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    STATE of Tennessee ex rel. Henry F. SWANN, District Attorney General, Petitioner, v. Liston PACK, Pastor of the Holiness Church of God in Jesus Name, et al., Respondents.
    Supreme Court of Tennessee.
    Sept. 8, 1975.

      R. A. Ashley, Jr., Atty. Gen., William C. Koch, Jr., Asst. Atty. Gen., Nashville, Henry F. Swann, Dist. Atty. Gen., for petitioner.
    Edward Michael Ellis; Knoxville, Theo J. Emison, Jr., Alamo, for respondents.
   OPINION

HENRY, Justice.

We granted certiorari in this case to determine whether the State of Tennessee may enjoin a religious group from handling snakes as a part of its religious service and in accordance with its Articles of Faith, on the basis of such action constituting a public nuisance. '

The Circuit Court at Newport permanently enjoined the defendant, Pack, Pastor of The Holiness Church of God in Jesus Name, of Newport, and one of his Elders from “handling, displaying or exhibiting dangerous and poisonous snakes”, predicating its action primarily upon a finding that “the handling of said dangerous and poisonous snakes is in violation of T.C.A. § 39-2208 and that said practice is done in the presence of children and other people attending church services. . .

The Court of Appeals, in a split decision, found the injunction to be overbroad and modified it to read that the respondents

are permanently enjoined from handling, displaying or exhibiting dangerous and poisonous snakes in such manner as will endanger the life or health of persons who do not consent to exposure to such danger.
Petitioner assigns a single error, viz.: The Court of Appeals erred in holding that the State could not completely enjoin violations of T.C.A. § 39-2208 as common law public nuisances.

As a triggering device to invoke the jurisdiction of this Court, this assignment is sufficient; however, it does not raise the precise issue before the Court for determination. This follows from the basic principle that a common law nuisance is not founded on any statute and a public nuisance may exist with or without statutory predicate. While other questions lurk in the record, we deem the critical and controlling issue to be as set forth in the opening sentence of this opinion.

I.

To place this controversy in proper perspective, we note the pleadings and trial proceedings.

On April 14, 1973, the District Attorney General of the Second Judicial Circuit filed his petition in the Circuit Court at Newport charging that respondents Pack and certain designated Elders, including Albert Ball, had been handling snakes as a part of their church service “for the last two years”; that this was one of the rituals of the church to test the faith and sincerity of belief of church members; that Pastor Pack “has become anointed”, along with other members of the church and has “advanced” to using deadly drugs, to wit, strychnine; that at a church service on April 7, 1973 snakes were handled and an “Indian boy was bitten and his arm became swollen”; that two named church members drank strychnine and died as a result; that, at the funeral of one of these, Pastor Pack, and others, handled snakes; and that Pastor Pack has proclaimed his intentions to continue these practices. The prayer was for an injunction enjoining respondents “from handling, displaying, or exhibiting poisonous snakes or taking or using strychnine or other poisonous medicines.” In the alternative, and upon failure of the named defendants to cease and desist, petitioner prayed that the church be padlocked as a public nuisance.

By order entered April 21, 1973, the trial court found these facts to be true; that § 39-2208 had been violated and ordered that the defendants be

(e)njoined from handling poisonous snakes or using deadly poisons in any church service being conducted in said church or at any other place in Cocke County, Tennessee until further orders of the Court. (Emphasis supplied).

Why the judge of a court having personal jurisdiction of the parties and state-wide jurisdiction of the subject matter elected to permit these defendants to practice snake handling as a part of their religious worship in ninety-four counties of the state and deny them the same identical right in the remaining county is not clear.

Moreover the record reflects that immediately following the above quoted language the trial judge added, in his own handwriting, the following:

However, any person who wishes to swallow strychnine or other poison may do so if he does not make it available to any other persons.

The further result of this order was that defendants could not practice snake handling, from which death might ensue but could drink strychnine, a highly poisonous drug.

The record reflects no explanation for this incongruity.

Thereafter, the District Attorney General filed a second petition alleging stepped up activity, at the Holiness Church. On July 1, 1973, “a national convention for the snake handlers’ cult of the United States” was held and “many dangerous and poisonous snakes were displayed” and one of the handlers had been bitten and was in a Chattanooga hospital recuperating. Services were conducted on July 3 and July 7, 1973, and again snakes were handled. All this led the District Attorney General to conclude and charge that Cocke County was in imminent danger and likely to “become the snake handling capital of the world”.

In response to this citation, respondents were held in contempt, fined and sentenced, but sentences were suspended in each case, “until the said defendant handles poisonous snakes at said church are (sic) any other place in Cocke County, Tennessee.”

Up to this point defendants had not been represented by counsel.

By order entered August 18,1973 respondents were jailed in default of payment of the fines theretofore imposed and directed to appear on August 25,1973 to show cause why they should not be required to serve the sentences.

The hearing was conducted on August 25, 1973 and September 27, 1973. There is no substantial factual dispute between the parties. In fact the entire factual situation is dependent upon the pleadings, the testimony of one witness, various stipulations and exhibits.

It was stipulated that various witnesses would testify that they had never seen anyone other than designated representatives of this particular church handle snakes; that they never saw any person who was either a parishioner or a nonmember present at the church services who had ever been placed in immediate danger.

It was further stipulated that an anthropologist would testify that snake handling is a legitimate part of their religious service; that she had never seen anyone endangered by handling snakes; that proper precautions were always taken; and that handling snakes is a legitimate and historic part of the church service. Two other witnesses would verify this testimony.

It was further stipulated that the “Indian boy”, bitten at one of the services, was thirty years old.

It was further stipulated that the Holiness Church of God in Jesus Name is located about a half mile from the nearest paved road, and at the end of a dead-end, dirt, private, mountain road and on property owned by the church.

The issues were not fully developed and the record is meager.

The State made no contention that this is not an organized religious group nor did it question that the practice of handling snakes was a recognized part of its Articles of Faith, nor did it question the sincerity of the conviction of the respondents.

By final decree the trial judge made the injunction permanent, directing that defendants “be perpetually enjoined from handling, displaying or exhibiting dangerous and poisonous snakes at the said Holiness Church of God in Jesus Name, or at any other place in Cocke County, Tennessee.”

II.

The history and development of the Holiness Church is relevant.

The Mother Church was founded in 1909 at Sale Creek in Grasshopper Valley, Tennessee, approximately thirty-five miles northeast of Chattanooga, by George Went Hensley. Hensley was motivated by a dramatic experience which occurred atop White Oak Mountain on the eastern rim of the valley during which he confronted and seized a rattlesnake which he took back to the valley and admonished the people to “take up or be doomed to eternal hell.”

Hensley, and his followers, based their beliefs and practices on Mark 16, verses 17 and 18, which in the Authorized or King James version, read as follows:

And these signs shall follow them that believe; in my name shall they cast out devils; and shall speak with new tongues; They shall take up serpents; and if they drink any deadly thing, it shall not hurt them, they shall lay hands on the sick, and they shall recover. (Italics ours)

The church Hensley founded spread throughout the south and southeast and continues to exist today, primarily in rural and relatively isolated regions throughout this area. The Holiness Church of God in Jesus Name, in Cocke County, is a part of this movement. LaBarre, in They shall Take Up Serpents, asserts that “(t)he roots of the movement lie deep in American religious history” and asserts that it is one of the “offshoots of Methodism.” Writers seem to be in general agreement that it is a “charismatic sect, or cult, or group of the Pentecostal variety.”

