fifty ($1,250) Dollars of the assessed value) of property used for a residence by any taxpayer over sixty-five (65) years of age for a period of one (1) year prior to the date of assessment, provided further, that such relief shall not extend to persons having a total annual income from all sources in excess of Four Thousand Eight Hundred ($4,800) Dollars.

The Legislature may provide tax relief to home owners totally and permanently disabled, irrespective of age, as provided herein for the elderly.

Tangible Personal Property shall be classified into three (3) subelassifications and assessed as follows:

(a) Public Utility Property, to be assessed at fifty-five (55%) per cent of its value;

(b) Industrial and Commercial Property, to be assessed at thirty (30%) per cent of its value; and

(c) All other Tangible Personal Property, to be assessed at five (5%) per cent of its value; provided, however, that the Legislature shall exempt Seven Thousand Five Hundred ($7,500) Dollars worth of such Tangible Personal Property which shall cover personal household goods and furnishings, wearing apparel and other such tangible property in the hands of a taxpayer.

The Legislature shall have power to classify Intangible Personal Property into sub-classifications and to establish a ratio of assessment to value in each class or subclass, and shall provide fair and equitable methods of apportionment of the value of same to this State for purposes of taxation. Banks, Insurance Companies, Loan and Investment Companies, Savings and Loan Associations, and all similar financial institutions shall be assessed and taxed in such manner as the Legislature shall direct; provided that for the year 1973, or until such time as the Legislature may provide otherwise, the ratio of assessment to value of property presently taxed shall remain the same as provided by law for the year 1972; provided further that the taxes imposed upon such financial institutions, and paid by them, shall be in lieu of all taxes on the redeemable or cash value of all of their outstanding shares of capital stock, policies of insurance, customer savings and checking accounts, certificates of deposit, and certificates of investment, by whatever name called, including other intangible corporate property of such financial institutions.

The ratio of assessment to value of property in each class or subclass shall be equal and uniform throughout the State, the value and definition of property in each class or subclass to be ascertained in such manner as the Legislature shall direct. Each respective taxing authority shall apply the same tax rate to all property within its jurisdiction.

The Legislature shall have power to tax merchants, peddlers, and privileges, in such manner as they may from time to time direct, and the Legislature may levy a gross receipts tax on merchants and businesses in lieu of ad valorem taxes on the inventories of merchandise held by such merchants and businesses for sale or exchange. The portion of a Merchant’s Capital used in the purchase of merchandise sold by him to non-residents and sent beyond the State, shall not be taxed at a rate higher than the ad valorem tax on property. The Legislature shall have power to levy a tax upon incomes derived from stocks and bonds that are not taxed ad valorem.

This amendment shall take effect on the first day of January, 1973.”

APPENDIX C

(The call to be printed in full on each ballot or voting machine, as provided in Chapter 49, Public Acts, 1949)

“Shall a Convention be held to alter, reform or abolish the following provisions and subject matter of the Constitution of Tennessee, to-wit: Article II, Sections 4, 5 and 6 (relating to the apportionment of representatives and senators); Article II, Section 11 (relating to the legislative quorum); Article II, Section 23 (relating to the compensation and expenses of members of the Legislature); Article II, Sections 28 and 29 (relating to taxation, so as to empower the Legislature to classify property for taxation and to fix a different rate value, or method of taxation for different classes of property); Article III, Section 4 (relating to the Governor’s term of office); Article III, Section 18 (relating to the Governor’s veto power); Article IV, Section 1 (relating to the right of suffrage); Article XI, Section 3 (relating to amendments and conventions); Article XI, Section 9, amend this Section either altering, reforming or abolishing it, so as to provide (a) for home rule for municipalities and counties, (b) for uniform systems of city charters to be prescribed by the General Assembly, (c) for the consolidation in whole or in part of governmental and corporate functions of municipalities and counties insofar as may be authorized by the General Assembly; which Convention shall be limited to consideration of and action upon those Sections and the subject matter hereinabove set forth, the action of such Convention to become effective as to each amendment adopted by the Convention only after being separately submitted to and ratified by the voters of the State?

