text:
    STATE of Missouri, Respondent, v. Kenneth MALONE, Appellant.
    No. 40236.
    Missouri Court of Appeals, Eastern District, Division Three.
    June 5, 1979.
    Robert C. Babione, Public Defender, Charles H. Mostov, Asst. Public Defender, St. Louis, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, George A. Peach, Circuit Atty., St. Louis, for respondent.
   REINHARD, Presiding Judge.

Defendant Kenneth Malone appeals from a conviction by a jury for the offense of stealing property of the value of at least $50. Under the Second Offender Act, the court sentenced defendant to four years imprisonment.

On appeal, defendant raises one point: that there was not substantial evidence of value to warrant submitting to the jury the issue of stealing property of the value of at least $50.

The evidence showed that defendant and another stole two radio/cassette players from the Famous-Barr Warehouse store. Arnold Kreitman identified the stolen items as those sold by Famous-Barr. The items have no serial numbers, only model numbers. He produced a bill of lading which was admitted in evidence. The radio/cassette players were bought as part of merchandise bought in bulk group lots. The bill of lading indicated that the unit price was $38.86 each. It also showed a receiving date of March 19, 1976. On cross-examination, Kreitman stated that it was possible that these particular items could have been owned by the store before that date (they had been selling this particular radio for about four years), but the least they had ever paid for them was $34.52. He further admitted that in its Warehouse store Famous-Barr sold distressed merchandise, which is merchandise that had not moved at the regular stores. They also sold some damaged property, but such property was fully repaired before sale. There was no evidence that this was damaged property-

Defendant was charged with stealing two radio/cassette players with a combined value of at least $50. In order to find the defendant guilty of stealing property of a value of at least $50, Instruction No. 8 required a finding by the jury that the defendant had stolen both radio/cassette players and that this combined value was at least $50.

Evidence of the wholesale cost is relevant in determining fair market value. State v. Carter, 544 S.W.2d 334 (Mo.App.1976). Pointing to the buyer’s testimony that the items could have been purchased by Famous-Barr four years before the theft and that the buyer could not tell from his own knowledge whether they had been refurbished, the defendant contends that the state failed in its burden of proof as to value. We believe that the evidence was sufficient to sustain the state’s burden of proof as to the combined value being at least fifty dollars, and that the buyer’s testimony on cross-examination went to the weight of the testimony.

Affirmed.

GUNN and CRIST, JJ., concur.

      . The court instructed on the lesser and included offense of stealing property valued at less than $50.


source: Caselaw Access Project

author: BILLINGS, Judge.

license: Public Domain

text:
    STATE of Missouri, Plaintiff-Respondent, v. Kim DYER, Defendant-Appellant.
    No. 11087.
    Missouri Court of Appeals, Southern District, En Banc.
    June 7, 1979.
    John D. Ashcroft, Atty. Gen., Bruce E. Anderson, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    C. R. Rhoades, Neosho, for defendant-appellant.
   BILLINGS, Judge.

Defendant Kim Dyer was jury tried and convicted of the sale of a controlled substance, marijuana, and sentenced to a five year prison term. His sole point in this appeal is that the information was fatally defective because it did not identify the buyer of the marijuana. We affirm.

The information charged defendant did on October 21, 1977, “unlawfully and willfully and feloniously sell a controlled substance, to-wit: Marijuana, . . ” Trial evidence was that defendant sold an undercover officer, Richard Lee Bartley, Jr., alias “Lee Rupert” and “Professor”, a bag of marijuana for $10 on October 21, 1977. The jury rejected defendant’s alibi defense.

The sufficiency of an information in a narcotics case under § 195.020, V.A.M.S., was discussed in State v. Taylor, 375 S.W.2d 58 (Mo.1964). At page 63 the court said:

“Section 195.020, V.A.M.S. makes it unlawful for any person to sell any narcotic drug except as authorized by law. The gist of the offense is the sale of narcotics by an unauthorized person. It is an offense under § 195.020, V.A.M.S., to sell narcotics to any person. . . . While desirable it is not necessary to allege the name of the purchaser in a narcotics case brought under § 195.020, V.A.M.S. because the identity of the person to whom the sale is made does not constitute an essential element of the offense condemned by the statute.”

In the more recent case of Haynes v. State, 565 S.W.2d 191 (Mo.App.1978), defendant challenged the sufficiency of the indictment because it failed to charge him with the sale of marijuana to a person. The court held defendant’s complaint was frivolous, noting that the existence of a buyer is inherent in the word “sale” and the indictment stated the essential elements of the offense: a sale and a controlled substance.