To say that this is not a conventional movement would be a masterpiece of understatement. Its beliefs and practices are, to say the least, unconventional and out of harmony with contemporary customs, mores and notions of morality. They oppose drinking (to include carbonated beverages, tea and coffee), smoking, dancing, the use of cosmetics, jewelry or other adornment. They regard the use of medicine as a sure sign of lack of faith in God’s ability to cure the sick and look upon medical doctors as being for the use of those who do not trust God. When greeting each other, the men use the “holy kiss”, a mouth-to-mouth osculation “accompanied by a vigorous, if not passionate hug.” The “holy kiss” is not exchanged between members of the opposite sexes.

But it is their belief in handling serpents that has catapulted them into the limelight and has produced their legal difficulties.

There is some apparent confusion with respect to their purpose in the use of serpents as a central practice in their religious beliefs. Harden et al. v. State, 188 Tenn. 17, 216 S.W.2d 708 (1948) treated snake handling as being “the test and proof of the sincerity of their belief.” In this record it is asserted that the use of serpents is designed as a test of the faith and sincerity of church members. Our research indicates that this is not precisely correct. Their basic reason is compliance with the scripture as they interpret it, and as required by their Articles of Faith. But the practice of snake handling is not a test of faith, nor proof of godliness. Its sole purpose is to “confirm the word”. In the words of Alfred Ball, a defendant to this suit:

We don’t take up serpents, handle fire or drink strychnine to test the faith of the people at all. That’s not the point of it, . These are signs that God said would follow the believers. And, these signs, are to confirm the Word of God, and that’s the only purpose for them . They’re not to test the faith of the person doing it. They’re not to test whether he’s a good person. It’s simply and only to confirm the Word of God. That’s all God intended the signs for, and that’s the only reason we do them.
Pastor Pack states:
What serpent handling’s for anyway is to confirm the Word.

Whether the practice is to “test the faith”, is not relevant to this controversy. We only make the distinction in the interest of an accurate and comprehensive statement of the beliefs of this religious group and its admittedly unusual ritual.

We should point out that the snakes are supplied by “sinners” or “sinner men” or unbelieving “sinner boys” or “unbelievers.”

Lastly, it should be pointed out that snakes are only handled when the member or handler has become “anointed”. As we understand this phenomenon and the emotional reaction it produces, it is something akin to saying that a member doesn’t handle snakes until the “spirit moves him”. Unquestionably this is an emotional stimulus produced by extreme faith and generating great courage. Perhaps the whole belief in “anointment” can best be summed up by the defendant, Liston Pack:

When I become anointed to handle serpents, my hands get real numb. It is a tremendous feeling. Maybe symbolic to an electric shock, only an electric shock could hurt you. This’ll be pure joy.
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It comes from inside ... If you’ve got the Holy Ghost in you, it’ll come out and nothing can hurt you. Faith brings contact with God and then you’re anointed. It is not tempting God. You can’t tempt God by doing what He says do. You can have faith, but if you never feel the anointing, you had better leave the serpent alone.

Such is the nature of the religious group with which we deal.

III.

Again, this is not a conventional religious group and its members are few. There is,- however, no requirement under our State or Federal Constitution that any religious group be conventional or that it be numerically strong in order that its activities be protected. Nor is there any requirement that its practices be in accord with prevailing views.

The First Amendment to the Constitution of the United States requires in clear terms that:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; .

Article 1, Section 3 of the Constitution of Tennessee contains a substantially stronger guaranty of religious freedoms. It provides:

That all men have a natural and indefeasible right to worship Almighty God according to the dictates of their own conscience; that no man can of right be compelled to attend, erect, or support any place of worship, or to maintain any minister against his consent; that no human authority can, in any case whatever, control or interfere -with the rights of conscience; and that no preference shall ever be given, by law, to any' religious establishment or mode of worship.

A “mode of worship”, even of a religious group wherein the handling of serpents is central to its Articles of Faith, is constitutionally protected under the Constitutions of Tennessee and of the United States.

In his original draft of the Virginia Act Establishing Religious Liberties, Thomas Jefferson, postulated, inter alia:

No man is a competent judge of the religion of another.

Under our constitutions, a citizen may be a devout Christian, a dedicated Jew or a consummate infidel—or he may be a member of the Holiness Church of God in Jesus Name. The government must view all citizens and all religious beliefs with absolute and uncompromising neutrality. The day this Country ceases to countenance irreli-gión or unusual or bizarre religions, it will cease to be free for all religions. We must prefer none and disparage none.

We, therefore, hold that the Holiness Church of God in Jesus Name, is a constitutionally protected religious group.

This is not to say; however, that this or any other religious group has an absolute and unbridled right to pursue any practice of its own choosing. The right to believe is absolute; the right to act is subject to reasonable regulation designed to protect a compelling state interest. This belief-action dichotomy has been the subject of numerous decisions of the Supreme Court of the United States.

IV.

An early case dealing with the belief-action dichotomy is Reynolds v. United States, 98 U.S. 145, 25 L.Ed. 244 (1878), wherein the defendant, a member of the Church of Jesus Christ of Latter-Day Saints, commonly called the Mormon Church, was indicted for polygamy and defended upon the ground that, under his religious faith, it was his duty to practice polygamy. In disposing. of this contention and in holding that a religious belief cannot be a justification for a criminal violation, the Court said:

Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices. Suppose one believed that human sacrifices were a necessary part of religious worship, would it be seriously contended that the civil government under which he lived could not interfere to prevent a sacrifice? Or if a wife religiously believed it was her duty to burn herself upon the funeral pile of her dead husband, would it be beyond the power of the civil government to prevent her carrying her belief into practice?
So here, as a law of the organization of society under the exclusive dominion of the United States, it is provided that plural marriages shall not be allowed. Can a man excuse his practices to the contrary because of his religious belief? To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself. Government could exist only in name under such circumstances. 98 U.S. 166, 167.

This philosophy was further refined and advanced in Davis v. Beason, 133 U.S. 333, 10 S.Ct. 299, 33 L.Ed. 637 (1890), wherein the Court said:

The first amendment to the constitution, in declaring that congress shall make no law respecting the establishment of religion or forbidding the free exercise thereof, was intended to allow every one under the jurisdiction of the United States to entertain such notions respecting his relations to his Maker and the duties they impose as may be approved by his judgment and conscience, and to exhibit his sentiments in such form of worship as he may think proper, not injurious to the equal rights of others, and to prohibit legislation for the support of any religious tenets, or the modes of worship of any sect. ... It was never intended or supposed that the amendment could be invoked as a protection against legislation for the punishment of acts inimical to the peace, good order and morals of society. 133 U.S. 342, 10 S.Ct. 300. It is assumed by counsel of the petitioner that, because no mode of worship can be established, or religious tenets enforced, in this country, therefore any form of worship may be followed, and any tenets, however destructive of society, may be held and advocated, if asserted to be a part of the religious doctrines of those advocating and practicing them. But nothing is further from the truth. While legislation for the establishment of a religion is forbidden, and its free exercise permitted, it does not follow that everything which may be so called can be tolerated. Crime is not the less odious because sanctioned by what any particular sect may designate as “religion.” 133 U.S. at 345, 10 S.Ct. at 301.

In Cantwell v. State of Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213 (1940), the Court succinctly stated the belief-action doctrine and simultaneously recognized the delicate balance which must be preserved, in these words:

Thus the Amendment embraces two concepts, — freedom to believe and freedom to act. The first is absolute but, in the nature c" things, the second cannot be. Conduct remains subject to regulation for the protection of society. The freedom to act must have appropriate definition to preserve the enforcement of that protection. In every case the power to regulate must be so exercised as not, in attaining a permissible end, unduly to infringe the protected freedom. 310 U.S. 303, 304, 60 S.Ct. 903.