FOR THE CONVENTION AGAINST THE CONVENTION”

APPENDIX D

(The call to be printed in full on each ballot or voting machine as provided in Chapter 130, Public Acts, 1951)

“CONSTITUTIONAL REFERENDUM

Shall a convention be held to alter, reform or abolish the following provisions and subject matter of the Constitution of Tennessee, to-wit: Article XI, Section 3 (relating to amendments and conventions); Article II, Section 23 (relating to the compensation and expenses of members of the Legislature); Article III, Section 4 (relating to the Governor’s term of office); Article III, Section 18 (relating to the Governor’s veto power); Article IV, Section 1 (relating to the right of suffrage); Article XI, Section 9 (relating to private and local affairs), by altering, reforming or abolishing said section or by adding a new section to said Article XI so as to provide (a) for home rule for municipalities and counties, (b) for uniform systems of city charters to be prescribed by the General Assembly, (c) for the consolidation in whole or in part of governmental and corporate functions of municipalities and counties as prescribed and authorized by the General Assembly; which convention shall be limited to consideration of and action upon those sections and the subject matter hereinabove set forth, the action of such convention to become effective as to each amendment adopted by the / convention only after being separately submitted to and ratified and approved by the voters of the State?

FOR THE CONVENTION . AGAINST THE CONVENTION”

APPENDIX E

(The call to be printed in full on each ballot or voting machine as provided in Chapter 2, Public Acts, 1962, Extraordinary Session)

“CONSTITUTIONAL REFERENDUM

Shall a convention be held to alter, reform or abolish the following provisions and subject matter of the Constitution of Tennessee, to wit: Article II, Sections 3, 4, 5, 6, 7, 8, 11, 15,16 and 23 relative to the Legislative Department of State government, its authority and terms of office; the methods and means of apportioning the Representatives and Senators of such department; the time of holding elections for such offices; the time for Legislative meetings and the inauguration of the Governor; policies, quorum, and adjournments of each such House; filling of vacancies for such offices; limitations upon power of adjournment of such Houses; and the compensation of members of such department; which convention shall be limited to consideration of and action upon these sections and the subject matter herein above set forth, the action of such convention to become effective as to each amendment adopted by the convention only after being separately submitted to and ratified and approved by the voters of the State.

FOR THE CONVENTION AGAINST THE CONVENTION”

OPINION ON PETITION TO REHEAR

FONES, Chief Justice.

The petition to rehear asserts that we have usurped the power of the people to control a constitutional convention and have misread and overruled Illustration Design Group, Inc. v. McCanless, supra.

We fully recognize that it is the people and not the legislature who approve or reject the submission of constitutional subjects to the consideration of a limited constitutional convention. The legislature in proposing a convention, and in proposing the subjects for its consideration, is not exercising its legislative power to enact statutory law. It is acting as an agency of the people, performing the first step in the amending process by the convention method.

It should be remembered that there are two (2) methods by which our Constitution may be amended: the legislative method and the convention method. Article Eleven, Section Three, Constitution of Tennessee. When the legislative method is used, the proposed amendment is drafted in toto, by the legislature and after the legislative approval prescribed in paragraph one of Article Eleven, Section Three, the amendment is submitted to the people for approval or rejection. When the conviction method is used, historically, the convention has drafted and proposed amendments, upon those subjects included in the call. Paragraph two of Article Eleven, Section Three says that the delegates to such convention shall assemble for the consideration of such proposals as shall have received a favorable vote in the “call” election.

The convention method involves a vote of the people at three (3) separate elections covering a period of years and the expense of convening and maintaining delegates to a convention. It is sheer folly to pursue the convention method unless the purpose is to have the convention draft amendments, that a busy legislature does not have the time to consider. If the legislature has the time to draft constitutional amendments then it should use the legislative method provided in paragraph one, Article Eleven, Section Three. The only legitimate purpose in calling a constitutional convention is to obtain its work product, to wit, a thoroughly debated, maturely deliberated, proposed constitutional amendment to recommend to the people. The people then make the final judgment upon its merit.

In drafting the Question Three call, the legislature deviated from the consistent pri- or procedure of merely designating specific subjects to be considered by a convention. This has created a serious problem. This is the fourth lawsuit attacking the constitutionality of the Question Three amendment. The basic contention in each case has as its substance, the extensive draft by the legislature of the subject matter of the amendment. The constitutional amending process by the convention method is threatened with instability, and at the center of the storm is the single issue of how far the legislature may go, as an agency of the people, in drafting a subject or a proposal for consideration by a limited constitutional convention.