The information here alleged a sale of a controlled substance and the omission of the name of the purchaser does not render it insufficient.

The judgment is affirmed.

All concur.


author: FONES, Justice.

text:
    William M. LEECH, Jr., Attorney General of Tennessee, et al., Appellants, v. AMERICAN BOOKSELLERS ASSOCIATION, INC., R. M. Mills Bookstore, Inc., Basin Corporation, d/b/a Middle Tennessee News Company: Association of American Publishers, Inc., National Association of College Stores, Inc., Tennessee Library Association, Appellees. William M. LEECH, Jr., Attorney General of Tennessee, et al., Appellants, v. PLAYHOUSE, INC., and Playgirl, Inc., Appellees.
    Supreme Court of Tennessee.
    May 7, 1979.

      C. Hayes Cooney, Chief Deputy Atty. Gen., Nashville, Larry E. Parrish, Sp. Asst, to Atty. Gen., Memphis, Peter H. Curry, Director of Law, Donald W. Jones, Metropolitan Atty., Dept, of Law of the Metropolitan Government of Nashville and Davidson County, Nashville, for appellants.

      William R. Willis, Jr., Willis & Knight, Alfred H. Knight, III, Willis & Knight, Nashville, Michael A. Bamberger, Finley, Kumble, Wagner, Heine & Underberg, New York City, for appellees in Davidson Chancery.
    Kemper B. Durand, Rosenfield, Borod, Bogatin & Kremer, P. C., Kenneth R. Shut-tleworth, Frierson M. Graves, Jr., Memphis, for appellees in Shelby Circuit.
   OPINION

FONES, Justice.

These eases challenged the constitutionality of the Tennessee Obscenity Act of 1978 by declaratory judgment actions instituted in the chancery court of Davidson County and the circuit court of Shelby County. The cases present two issues, the facial constitutionality of the Act and the application vel non of the doctrine of elision.

The Shelby County trial judge held the Act unconstitutional in its entirety, and the Davidson County chancellor held substantially all of the Act unconstitutional. We declare the entire Act void.

However, this does not leave Tennessee without a criminal obscenity law. An unconstitutional act that purports to supersede or repeal an existing law is ineffective to do so, since a void law has no force and effect. State v. Dixon, 530 S.W.2d 73, 74-75 (Tenn.1975), and cases cited therein. The result is that the prior obscenity law, 1974 Tenn.Pub.Acts, ch. 510, as amended, is in full force and effect.

I.

As a preface to our consideration of the constitutionality of the Tennessee Obscenity Act of 1978, a brief review of the tortured history of Supreme Court decisions dealing with the “intractable obscenity problem,” Interstate Circuit, Inc. v. City of Dallas, 390 U.S. 676, 704, 88 S.Ct. 1298, 20 L.Ed.2d 225 (Harlan, J., concurring and dissenting), is in order.

That history begins with the landmark cases of Roth v. United States and Alberts v. California, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957). Roth conducted a business in New York, the publication and sale of books, photographs and magazines. He was convicted of violating the federal obscenity statute prohibiting the mailing of obscene circulars and advertising of an obscene book.

Alberts conducted a mail order business from Los Angeles. He was convicted of violating a section of the California Penal Code prohibiting the keeping for sale of obscene and indecent books and with writing, composing and publishing an obscene advertisement of them.

The first issue the Court dealt with was whether obscenity is utterance within the area of protected speech and press, noting that this was the first time the question had been squarely presented under the first or fourteenth amendments, although the Court hastened to add that expressions could be found in numerous opinions indicating that it always had been assumed that obscenity was not protected by the first amendment.

In addressing this first issue the majority recognized that it had to deal with the fact that the first amendment is written in absolute terms:

“Congress shall make no law abridging the freedom of speech, or of the press .

Mr. Justice Brennan, writing for the majority, dealt with this problem by noting that in 1792, when ten of the fourteen states had ratified the Constitution, statutes in effect in those states gave no absolute protection for “every utterance”:

“Thirteen of the 14 States provided for the prosecution of libel, and all of those States made either blasphemy or profanity, or both, statutory crimes. As early as 1712, Massachusetts made it criminal to publish ‘any filthy, obscene, or profane song, pamphlet, libel or mock sermon’ in imitation or mimicking of religious services. (Citations omitted.)” 354 U.S. at 482-483, 77 S.Ct. at 1307.