This was the first case to apply the “clear and present danger doctrine” in the context of First Amendment freedoms of religion, vis-a-vis a “substantial interest of the state.” In this respect the Court said:

When clear and present danger of riot, disorder, interference with traffic upon the public streets, or other immediate threat to public safety, peace, or order, appears, the power of the state to prevent or punish is obvious. (Emphasis supplied) 310 U.S. 308, 60 S.Ct. 905.

The words of the late Chief Justice Hughes, writing for the Court in Cox v. State of New Hampshire, 312 U.S. 569, 61 S.Ct. 762, 85 L.Ed. 1049 (1941) are pertinent:

Civil liberties, as guaranteed by the Constitution, imply the existence of an organized society maintaining public order without which liberty itself would be lost in the excesses of unrestrained abuses. 312 U.S. 574, 61 S.Ct. 765.

In West Virginia State Board of Education v. Barnette, 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943), the Supreme Court had under consideration a resolution of a state board of education requiring that children, in public schools, salute the American Flag. Members of Jehovah’s Witnesses objected on the grounds that under their religious teachings the flag is an “image” within the prohibition of the commandment against graven images. In holding that the state could not validly enforce such a requirement the Court observed that First Amendment freedoms “are susceptible of restriction only to prevent grave and immediate danger to interests which the state may lawfully protect”. The Court said, inter alia:

If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion 319 U.S. 642, 63 S.Ct. 1187.

In Thomas v. Collins, 323 U.S. 516, 65 S.Ct. 315, 89 L.Ed. 430 (1945), the Court said of the First Amendment freedoms:

(A)ny attempt to restrict those liberties must be justified by clear public interest, threatened not doubtfully or remotely, but by clear and present danger. The rational connection between the remedy provided and the evil to be curbed, which in other contexts might support legislation against attack on due process grounds, will not suffice. These rights rest on firmer foundation. Accordingly, whatever occasion would restrain orderly discussion and persuasion, at appropriate time and place, must have clear support in public danger, actual or impending. Only the gravest abuses, endangering paramount interests, give occasion for permissible limitation. (Italics ours). 323 U.S. 530, 65 S.Ct. 322.

In Harden et al. v. State, supra, this Court was confronted with a challenge to the constitutionality of Chapter 89, Public Acts of 1947 (now § 39-2208, T.C.A.), on the basis of its alleged violation of the Freedom of Religion Clauses of the State and Federal Constitutions. After citing the belief-action dichotomy of Cantwell, supra, certain of the dicta in Reynolds, supra, and the “grave and immediate danger” doctrine of Barnette, supra, the Court said:

It is equally certain that this danger is grave and immediate when and wherever the practice is being indulged. 216 S.W.2d at 711.
They may believe without fear of any punishment that it is right to handle poisonous snakes while conducting religious services. But the right to practice that belief “is limited by other recognized powers, equally precious to mankind.” (Citation omitted). One of those equally as precious rights is that of society’s protection from a practice, religious or otherwise, which is dangerous to life and health. Id.

There cannot be any question that the Court acted upon acceptable legal principles and precedents in declaring the Tennessee Snake Handler’s Act constitutional in the face of an attack based upon the Freedom of Religion Clauses of the state and federal constitutions. This is not, however, to say that its application would necessarily be constitutional under all circumstances as is hereinafter pointed out. Harden simply holds that the statute does not violate the freedom of religion guarantees of the federal or state constitutions and that the defendants, under the factual situation of that particular case, had handled snakes “in such a manner as to endanger the life or health of any person”. Neighboring states having similar statutes have uniformly upheld and applied them.

Another relevant Tennessee case is Gaskin v. State, 490 S.W.2d 521 (Tenn.1973), wherein this Court held that the Tennessee statute (§ 52-1409, et seq., T.C.A.) relating to the manufacture of marijuana, as applied to the defendants, was not unconstitutional as an infringement of the right to the free exercise of religious faith. The Court relied upon Reynolds, supra, and Harden, supra, and recognized that the marijuana statutes were adopted to preserve public morals and safety.

A most significant post-Harden case is Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963) in which the Court’s ruling has been characterized as “a new test whereby the burden imposed on an individual because of a restriction on the free exercise of his religion is balanced against the state’s interest in controlling the individual’s practice of his religion.” The Court in Sherbert made it clear that the state’s interest must be more than rational or colorable in this highly sensitive constitutional area, and that “[o]nly the gravest abuses, endangering paramount interests, give occasion for permissible limitation.” 374 U.S. at 406, 83 S.Ct. at 1795. The Court outlined a two-stage approach, viz.: (1) whether the statute imposes a burden upon the free exercise of religion and (2) whether some compelling state interest justifies the infringement.

The most significant and relevant decision since this Court decided Harden, is Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972). Members of the Amish faith were convicted of violating Wisconsin’s compulsory school attendance law by refusing to send their children to school after they had graduated from the eighth grade. Attendance at high school is contrary to the Amish religious faith. The Court affirmed the Wisconsin Supreme Court, holding that their criminal convictions were invalid under the Free Exercise Clause of the First Amendment to the Constitution of the United States. It was stipulated that the defendants’ religious beliefs were sincere.

Apropos the case at bar is the following language from the opinion of the Court:

Although a determination of what is a “religious” belief or practice entitled to constitutional protection may present a most delicate question, the very concept of ordered liberty precludes allowing every person to make his own standards on matters of conduct in which society as a whole has important interests. 406 U.S. at 215, 216, 92 S.Ct. at 1533.
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Wisconsin concedes that under the Religion Clauses religious beliefs are absolutely free from the State’s control, but it argues that “actions,” even though religiously grounded, are outside the protection of the First Amendment. But our decisions have rejected the idea that religiously grounded conduct is always outside the protection of the Free Exercise Clause. It is true that activities of individuals, even when religiously based, are often subject to regulation by the States in the exercise of their undoubted power to promote the health, safety, and general welfare, or the Federal Government in the exercise of its delegated powers. (Citations omitted). But to agree that religiously grounded conduct must often be subject to the broad police power of the State is not to deny that there are areas of conduct protected by the Free Exercise Clause of the First Amendment and thus beyond the power of the State to control, even under regulations of general applicability. (Citations omitted). This case, therefore, does not become easier because respondents were convicted for their “actions” in refusing to send their children to the public high school; in this context belief and action cannot be neatly confined in logic-tight compartments. 406 U.S. at 219, 220, 92 S.Ct. at 1535.

The holding of Yoder is essentially that permitting the Amish to educate their children, after they have completed the eighth grade, in their own way and in deference to their established religious views, the statutory requirement to the contrary notwithstanding, would not impair the health of the children, nor result in their inability to be self-supporting or to discharge the duties and responsibilities of citizenship, nor in any way materially detract from the welfare of society. Therefore, the Court held that the state’s interest was not so compelling as to overrule the freedom of the Amish to pursue their established religious practice.

Respondent urges upon us that the “belief-action” dichotomy was expressly rejected by the Court in Yoder and apparently bases this insistence upon the above quoted language. What the Court actually rejected was the “idea that religiously grounded conduct is always outside the protection of the Free Exercise Clause.” The consistent holding of the courts has been that belief is always protected, but that conduct or action is subject to regulation in the manner and to the extent hereinabove set forth.