No one could successfully contend that in calling an unlimited constitutional convention the legislature could draft the whole or any part of a proposed constitution. There is no authority anywhere for such a contention. The only distinction between an unlimited constitutional convention and a limited constitutional convention is that a limited constitutional convention can only consider a specified part or parts of the Constitution while an unlimited constitutional convention may consider the whole of the Constitution, and alter, reform or abolish any part, or all of it. The first three and one half lines of paragraph two Article Eleven, Section Three so provide. Cummings v. Beeler, supra, in establishing the validity of the limited constitutional convention so held.

We have held in this case that the legislative function, in acting as the agency of the people, to draft a call of a limited constitutional convention, is to specify the part or parts of the Constitution that the people may want a convention to consider. The call of a limited constitutional convention is not a law in the usual sense, and is not enacted by the legislature in the exercise of its fundamental authority to enact statutory law. It does not take effect when enacted by the legislature and has no efficacy until approved by the people. West v. Carr, 212 Tenn. 367, 370 S.W.2d 469 (1963). When approved by the people its only vitality is that it prescribes the subjects, or the parts of the Constitution that the convention may consider, and has the effect of proscribing that the convention cannot consider subjects or parts of the Constitution that are not included in the call, as approved.

The assertions in the petition to rehear with respect to Illustration Design Group, Inc. v. McCanless, supra, reflect a misunderstanding of our opinion in the instant case.

In referring to the legislative function of proposing the subjects the people may want a limited constitutional convention to consider, that case uses phrases which do not appear in any of the authorities cited therein and have caused confusion to the bench and bar of this State. Instead of what we consider the appropriate language derived from Cummings v. Beeler, supra, to wit, that the proposed call should specify the part or parts of the Constitution or the subject, the case under discussion used the following phrases:

“delineating the scope and power of such convention”
“defining its scope and powers” (454 S.W.2d at 119)
“define the scope and action of such convention”
“but they have expressly limited the consideration and action of the convention to the proposals already approved by a vote of the people” (454 S.W.2d at 120)

We agree with the result reached in Illustration Design Group, Inc., supra. We disagree with the use of the foregoing phrases, but only insofar as said phrases are interpreted to mean that the legislature may go further than the specification of parts of the .Constitution or subjects, to be considered by a limited constitutional convention, and undertake to draft a substantial portion of the amendment itself.

The petition to rehear is denied.

COOPER, HENRY and BROCK, JJ., concur.

HARBISON, J., not participating.

      . Compare Appendix A with the three prior calls of limited constitutional conventions in Appendices C, D and E. The first legislative call of a limited constitutional convention was in 1949 and the first limited constitutional convention in this state’s history convened in 1953.

      . “ — And if the people shall approve and ratify such amendment or amendments by a majority of all the citizens of the State voting for Representatives, voting in their favor, — ” Article 11, Section 3, Constitution of 1870.

      . Among the cases relied upon by Attorney General Beeler in reaching the foregoing conclusion were: Carton v. Sec. of State, 151 Mich. 337, 115 N.W. 429; Goodrich v. Moore, 2 Minn. 61, Gil. 49; Sproule v. Fredericks, 69 Miss. 898, 11 So. 472.


author: PER CURIAM.

text:
    Harold STEELE et al., Appellees, v. Hugh WATERS et al., Appellants.
    Supreme Court of Tennessee.
    Aug. 20, 1975.
    Blackburn, McCune & Sutherland, Nashville, for appellees.
    R. A. Ashley, Jr., Atty. Gen., C. Hayes Cooney, Chief Deputy Atty. Gen., for appellants.
    Robert W. Weismueller, Jr., Nashville, Frederic S. LeClercq, Knoxville, W. Harold Bigham, Robert D. Kamenshine, Vanderbilt Law School, Nashville, for amicus curiae.
   PER CURIAM.

Hugh Waters, Chairman of the Textbook Commission of the State of Tennessee, and others, have appealed from the decree of the Chancery Court of Davidson County, .Tennessee declaring unconstitutional the second and third paragraphs of Chapter 377 of the Public Acts of 1973 (codified as an Amendment to T.C.A. § 49-2008) as being violative of the first amendment to the United States Constitution and Article 1, Section 3, of the Constitution of Tennessee, and permanently enjoining the enforcement and execution of the statute.