The conclusion was then reached that in the light of this history it was apparent that the unconditional phrasing of the first amendment was not intended to protect every utterance. The majority noted that the absolute phrasing of the first amendment did not prevent the Court from concluding that libelous utterances were not constitutionally protected, citing Beauharnais v. Illinois, 343 U.S. 250, 72 S.Ct. 725, 96 L.Ed. 919 (1952).

The majority summarized the scope of the protection given speech and press in this way:

“All ideas having even the slightest redeeming social importance — unorthodox ideas, controversial ideas, even ideas hateful to the prevailing climate of opinion — have the full protection of the guaranties, unless excludable because they encroach upon the limited area of more important interests. But implicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance.” (Emphasis added.) 354 U.S. at 484, 77 S.Ct. at 1309.

The Court rejected the Hicklin test, which allowed material to be judged by the effect of an isolated excerpt upon particularly susceptible people and substituted in its place the following standard: “whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.” 354 U.S. at 489, 77 S.Ct. at 1311.

The Court approved jury instructions in the Roth case that contained the following:

“ ‘In other words, you determine its impact upon the average person in the community. . . . You judge the circulars, pictures and publications which have been put in evidence by present-day standards of the community. You may ask yourselves does it offend the common conscience of the community by present-day standards.’
[Y]ou alone are the exclusive judges of what the common conscience of the community is, and in determining that conscience you are to consider the community as a whole, young and old, educated and uneducated, the religious and the irreligious-men, women and children.” 354 U.S. at 490, 77 S.Ct. at 1312.

Chief Justice Warren concurred in the results reached by the majority but expressed reservations because the broad language used might eventually be applied to the arts and sciences and freedom of communication generally, and he was of the opinion that the decisions in Roth and Al-berts should be limited to the facts involved in those cases.

Mr. Justice Harlan concurred in Alberts but dissented in Roth. Dissenting in Roth, Mr. Justice Harlan said:

“I cannot agree that any book which tends to stir sexual impulses and lead to sexually impure thoughts necessarily is ‘utterly without redeeming social importance.’ Not only did this charge fail to measure up to the standards which I understand the Court to approve, but as far as I can see, much of the great literature of the world could lead to conviction under such a view of the statute. Moreover, in no event do I think that the limited federal interest in this area can extend to mere ‘thoughts.’ The Federal Government has no business, whether under the postal or commerce power, to bar the sale of books because they might lead to any kind of ‘thoughts.’
It is no answer to say, as the Court does, that obscenity is not protected speech. The point is that this statute, as here construed, defines obscenity so widely that it encompasses matters which might very well be protected speech. I do not think that the federal statute can be constitutionally construed to reach other than what the Government has termed as ‘hard-core’ pornography.” 354 U.S. at 507, 77 S.Ct. at 1320.

Mr. Justice Douglas wrote a dissenting opinion, in which Mr. Justice Black concurred. Mr. Justice Douglas was particularly critical of the standard of judging obscenity on the basis of whether or not it offends the common conscience of the community, during the course of which he made these observations:

“If experience in this field teaches anything, it is that ‘censorship of obscenity has almost always been both irrational and indiscriminate.’
The legality of a publication in this country should never be allowed to turn either on the purity of thought which it instills in the mind of the reader or on the degree to which it offends the community conscience. By either test the role of the censor is exalted, and society’s values in literary freedom are sacrificed.
For the test that suppresses a cheap tract today can suppress a literary gem tomorrow.” 354 U.S. at 512-14, 77 S.Ct. at 1324.

The next significant obscenity case decided by the Supreme Court was Kingsley Int’l Pictures Corp. v. Regents of N. Y. U., 360 U.S. 684, 79 S.Ct. 1362, 3 L.Ed.2d 1512 (1959). The issue in the case was whether or not a license to show the motion picture “Lady Chatterley’s Lover” could be denied under a New York statute authorizing the issuance of licenses for motion pictures “unless such film or a part thereof is obscene, indecent, immoral, . . The Court of Appeals of New York held that the Regents could validly deny the license to show “Lady Chatterley’s Lover,” finding the motion picture to be within the proscription of the statute “ ‘because its subject matter is adultery presented as being right and desirable for certain people under certain circumstances.’ ” Id. at 687, 79 S.Ct. at 1365, quoting from 4 N.Y.2d 349, 369, 175 N.Y.S.2d 39, 55, 151 N.E.2d 197, 208 (1958) (concurring opinion). The Supreme Court held that the action denied the exhibitor’s rights under the first amendment. Mr. Justice Stewart, writing for the majority, said:

“What New York has done, therefore, is to prevent the exhibition of a motion picture because that picture advocates an idea — that adultery under certain circumstances may be proper behavior. Yet the First Amendment’s basic guarantee is of freedom to advocate ideas. The State, quite simply, has thus struck at the very heart of constitutionally protected liberty.” 360 U.S. at 688, 79 S.Ct. at 1365.