The opinion of the Court of Appeals, with respect to Harden, reasons that subsequent decisions of the Supreme Court of the United States “have removed the theoretical underpinnings on which the decision was based." The opinion recites:

The Harden decision was premised on the subsequently rejected belief-action dichotomy in free exercise cases, requiring merely a rational relationship between restrictions on religious conduct and the state interest served by the restrictions.

We respectfully differ with our brothers of the Court of Appeals. Without laboring the point, Harden was premised on belief-action, but to an equal if not greater extent upon the “clear and present” danger and “substantial interest” doctrine of Cantwell, supra.

We read nothing in Yoder that would fault the analytic approach of the Harden Court or cause us to reject its reasoning or results.

We hold that under the First Amendment to the Constitution of the United States and under the substantially stronger provisions of Article 1, Section 3 of the Constitution of Tennessee, a religious practice may be limited, curtailed or restrained to the point of outright prohibition, where it involves a clear and present danger to the interests of society; but the action of the state must be reasonable and reasonably dictated by the needs and demands of society as determined by the nature of the activity as balanced against societal interests. Essentially, therefore, the problem becomes one of a balancing of the interests between religious freedom and the preservation of the health, safety and morals of society. The scales must be weighed in favor of religious freedom, and yet the balance is delicate.

The right to the free exercise of religion is not absolute and unconditional. Nor is its sweep susceptible of discrete and concrete compartmentalization. It is perforce, of necessity, a vague and nebulous notion, defying the certainties of definition and the niceties of description. At some point the freedom of the individual must wane and the power, duty and interest of the state becomes compelling and dominant.

Certain guidelines do, however, emerge under both constitutions.

Free exercise of religion does not include the right to violate statutory law.

It does not include the right to commit or maintain a nuisance.

The fact that one acts from the promptings of religious beliefs does not immunize against lawless conduct.

But, again, the scales are always weighted in favor of free exercise and the state’s interest must be compelling; it must be substantial; the danger must be clear and present and so grave as to endanger paramount public interests.

We decide this controversy in the light of these objectives. In doing so we have not lost sight of the fact that snake handling is central to respondents’ faith. We recognize that to forbid snake handling is to remove the theological heart of the Holiness Church and this has prompted this Court to investigate and research this matter with meticulous care and to announce its decision through an unusually extensive opinion.

V.

We agree with the Court of Appeals that Tennessee’s snake handling statute (§ 39-2208 T.C.A.) is not controlling. However, it cannot be ignored. It proscribes, to some extent, the conduct with which we deal. The trial judge based his judgment, in part, upon its violation and, in a very real sense, it represents a part of the public policy of our state, as declared by the legislature.

This statute is not as comprehensive or as conclusive as is generally believed. Nor is it a model of clarity. In material particulars it makes it unlawful

(t)o display, exhibit, handle or use any poisonous or dangerous snake or reptile in such manner as to endanger the life or health of any person.

At a glance, it is self-evident that it does not forbid snake handling per se.

It condemns the manner and not the fact of snake handling.

Conversely it permits snake handling if done in a careful and prudent manner or, in the statutory terminology, under any circumstances or in any manner which does not endanger the life or health of any person.

Obviously, it was not intended to prevent zoologists or herpetologists from handling snakes or reptiles as a part of their professional pursuits, nor to preclude handling by those who do so as a hobby, nor those who are engaged in scientific or medical pursuits requiring the handling of snakes.

It is equally obvious that the phrase “any person” must mean any other person. If the Legislature had not so intended it would have placed a period at the end of the word reptile, leaving language which made it unlawful “to display, exhibit, handle or use any poisonous snake or reptile.” Not having done this one must logically assume that the Legislature was concerned with the manner and not the fact of snake handling, leaving the zoologist, the herpetologist or anyone else to their own devices subject only to the admonition that their handling must not be done “in such manner as to endanger the life or health of any (other) person.” But this is from a standpoint of criminal violations.

Convictions under this statute involve proof of two elements, viz.: (1) that poisonous or dangerous snakes or reptiles were handled and (2) in such manner as to endanger the life or health of any other person. These elements were obviously present in Harden.

The trial judge was in error in applying the restricted standard of the statute. This is not a criminal prosecution. Its consequences are more far-reaching and it is to be decided on a substantially different basis.

VI.

This is a suit to abate a nuisance.

The right of the District Attorney General to institute and-maintain such an action inheres in his office. It is his duty to investigate, prosecute and insure against all infractions of the public peace and all acts which are against the peace and dignity of the state.

We hold that the handling of snakes as a part of a religious ritual is a common law nuisance, wholly independent of any state statute.

In 58 Am.Jur.2d, Nuisances, § 7, a public nuisance is defined as follows:

It is a condition of things which is prejudicial to the health, comfort, safety, property, sense of decency, or morals of the citizens at large, resulting either from an act not warranted by law, or from neglect of a duty imposed by law.

In Yarbrough v. Louisville and Nashville Ry. Co., 11 Tenn.App. 456 (1930) a common law nuisance is defined as follows:

(a) nuisance in legal parlance, extends to everything that endangers life or health, gives offense to the senses, violates the laws of decency, or obstructs the reasonable or comportable use of property.

Under this record, showing as it does, the handling of snakes in a crowded church sanctuary, with virtually no safeguards, with children roaming about unattended, with the handlers so enraptured and entranced that they are in a virtual state of hysteria and acting under the compulsion of “anointment”, we would be derelict in our duty if we did not hold that respondents and their confederates have combined and conspired to commit a public nuisance and plan to continue to do so. • The human misery and loss of life at their “Homecoming” of April 7, 1970 is proof positive.

Our research confirms the general pattern.

Tennessee has the right to guard against the unnecessary creation of widows and orphans. Our state and nation have an interest in having a strong, healthy, robust, taxpaying citizenry capable of self-support and of bearing arms and adding to the resources and reserves of manpower. We, therefore, have a substantial and compelling state interest in the face of a clear and present danger so grave as to endanger paramount public interests.

It has been held that a state may compel polio shots, McCartney v. Austin, 57 Misc.2d 525, 293 N.Y.S.2d 188 (Sup.Ct.1968); may regulate child labor, Prince v. Massachusetts, 321 U.S. 158, 64 S.Ct. 438, 88 L.Ed. 645 (1944); may require compulsory chest x-rays, State ex rel. Holcomb v. Armstrong, 39 Wash.2d 860, 239 P.2d 545 (1955); may decree compulsory water fluoridation, Kraus v. City of Cleveland, 163 Ohio St. 559, 127 N.E.2d 609 (1955); may mandate vaccinations as a condition of school attendance, Wright v. Dewitt School District, 238 Ark. 906, 385 S.W.2d 644 (1965); and may compel medical care to a dying patient, Application of President and Directors of Georgetown College, Inc., 118 U.S.App.D.C. 80, 331 F.2d 1000 (1964).

This holding is in no sense dependent upon the way or manner in which snakes are handled since it is not based upon the snake handling statute. Irrespective of its import, we hold that those who publicly handle snakes in the presence of other persons and those, who are present aiding and abetting are guilty of creating and maintaining a public nuisance. Yes, the state has a right to protect a person from himself and to demand that he protect his own life.

Suicide is not specifically denounced as a crime under our statutes but was a crime at the common law. Tennessee adopted the Common Law as it existed at the time of the separation of the colonies. Dunn. v. Palermo, 522 S.W.2d 679 (Tenn.1975). An attempt to commit suicide is probably not an indictable offense under Tennessee law; however, such an attempt would constitute a grave public wrong, and we hold that the state has a compelling interest in protecting the life and promoting the health of its citizens.