During the pendency of the appeal, the United States Court of Appeals for the Sixth Circuit rendered an opinion in an action brought by Daniel (Arthur W. Jones, Larry Ray Wilder, and the National Association of Biology Teachers) v. Waters (Textbook Commission of the State of Tennessee and other officials of the State), 515 F.2d 485, to challenge the constitutionality of Chapter 377 of the Public Acts of 1973. In the opinion, the Sixth Circuit Court of Appeals concluded that the Act in issue was “unconstitutional on its face.” Specifically, the Court held:

(1) “. . . [T]he provisions of the Tennessee statute are obviously in violation of the first Amendment prohibition on any law ‘respecting the establishment of-religion’ as that phrase has been authoritatively interpreted in Epperson v. Arkansas, 393 U.S. 97 [89 S.Ct. 266, 21 L.Ed.2d 228] (1968), and Lemon v. Kurtzman, 403 U.S. 602 [91 S.Ct. 2105, 29 L.Ed.2d 745] (1971);”
(2) “. . . [T]he exclusion at the end of Section 1 of the statute would inextricably involve the State Textbook Commission in the most difficult and hotly disputed Chief Justice Burger’s third standard [set out in Lemon v. Kurtzman, 403 U.S. 602, 612-613 [91 S.Ct. 2105] (1971)]. Throughout human history the God of some men has frequently been regarded as the Devil incarnate by men of other religious persuasions. It would be utterly impossible for the Textbook Commission to determine which religious theories were ‘occult’ or ‘satanical’ without seeking to resolve the theologians through the ages.
“The requirement that some religious concepts of creation, adhered to presumably by some Tennessee citizens, be excluded on such grounds in favor of the Bible of the Jews and the Christians represents still another method of preferential treatment of particular faiths by state law and, of course, is forbidden by the establishment Clause of the First Amendment.”

The officials of the State of Tennessee did not seek a review of the holding of the Sixth Circuit Court of Appeals by filing a petition for certiorari in the Supreme Court of the United States.

We concur in the holding of the Sixth Circuit Court of Appeals that Chapter 377 of the Public Acts of 1973 violates the First Amendment to the United States Constitution, and further hold that for the same reasons, the Act violates Article 1, Section 3, of the Constitution of the State of Tennessee as held by the Chancellor.

Accordingly, the decree of the Chancery Court of Davidson County is affirmed. Costs are adjudged against the appellants.

      . These amendments read as follows:
      Any biology textbook used for teaching in the public schools, which expresses an opinion of, or relates to a theory about origins or creation of man and his world shall be prohibited from being used as a textbook in such system unless it specifically states that it is a theory as to the origin and creation of man and his world and is not represented to be scientific fact. Any textbook so used in the public education system which expresses an opinion or relates to a theory or theories shall give in the same textbook and under the same subject commensurate attention to, and an equal amount of emphasis on, the origins and creation of man and his world as the same is recorded in other theories, including, but not limited to, the Genesis account in the Bible. The provisions of this section shall not apply to use of any textbook now legally in use, until the beginning of the school year of 1975-1976; provided, however, that the textbook requirements stated above shall in no way diminish the duty of the state textbook commission to prepare a list of approved standard editions of textbooks for use in the public schools of the state as provided in this section. Each local school board may use textbooks or supplementary material as approved by the state board of education to carry out the provisions of this section. The teaching of all occult or satanical beliefs of human origin is expressly excluded from this section.
      Provided however that the Holy Bible shall not be defined as a textbook, but is hereby declared to be a reference work, and shall not be required to carry the disclaimer above provided for textbooks.


text:
    The EATON CORPORATION, Appellant, v. Earl R. QUILLEN, Appellee.
    Supreme Court of Tennessee.
    Aug. 25, 1975.
    Jerome Templeton, Knoxville, for appellant.
    Frank Q. Vettori, O’Neil, Parker, Williamson & Bond, Knoxville, for appellee.
   OPINION

FONES, Chief Justice.

Employer appeals from an award of fifty (50%) percent permanent partial disability to the right hand, asserting that the disability sustained by employee is limited to the middle and index fingers.

Employee, Quillen, was moving a heavy die cast machine on a buggy when a wheel on the buggy dropped into a hole on the floor .causing the machine to shift against the edge of the buggy, mashing the fingers on his right hand.

Dr. Gallivan, an orthopedic surgeon, was the attending physician and testified for the employer. The accident essentially amputated the second finger about mid-way and the very distal end of the index finger. Dr. Gallivan revised the amputation of the second or middle finger and closed the skin flap over the end of the stump. The index finger was attached to a skin flap in the palm of Quillen’s hand and three (3) weeks later the flap was removed from the palm, providing a new tip to his index finger. The accident occurred in June, 1972, and Dr. Gallivan discharged him from further treatment in December, 1972.