It is perhaps significant to note that in this rather uncomplicated obscenity case there were six separate opinions. Justices Douglas and Black shared the view that prior censorship of motion pictures like pri- or censorship of newspapers and books violates the first and fourteenth amendments.

Mr. Justice Frankfurter wrote a separate opinion in which these significant observations were made:

“In short, there is an evil against which a State may constitutionally protect itself, whatever we may think about the questions of policy involved. The real problem is the formulation of constitutionally allowable safeguards which society may take against evil without impinging upon the necessary dependence of a free society upon the fullest scope of free expression. One cannot read the debates in the House of Commons and the House of Lords and not realize the difficulty of reconciling these conflicting interests, in the framing of legislation on the ends of which there was agreement, even for those who most generously espouse that freedom of expression without which all freedom gradually withers.
It is not our province to meet these recalcitrant problems of legislative drafting. Ours is the vital but very limited task of scrutinizing the work of the draftsmen in order to determine whether they have kept within the narrow limits of the kind of censorship which even D. H. Lawrence deemed necessary. The legislation must not be so vague, the language so loose, as to leave to those who have to apply it too wide a discretion for sweeping within its condemnation what is permissible expression as well as what society may permissibly prohibit.” (Emphasis added.) 360 U.S. at 694-95, 79 S.Ct. at 1368.

On June 22, 1964, the Supreme Court decided two obscenity cases, A Quantity of Copies of Books v. Kansas, 378 U.S. 205, 84 S.Ct. 1723, 12 L.Ed.2d 809 (1964), and Jacobellis v. Ohio, 378 U.S. 184, 84 S.Ct. 1676, 12 L.Ed.2d 793 (1964). Jacobellis involved a conviction for possession and exhibition of an allegedly obscene film, called “Les Am-ants” (“The Lovers”). Mr. Justice Brennan, writing the plurality opinion, said that the dispositive question was whether the state courts properly had found that the film was obscene and therefore not entitled to first and fourteenth amendment protection. The opinion renewed the Roth test, with some additional comments, and found that the motion picture was not obscene when tested by that standard. Mr. Justice Brennan conceded that the Roth test was not perfect but that any substitute would raise equally difficult problems. The following from the plurality opinion is significant to our inquiry:

“We would reiterate, however, our recognition in Roth that obscenity is excluded from the constitutional protection only because it is ‘utterly without redeeming social importance,’ and that ‘[t]he portrayal of sex, e. g., in art, literature and scientific works, is not itself sufficient reason to deny material the constitutional protection of freedom of speech and press.’ Id., 354 U.S., at 484, 487, 77 S.Ct., at 1310. It follows that material dealing with sex in a manner that advocates ideas, Kingsley Int’l Pictures Corp. v. Regents, 360 U.S. 684, 79 S.Ct. 1362, 3 L.Ed.2d 1512, or that has literary or scientific or artistic value or any other form of social importance, may not be branded as obscenity and denied the constitutional protection. Nor may the constitutional status of the material be made to turn on a ‘weighing’ of its social importance against its prurient appeal, for a work cannot be proscribed unless it is ‘utterly’ without social importance. (citations omitted). It should also be recognized that the Roth standard requires in the first instance a finding that the material ‘goes substantially beyond customary limits of candor in description or representation of such matters.’ ” 378 U.S. at 191, 84 S.Ct. at 1680.