Most assuredly the handling of poisonous snakes by untrained persons and the drinking of strychnine are not calculated to increase one’s life span.

VIII.

The trial judge enjoined the respondents from handling poisonous snakes or using deadly poisons in any church service in Cocke County but authorized the consumption of strychnine.

He erred.

The Court of Appeals modified the injunction so as to enjoin respondents from handling, displaying or exhibiting dangerous and poisonous snakes in such manner as will endanger the life or health of persons who do not consent to exposure to such danger.

There is no reason to restrict the injunction to the terms of the statute, nor is there any occasion for applying a “consenting adult” criterion.

On remand the trial judge will enter an injunction perpetually enjoining and restraining all parties respondent from handling, displaying or exhibiting dangerous and poisonous snakes or from consuming strychnine or any other poisonous substances, within the confines of the State of Tennessee.

At this time it is the view of this Court that no useful purpose would be served by punishing respondents for contempt of court.

We fully appreciate the fact that the decision we reach imposes stringent limitations upon the pursuit of a religious practice, a result we endeavored to avoid. After long and careful analysis of alternatives and lengthy deliberations on all aspects of this problem we reached the conclusion that paramount considerations of public policy precluded less stringent solutions. We gave consideration to limiting the prohibition to handling snakes in the presence of children, but rejected this approach because it conflicts with the parental right and duty to direct the religious training of his children. We considered the adoption of a “consenting adult” standard but, again, this practice is too fraught with danger to permit its pursuit in the frenzied atmosphere of an emotional church service, regardless of age or consent. We considered restricting attendance to members only, but this would destroy the evangelical mission of the church. We considered permitting only the handlers themselves to be present, but this frustrates the purpose of confirming the faith to non-believers and separates the pastor and leaders from the congregation. We could find no rational basis for limiting or restricting the practice, and could conceive of no alternative plan or procedure which would be palatable to the membership or permissible from a standpoint of compelling state interest. The very considerations which impel us to outright prohibition, would preclude fragmentation of the religious services or the pursuit of this practice on a limited basis.

This cause is remanded to the Circuit Court at Newport and will be retained on the active docket for the enforcement of the injunction and such other, further and additional actions and orders as may become necessary.

Reversed.

The costs are assessed against the petitioners.

FONES, C. J., and COOPER, BROCK and HARBISON, JJ., concurring.

      . Section 39-2208 reads as follows:

        Handling snakes so as to endanger life— Penalty. — It shall be unlawful for any person, or persons, to display, exhibit, handle or use any poisonous or dangerous snake or reptile in such a manner as to endanger the life or health of any person.
      Any person violating the provisions of this section shall be guilty of a misdemeanor and punished by a fine of not less than fifty dollars ($50.00) nor more than one hundred and fifty dollars ($150), or by confinement in jail not exceeding six (6) months, or by both such fine and imprisonment, in the discretion of the court.

      .The most common question that arises regarding ritual snake handling is the surprisingly small number of fatalities. L. M. Klauner, “the undoubted authority on the rattlesnake” writes that the fatalities from this cause (rattlesnake bite) for the entire United States, with a population of over 160 million, seldom exceed 30 per year. Of every 100 people bitten by rattlesnakes, only about 3 will die. W. LaBarre, They Shall Take up Serpents, pp. 13-14 (University of Minnesota Press 1962), (hereinafter referred to as LaBarre).

      . See Dorland’s Medical Dictionary; Sted-man’s Medical Dictionary.

      . For a graphic presentation of this meeting, designated as a “homecoming”, see Pelton and Carden, Snake Handlers (1974), (hereinafter referred to as Pelton and Carden).

      . The Dolly Pond Church of God With Signs Following. Collins, Tennessee Snake Handlers, page 1 (1947), (hereinafter referred to as Collins).

      . Ibid, p. 2.

      . Both the Old and New Testaments, however, contain language which would appear to be injunctions against snake handling and speaking in tongues. In Ecclesiastes (King James version) 10:11, it is said: “Surely the serpent will bite without enchantment, and a babbler is no better.” St. Paul warns the Corinthians, in his First Epistle (Ch. 10, Verse 9) “Neither let us tempt Christ, as some of them also tempted, and were destroyed of serpents.”

      . Hensley remained active in the ministry of the church for some forty-six years. He said he had been bitten four hundred times “till I’m speckled all over like a guinea hen.” (LaBarre, page 45) This founder and prophet of the church died, refusing medical attention, as a result of being bitten by a diamondback rattlesnake during a prayer meeting at Lester’s Shed near Altha, Florida, on Sunday night, July 24, 1955 (Ibid., page 48).

      . Ibid., page 29; E. Clark, The Small Sects in America, pages 23, 85 (Rev. ed. 1949).

      . This is a composite based upon: Collins, pages 4 & 5; LaBarre, pages 16 & 17; Callahan, Smoky Mountain Country, pages 91-95 (1952).

      . Pelton & Carden, page 22, 1974. See also pages 24 and 25.

      . Ibid.

      . LaBarre, page 23; The American Imagination at Work, Clough, page 156 (1947), containing an article by K. Kerman, Rattlesnake Religion, selected and edited by Leal-on N. Jones.

      . Pelton & Carden, page 32.

      . See Kirk v. Commonwealth, 186 Va. 839, 44 S.E.2d 409 (1947); Lawson v. Commonwealth, 291 Ky. 437, 164 S.W.2d 972 (1942); Hill v. State, 38 Ala.App. 404, 88 So.2d 880 (1956); State v. Massey, 229 N.C. 734, 51 $.E.2d 179 (1949).

      . 24 Vand.L.Rev. 810 (1971).

      . The public policy of the state is to be found in its constitution, statutes, judicial decisions and applicable rules of the common law. Home Beneficial Assn. v. White, 180 Tenn. 585, 177 S.W.2d 545 (1944).

      . See 40 Am.Jur.2d Homicide, Sec. 583.


source: Caselaw Access Project

author: BROCK, Justice.

license: Public Domain

text:
    Billy Joe SNELL, Appellant, v. Clifford P. BROTHERS, Jr., et al., Appellees.
    Supreme Court of Tennessee.
    Sept. 8, 1975.

      Charles Hampton White, Cornelius, Collins, Higgins & White, Nashville, for appellant.
    William T. Sellers, Smith & Sellers, Mur-freesboro, for appellees.
   OPINION

BROCK, Justice.

The issue in this case is whether the appellant schoolteacher has acquired tenure status under the Teacher Tenure Law, T.C.A. § 49-1401 et seq.

Mr. Billy Joe Snell was first employed by the Rutherford County Board of Education in August,' 1970, to teach English, science, and physical education and to coach basketball and baseball at Roekvale School. He continued in that position until the end of the 1971-72 school year. During the 1972-1973 academic year he taught boys’ physical education and coached golf and boys’ basketball at Riverdale High School in Rutherford County. His teaching salary that year was $7,750 with a $1,705 coaching supplement.