Employee returned to see Dr. Gallivan in June, 1973, complaining that all of the joints in the fingers, hand and wrist felt stiff and sore; that the hand felt puffy as well as the fingers and that when handling tools he sometimes had to resort to his left hand.

Dr. Gallivan described said complaints as subjective and testified that he could not either clinically or by x-ray account for the stiffness and soreness in all of the joints of the fingers and wrist. He rated Quillen’s disability as one hundred (100%) percent to the second finger and ten (10%) percent to fifteen (15%) percent to the first or index finger. According to Dr. Gallivan’s test, Quillen was able to grip eighty (80) pounds with his right hand and one hundred twenty (120) pounds with his left. He was right-handed.

Dr. Patterson, an orthopedic surgeon, examined employee in May, 1973, and was called as a witness by Quillen. He gave a detailed account of the history reported to him and his observations of the fingers and hand on that occasion. Dr. Patterson administered a grip test and observed Quillen in the simulated use of a screw driver, a hammer, and a writing pen. Dr. Patterson rated the loss of two (2) phalanges of the second finger as eighty (80%) percent permanent partial disability of that finger, which disability he converted to sixteen (16%) percent loss of use to the right hand. He stated that the loss of motion of the right' index finger, which he had testified about in some detail, together with the weakness in gripping capacity of a right hand dominant person provided the basis for an additional four (4%) percent permanent partial disability to that hand. Finally, principally on a subjective basis of soreness of the ring and little finger when performing certain tasks, it was his opinion that there was a further one (1) to two (2%) percent permanent disability that might be added to the right hand.

Employee testified that he was employed by defendant corporation as a general maintenance man and that his principal skill was as a journeyman electrician. His duties involved the repair and maintenance of everything in the plant. He testified in considerable detail about the difficulties that he encountered in the use of tools and the soreness and stiffness in his finger joints and knuckles that he insisted was continuously present. He testified that his ring finger and little finger on the right hand were swollen on the day of the trial, almost two (2) years after the accident.

The rule governing when it is appropriate to award loss of use of the hand, in the case of finger-hand injuries, was adopted in the case of S. C. Weber Iron & Steel Company v. Jeffery, 161 Tenn. 142, 29 S.W.2d 656 (1929). Justice Swiggart, writing for the Court, quotes the rule from Rockwell v. Lewis, 168 App.Div. 74, 154 N.Y.S. 893 (S.Ct.1915) as follows:

“ — We have no doubt, however, that where the loss or injury to fingers and thumb result in the permanent loss of the use of the hand in the practical everyday work of the individual, the commission is authorized to recognize this fact and to treat the hand as lost in fixing the compensation. That is the natural and logical meaning of the language, which seeks to do approximate justice to the individual, and it should not be construed to work an injustice in a case such as is here presented.”

The rule has been approved and applied in Standard Glass Company v. Wallace, 189 Tenn. 213, 225 S.W.2d 35 (1949); Lambert Brothers v. Dishner, 212 Tenn. 697, 372 S.W.2d 166 (1963); and Federal Copper & Aluminum Co. v. Wright, 504 S.W.2d 957 (Tenn.1974).

Employer insists that the compensation provided for the loss of a finger or fingers, “ — of necessity contemplates and pays for the normal incidental disability caused to the hand by the finger loss.” It is said that the evidence in this case shown no disability to the hand beyond that which is normal and can be expected from the finger loss suffered by Quillen. It is therefore reasoned that there is no material evidence to support an award based upon any loss of use to the hand.

It is true that the composite finger injuries in this case are descriptively less extensive than in the Tennessee cases cited above but we cannot say that there is no material evidence to support an award based on the loss of use of the hand.

The trial judge had material evidence before him provided by the testimony of Dr. Patterson and Quillen, to support a finding that in the practical, everyday work performed by said employee he had sustained a loss of use of the hand. Dr. Patterson expressly testified that the conditions he found in May, 1973, were permanent.

While we agree with employer that there is a point at which finger injuries must remain finger injuries and be compensated as finger injuries, the material evidence rule requires that we affirm the trial court in this case. The costs are adjudged against Eaton Corporation.

COOPER, HENRY, BROCK and HARBI-SON, JJ., concur.

      . The statute provides that loss of more than one phalange shall be considered as loss of the entire finger. T.C.A. Section 50-1007(c).

      . S. C. Weber Iron & Steel Company v. Jeffery, supra, involved toe injuries and loss of use of the foot.