On April 5, 1973, Mr. Carl Buckner, principal of Riverdale High School, informed Snell that he was giving him a low performance evaluation and recommending to Mr. Clifford P. Brothers, Jr., Superintendent of Schools of Rutherford County, Tennessee, that Snell be dismissed or transferred. On the same day Snell met with Brothers, and on April 6 the Superintendent sent Snell a letter notifying him “as required by the T.C.A. 49-1306, ‘Continuing Contract,’ ” that his services would not be needed for the following school year. Brothers’ action was of no legal effect because it was not authorized by the Rutherford County Board of Education which did not consider the election of teachers for the 1973-74 school year until its meeting on April 26, 1973. At that meeting the Board voted to uphold the recommendation of Principal Buckner and Superintendent Brothers to terminate Snell’s employment. Brothers notified Snell of the Board’s action by letter dated April 27,1973. Subsequently Snell requested a hearing before the Board and was invited to attend their meeting on May 22, 1973; at that meeting the Board reaffirmed his discharge without charges as an untenured teacher, standing on their decision of April 26, 1973. In a letter to Brothers dated June 21, 1973, Buckner charged Snell with unprofessional conduct, inefficiency and incompetence and recommended his termination pursuant to the Teacher Tenure Law, T.C.A. § 49-1401 et seq. On July 18, 1973, Snell contacted Superintendent Brothers to ascertain his status as a schoolteacher in Rutherford County. Brothers responded with a letter on the same date advising him that his employment had been terminated because of the action of the Board on April 26,1973, and because of the June letter of Mr. Buckner, which he enclosed. The Board, however, has never taken any action on the charges in Buckner’s letter and continues to regard Snell as an untenured teacher.

Snell commenced an action in the Chancery Court of Rutherford County, Tennessee, in August, 1973, for reinstatement to his teaching and coaching position and monetary compensation for his wrongful termination. The Chancellor held that he was not entitled to reinstatement but allowed him $7,455 in damages. From the first holding Snell appeals.

The Teacher Tenure Law, T.C.A. § 49-1401 et seq., is designed to protect schoolteachers from arbitrary demotions and dismissals. State v. Yoakum, 201 Tenn. 180, 297 S.W.2d 635 (1956). A teacher who has permanent tenure can only be discharged for incompetence, inefficiency, neglect of duty, unprofessional conduct or insubordination. T.C.A. § 49-1412. He is entitled to written notice of the charges and to a hearing before the school board at which he may appear, present witnesses, and plead his cause in person or by counsel. T.C.A. § 49-1415 and 49-1416. The Statute also gives the teacher the right to judicial review. T.C.A. § 49-1417.

An untenured teacher, however, can be discharged without cause simply by written notice of dismissal or failure of reelection from the board of education. Such notice under the Teachers’, Continuing Contract Law must be received prior to April 15 to be effective for the next succeeding school year. T.C.A. § 49-1306. The Continuing Contract Law does not apply to teachers who have acquired permanent tenure status and they are not subject to reelection or dismissal under its provisions. T.C.A. § 49-1418.

The Rutherford County Board of Education did not comply with statutory procedure either for tenured or untenured teachers when it dismissed Snell. It missed the cut-off date of April 15 for notifying nontenured teachers of failure of reelection and it never purported to follow the procedure for dismissal of tenured teachers, T.C.A. § 49-1412 et seq. The only issue is the remedy. The Board contends that Snell had not attained permanent tenure status when it voted to terminate his services on April 26, 1973, and consequently he should only be awarded damages for breach of his employment contract for the 1973-74 school year. Snell, however, maintains that he did acquire permanent tenure prior to his purported termination and is therefore entitled to damages and reinstatement.'

The Teacher Tenure Statute establishes four prerequisites to the attainment of permanent tenure:

“49-1402. There shall be two (2) types of tenure for teachers now or hereafter employed in the public schools of Tennessee, as follows:
(1) 'Permanent tenure’ shall apply to any teacher who (a) has a degree from an approved four (4) year college, (b) holds a valid professional certificate based on not less than four (4) years college training covering the subjects or grades he is teaching, (c) has completed a probationary period of three (3) school years or not less than twenty-seven (27) months within the last five (5) year period, and the last year to be employed as a regular teacher, and (d) is reemployed by the board for service after the probationary period.”

The probationary period constitutes a “trial during which a teacher is under observation to determine his fitness for tenure status.” T.C.A. § 49-1401(6).

T.C.A. § 49-1403 provides:

“Any teacher, otherwise qualified for ‘permanent tenure’ status or ‘limited tenure’ status shall serve three (3) years or not less than twenty-seven (27) months within a five (5) year period as a probationary teacher before acquiring ‘permanent tenure’ status or ‘limited tenure’ status.
“Upon completion of the probationary period, any teacher who is reemployed or retained in the system is entitled to the tenure status for which she is qualified by college training and certification; provided that the superintendent shall notify the board prior to reelection by the board that the teacher, if reelected, will attain tenure status.”

The parties agree that Snell had the required college degree and professional certificate on April 26, 1973. The disputed questions are whether he had completed his probationary period on that date and had been “reemployed” or “retained in the system” so as to achieve permanent tenure status.

Of the first issue we agree with the Chancellor that Snell had completed his probationary period; the Chancellor reasoned that Snell had taught two full school years comprising twenty school months from 1970 to 1972 and had served the other seven months diming the 1972-73 school year. His conclusion is also supported by Brown v. Newman, 39 Tenn.App. 341, 282 S.W.2d 677 (1955) and Ryan v. Anderson, 481 S.W.2d 371 (Tenn.1972).

The second question is much more difficult. The Board contends that permanent tenure is not earned until the Board has had the opportunity to consider the teacher’s capabilities and performance and has taken positive action to reemploy him. Snell, relying on the Continuing Contract Law, T.C.A. § 49-1306, avers that the mere passage of time resulted in his reemployment and retention in the system. The relevant part of that Section provides:

“49-1306. Teachers in service and under control of the public elementary and high schools of Tennessee shall continue in such service until they have received written notice, from their board of education, of their dismissal or failure of reelection. Said notice must be received prior to April 15 to be applicable to the next succeeding school year; provided the board of education may transfer any teacher from one position to another at its option; provided that nothing contained in this section shall affect any rights that may have accrued, or may hereafter accrue, in behalf of any teach- • ers or principals in any local school system under any law providing a tenure of office for said teachers and principals.

It is well established that if the Board had voted to dismiss or not to reelect Snell and had sent him notice prior to April 15,1973, he would not have acquired tenure nor would he have had a cause of action for breach of his employment contract. Ryan v. Anderson, supra; Shannon v. Board of Education, 199 Tenn. 250, 286 S.W.2d 571 (1956); Brown v. Newman, supra. However, we have discovered no Tennessee case in which the Court has considered the effect on tenure rights of the failure to send such notice.

The Board maintains that statements in Ryan v. Anderson, supra, Shannon v. Board of Education, supra, and Stewart v. Lunsford, 207 Tenn. 33, 336 S.W.2d 20 (1960), support its position on this issue.

In Ryan v. Anderson, supra, the complainant was a teacher in Hawkins County who lost his permanent tenure status by failing to give proper notice of resignation when he accepted a postmastership in Persia, Tennessee. He subsequently returned to teaching and completed a second probationary period of twenty-seven months but was notified within the time prescribed by T.C.A. § 49-1306 that he had not been reelected by the school board for the following year. The Court concluded:

“While complainant was employed by the Hawkins County Board of Education for a sufficient length of time to complete the probationary period referred to in T.C.A. § 49-1402(l)(e), this fact alone does not establish that complainant has satisfied all of the requirements to attain permanent tenure status. Beyond any peradventure of doubt the record in the instant case discloses that complainant was not re-employed by the Hawkins County Board of Education after the probationary period. Under our statute complainant could not reacquire permanent tenure status in the Hawkins County School System until he was re-elected by the Board of Education.” (Citations omitted.) Id. 481 S.W.2d at 375.

In Shannon v. Board of Education, supra, the Court was faced with the question of whether the Teacher Tenure Law, T.C.A. 49-1401 et seq., should be applied retroactively, thus granting permanent tenure to most teachers already within the school system at the time of its enactment in 1951. In response to this issue the Court stated:

“But he had not acquired a tenure, permanent or otherwise, until he had served a probationary period of three years, and the school board had been given an opportunity to consider the question of his status as a permanent teacher. A liberal construction of the Tenure Act does not require the Court to hold that the legislative intent was to automatically confer tenure status upon all teachers and principals of schools with as much as three years’ service prior to the effective date of the Act, and without full knowledge of the said boards of education.
“We are furthermore of opinion that it was never the intention of the Legislature to deprive local school boards of their right, as well as responsibility, to determine the fitness of a teacher for tenure status.” Id. 286 S.W.2d at 575.

The Court concluded that the statute should be applied prospectively only and that all teachers would be required to complete a probationary period after its enactment so that local school boards would have a full opportunity to observe and evaluate their performance. Mr. Shannon did not satisfy the tenure requirements because in his third probationary year after the passage of the statute he received notice of his failure of reelection within the time allotted by T.C.A. § 49-1306. Despite the differences between the case at bar and the Shannon and Ryan cases we believe that the above quoted statements do imply that local school boards must take affirmative action in determining the fitness of teachers for tenure status.

In Stewart v. Lunsford, supra, Stewart was elected by popular vote to a four year term as Superintendent of Schools in Henderson County. He was defeated when he ran for a second term. Whereupon he applied for a teaching position in one of the county high schools, but was not elected by the board of education. Because superintendents are classed as teachers in the Teacher Tenure Act, Stewart argued that he had attained permanent tenure status by serving as superintendent for four years. The Court held, however, that he did not have tenure because he had not been “reemployed” by the board. The Court concluded:

“Thus it is clear that the purpose of the Legislature was not to make a teacher entitled as a matter of right to permanent tenure status after completing this probationary period unless he or she was retained or reelected to the position.” Id. 336 S.W.2d at 22.

Although Stewart technically completed his probationary period of three years or twenty-seven months he was never a conditional employee under observation by the board of education to determine his fitness as was Snell; the board never had the power to dismiss him because he was elected by popular vote. Nonetheless, we believe this case indicates that a teacher does not acquire permanent tenure status by mere passage of time.

We have concluded that Snell did not achieve permanent tenure status because the Board did not affirmatively act to reemploy him as required by T.C.A. § 49-1403. Its failure to notify him by April 15 that he had not been reelected resulted only in his contract being continued one more year under the Teachers Continuing Contract Law, T.C.A. § 49-1306; for breach of that contract he is entitled to damages.

We have considered respectable authority from other states which reached a contrary conclusion. See Robb v. School District, 28 Colo.App. 453, 475 P.2d 30 (1970); Whittington v. Barbour County Board of Education, 250 Ala. 692, 36 So.2d 83 (1948). But, we are convinced that our own statutes and court decisions dictate the result we have reached.

Accordingly, we affirm the decree of the Chancellor. All costs of this appeal will be taxed against the appellant, Billy Joe Snell.

FONES, C. J., and COOPER, HENRY and HARBISON, JJ., concur.


author: WILLIAM M. LEECH, Special Justice.

text:
    Stephen B. SWAIN, Petitioner, v. STATE of Tennessee, Respondent.
    Supreme Court of Tennessee.
    Sept. 15, 1975.
    Joel Kachinsky, Summertown, for petitioner.

      R. A. Ashley, Jr., Atty. Gen., R. Jackson Rose, Asst. Atty. Gen., Nashville, for respondent.
   OPINION

WILLIAM M. LEECH, Special Justice.

A petition for certiorari and supersedeas was filed by the defendant, Stephen B. Swain, hereinafter referred to as petitioner, to review the action of the Circuit Court for Bedford County, Tennessee, in denying petitioner bail pending an appeal from a conviction for selling phencyclidine, a controlled substance, in violation of Section 52-1432(a)(l).

The petitioner entered a plea of guilty to the above charged offense on March 28, 1975, and the judgment of the court was that he be confined in the state penitentiary for not less than three (3) nor more than three (3) years. On April 4, 1975, a motion for a new trial was filed on the grounds that the facts and circumstances surrounding the arrest indicated that there was a casual exchange of a small amount of a controlled substance among individuals and that the controlled substance was not possessed for the purpose of selling or otherwise dispensing in violation of Section 52-1432(a)(1) Tennessee Code Annotated. The motion for a new trial was denied, to which action of the trial judge in denying the motion for a new trial, petitioner excepted and prayed an appeal to the Court of Criminal Appeals, which was granted. Petitioner then moved to be allowed bail pending the appeal, which motion was denied because of the enactment by the Legislature of Chapter 734, Public Acts of 1974, which amended Section 40-3406 Tennessee Code Annotated by adding the following paragraph at the end thereof.

“Bail shall not be set by the trial court in cases arising out of conviction for violation of § 52-1432(a)(l) of Tennessee Code Annotated.”

The. assignment of error in the petition is as follows:

“The Court erred when it revoked bond and refused to set bail pending appeal, as the portions of sections 40-1204 and 40-3406 of Tennessee Code Annotated that deprive the trial judge of the power he has in all other felony convictions to admit bail violate the Fifth and Fourteenth Amendments of the United States Constitution which guarantee due process of law and equal protection of the laws.”

Prior to the enactment of Chapter 734, Acts of 1974, the setting of bail in felony cases was discretionary with the trial judge under Section 40-3406 Tennessee Code Annotated, and by the above assignment of error it is the theory of petitioner that the amendment of 1974 is class legislation and therefore violates the due process and equal protection guaranteed by both the Constitution of the United States and the State of Tennessee.

In Tennessee it has for many years been recognized that the constitutional guarantee of bail exists only for criminal defendants before conviction. See Butt v. State, 131 Tenn. 415, 175 S.W. 529 (1914); Hicks v. State, 179 Tenn. 601, 168 S.W.2d 781 (1943); Coins v. State, 192 Tenn. 32, 237 S.W.2d 8 (1950); State v. Newell, 216 Tenn. 284, 391 S.W.2d 667 (1965).

Likewise, there is no Federal guarantee of bail after conviction. See: United States, ex rel. Fink v. Heyd, 408 F.2d 7 (5th Cir. 1969); Sibron v. State of New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968).

The main thrust of the petition is that the 1974 Amendment to Section 40-3406 Tennessee Code Annotated is an unreasonable and arbitrary classification by depriving the trial judge of discretion in admitting to bail pending appeal those defendants convicted of violating Section 52-1432(a)(1) Tennessee Code Annotated, while allowing discretion in all other felony cases. The denial of bail under the Amendment applies to all defendants convicted of selling controlled substances, and is therefore uniform and equal to all persons falling within that class of offenders.

In Williamson v. Lee Optical of Oklahoma, 348 U.S. 483, 75 S.Ct. 461, 99 L.Ed. 563 (1955) the United States Supreme Court said:

“But the law need not be in every respect logically consistent with its aims to be constitutional. It is enough that there is an evil at hand for correction, and that it might be thought that the particular legislative measure was a rational way to correct it.
“The day is gone when this Court uses the Due Process Clause of the Fourteenth Amendment to strike down state laws, regulatory of business and industrial conditions, because they may be unwise, improvident, or out of harmony with a particular school of thought.”

The Court went further to say:

“The legislature may select one phase of one field and apply a remedy there, neglecting the others . . . The prohibition of the Equal Protection Clause goes no further than the invidious discrimination.”

The 1974 Amendment must be read in pari materia with Chapter 163, Public Acts of 1971, entitled. Tennessee Drug Control Law.

A defendant convicted of unlawful possession of heroin under New York Criminal Procedure Law, Section 530.50 cannot be admitted to bail. See Sibron v. New York, supra.

In Louisiana a defendant who is sentenced to five (5) years or more is ineligible to bail pending appeal. See Fink v. Heyde, supra.

In enacting the Drug Control Law of 1971, the Legislature no doubt considered the cause-and-effect relationship between drug pushing and the tremendous increase of all types of offenses against society. It has been held that engaging in narcotics traffic and a conviction for conspiracy to deal in and distribute heroin warrants a finding that the defendant is a “danger to the community”, see U. S. v. Erwing, 280 F.Supp. 814 (N.D.Cal.1968).

In Gaskin v. State, 490 S.W.2d 521 (Tenn.1972) this Court upheld the constitutionality of Chapter 163, Public Acts 1971 and on page 525 said:

“In, enacting the statute before us the General Assembly acted in the exercise of its police power to preserve the safety and morals of the public.”

The burden of showing that a statute is an unreasonable classification is on petitioner and if a reasonable basis exists for the classification, or if it is a fairly debatable question, the legislation will be upheld. See Estrin v. Moss, 221 Tenn. 657, 430 S.W.2d 345 (1968); Phillips v. State, 202 Tenn. 402, 304 S.W.2d 614 (1957).

The petition is denied. The costs are adjudged against petitioner, Stephen B. Swain.

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

FONES, C. J., not participating.


author: FONES, Chief Justice.

text:
    SERV-U-MART, INC., Appellant, v. SULLIVAN COUNTY, Tennessee, and Sullivan County Beverage Board, Appellees.
    Supreme Court of Tennessee.
    Sept. 15, 1975.

      Joe A. Tilson, Taylor, Inman & Tilson, Morristown, for appellant.
    Luther A. Icenhour, Jr., Icenhour, Wohl-ford & Miller, Bristol, for appellees.
   OPINION

FONES, Chief Justice.

After a final decree in the Chancery Court sustaining the action of the Sullivan County Beer Board revoking a beer permit because the location was within two thousand (2,000) feet of a school, appellant sought a new trial or amendment of the judgment. In support of the relief sought, appellant alleged new facts, to wit, that seven (7) other establishments were operating in violation of the two thousand (2,000) foot rule pursuant to permits that had not been revoked. Appellant alleged in its motion that such discriminatory application was declared impermissible in Sampson v. Roane County, an unreported decision of this Court released on December 3, 1973.

This case was heard in the Chancery Court on October 5, 1973, and the decree entered on December 11, 1973. Appellant alleges that Sampson was not available to the litigants or the court prior to the entry of the final decree. The action of the trial judge in overruling the motion for a new trial or in the alternative, to alter or amend judgment is the only question before us.

I.

The petition for the writ of certiorari filed in the Chancery Court seeking review of the action of the Beer Board alleges that appellant was issued a license on April 3, 1972, and that following a hearing on May 14,1973, its license was revoked on September 13, 1973, upon the sole ground that its location was within two thousand (2,000) feet of a school. The petition alleges that T.C.A. § 57-205 authorizes a county court or committee appointed by it the discretion of granting or denying permits for locations within two thousand (2,000) feet of schools, churches, or other places of public gathering. The petition alleges that the private act and the resolution of the county court of Sullivan County adopting same contains an absolute prohibition and takes away the discretionary power authorized by state law with respect to the two thousand (2,000) foot rule. Appellant asserted in their pleadings and upon the hearing that the rule, as adopted in Sullivan County was unconstitutional on the principle that a local law cannot supersede a general state law.

The only other issue raised in appellant’s petition to the Chancery Court was the assertion that its location was more than two thousand (2,000) feet if measured by the public road. Jones v. Sullivan County Beer Board, 200 Tenn. 301, 292 S.W.2d 185 (1956), established the rule that the measurement is made in a direct line. Appellant conceded in open court that Jones controlled that issue.

The learned Chancellor held in his decree of December 11, 1973, that the private act in question, chapter 554, Private Acts of 1935, ratified in July 1939 by the Sullivan County Court was a constitutional act prohibiting the sale of beer at a location within two thousand (2,000) feet of a church, school, etc., and upheld the revocation of appellant’s license. While appellant had argued that it was impossible to locate an establishment to sell beer that would not be within two thousand (2,000) feet of a public gathering place, no issue of discriminatory application based upon specific permits issued and in use was pled or presented and the Chancellor correctly decided the only issue before him at the hearing on the petition for certiorari.

In Sampson, the county had not adopted a two thousand (2,000) foot rule. Nevertheless, we agree that there can be no discriminatory application of a two thousand (2,000) foot rule before or after adoption of a resolution embracing the rule. The phrase, “in its discretion,” appearing in T.C.A. § 57-205 must be interpreted to mean that a county has a discretion as to whether or not a two thousand (2,000) foot prohibition will be adopted in the first instance. After adoption, a finding of discretionary application will invalidate the rule.

It is clear that the decision of this Court in Sampson prompted appellant to file a motion for a new trial or motion to alter or amend judgment. The motion alleges facts for which there was no foundation whatever in its petition for certiorari, and presents an issue not previously asserted.

The discovery of new evidence which could not have been previously discovered by due diligence may be the ground for a rehearing in Chancery, but such evidence must be pertinent to the issue raised by the pleadings. If new facts are discovered constituting a new issue not asserted at the trial, they may be brought before the Court by a supplemental bill in the nature of a bill of review, but again, only if the new proof could not possibly have been used at the trial. See Gibson, Suits in Chancery, fifth edition, § 1280 and § 1288. Appellant did not assert' in its motion that the proof sought to be adduced at the new trial was not available at the time of the hearing. And, by the nature of the facts themselves, it appears that such proof was available.

It is well settled in this state that a party cannot raise a new issue, or present a new line of proof, on motion for a new trial, that was not within the scope of the pleadings and was not presented to the court at the trial of the case. Heggie v. Hayes, 141 Tenn. 219, 208 S.W. 605 (1918); Tennessee Oil Company v. McCanless, 178 Tenn. 683, 162 S.W.2d 1081 (1941); Troxell v. State, 179 Tenn. 384, 166 S.W.2d 777 (1942).

II.

This appeal must be dismissed for an additional reason. Appellant’s assignment of error, brief and argument bypass the issue of whether or not it is entitled to a new trial and urges this court to decide the case on its merits by reversing the Chancellor’s decree of December 11, 1973, and ordering the restoration of its beer permit.

The posture of the case is such that we cannot reach the merits if we were disposed to hold the Chancellor in error for not granting a new trial, but appellant has no assignment of error that touches that issue.

Subsequent to the filing of its motion and prior to its presentation, appellant filed a written stipulation that in substance recited that seven (7) named permittees were operating at locations that violated the two thousand (2,000) foot rule. The learned Chancellor correctly refused to consider the stipulation but incorrectly refused to allow its inclusion in the bill of exceptions. Upon proper application this court directed that the stipulation be included in the bill of exceptions. Contrary to the apparent assumption of appellant, the stipulation is not conclusive on the issue of discriminatory application. Although de hors the record, Sullivan County asserts that it is in the process of bringing about uniform application of the rule.

We affirm the Chancery Court and dismiss the appeal, without prejudice to appellant’s right to apply for a beer permit, testing the question of discriminatory application of the two thousand (2,000) foot rule in Sullivan County. Costs are adjudged against the appellants.

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