Later in the plurality opinion, Mr. Justice Brennan said this:

“The Court has explicitly refused to tolerate a result whereby ‘the constitutional limits of free expression in the Nation would vary with state lines,’ Pennekamp v. Florida, supra, 328 U.S. 331, at 335, 66 S.Ct. 1029, at 1031, 90 L.Ed. 1295, we see even less justification for allowing such limits to vary with town or county lines. We thus reaffirm the position taken in Roth to the effect that the constitutional status of an allegedly obscene work must be determined on the basis of a national standard. It is, after all, a national Constitution we are expounding.
We recognize the legitimate and indeed exigent interest of States and localities throughout the Nation in preventing the dissemination of material deemed harmful to children. But that interest does not justify a total suppression of such material, the effect of which would be to ‘reduce the adult population ... to reading only what is fit for children.’ Butler v. Michigan, 352 U.S. 380, 383, 77 S.Ct. 524, 526, 1 L.Ed.2d 412. State and local authorities might well consider whether their objectives in this area would be better served by laws aimed specifically at preventing distribution of objectionable material to children, rather than at totally prohibiting its dissemination.” Id. at 194-95, 84 S.Ct. at 1682.

Justices Brennan, White, Goldberg and Stewart viewed the film, in the light of the record made in the trial court, and found it not to be obscene tested by the Roth standards. Justices Black and Douglas, following their previously announced policy that they would not engage in censorship, did not view the film, but concurred in the reversal.

The concurrence of Justices Black and Douglas was predicated on their consistent position that the first amendment freedom of speech and press is absolute and. extends to the exhibition of a motion picture.

In a separate concurring opinion, Mr. Justice Stewart said that he interpreted Roth and Alberts to mean that under the first and fourteenth amendments, criminal laws in this area were constitutionally limited to hardcore pornography. Mr. Justice Stewart then continued with his oft-quoted observation that:

“I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that.” Id. at 197, 84 S.Ct. at 1683.

Chief Justice Warren wrote a dissenting opinion, in which Mr. Justice Clark joined. Their dissent expressed the following view: The reference to community standards in Roth did not refer to a national standard; the fact that a community approach may well result in material being found obscene in one community and not in another does not require a national standard.

On March 21, 1966, the Supreme Court decided three obscenity cases, writing fourteen separate opinions. A Book Named “John Cleland’s Memoirs of a Woman of Pleasure” v. Attorney General of the Commonwealth of Massachusetts, 383 U.S. 413, 86 S.Ct. 975, 16 L.Ed.2d 1 (1966) (Memoirs v. Massachusetts); Ginzburg v. United States, 383 U.S. 463, 86 S.Ct. 969, 16 L.Ed.2d 31 (1966); and Mishkin v. New York, 383 U.S. 502, 86 S.Ct. 958, 16 L.Ed.2d 56 (1966).

The plurality opinion in Memoirs was written by Mr. Justice Brennan, joined by Chief Justice Warren and Mr. Justice For-tas. Memoirs was a civil equity suit brought by the Attorney General of Massachusetts directed against the book commonly known as “Fannie Hill.” The Supreme Judicial Court of Massachusetts purported to apply the three elements of the Roth definition of obscenity and reached the conclusion that all three were satisfied. However, in discussing the “social value” criterion the court said that the fact that the testimony indicated the book had some minimal literary value did not mean that it was of any social importance. The Massachusetts court said that it did not interpret the social value test as necessitating a finding that the material “must be unqualifiedly worthless” before it could be held obscene.

The Supreme Court’s plurality said that each of the three federal constitutional criteria must be applied independently and that the Massachusetts court had placed an erroneous interpretation upon the “utterly without redeeming social value” element, having declared the work obscene in the face of a finding that it possessed a modicum of social value.

In the years between Memoirs and Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), the Supreme Court followed a practice of summarily reversing obscenity convictions when five members of the Court, applying their separate tests, found the work to be protected by the first amendment. This procedure was known as the Redrup policy, and thirty-one cases were decided in that manner. See Miller, supra at 22 n. 3, 93 S.Ct. 2607. The footnote concludes with this statement:

“The Redrup (Redrup v. New York, 386 U.S. 767, 87 S.Ct. 1414, 18 L.Ed.2d 515) procedure has cast us in the role of an unreviewable board of censorship for the 50 States, subjectively judging each piece of material brought before us.” 413 U.S. at 22 n. 3, 93 S.Ct. at 2614 n. 3.

In Miller, the majority opinion, written by Chief Justice Burger, announced that the Court was undertaking the task of formulating “standards more concrete than those in the past” implicitly to terminate the unacceptable “Redrup procedure.” Drawing upon the principles in Roth and Memoirs, the Court enunciated three specific standards that departed from those decisions in two respects: (1) the serious literary, artistic, political, or scientific value test was substituted for the “utterly without redeeming social value” test of Memoirs and (2) the “contemporary community standards” test was substituted for Roth’s national standard test.

The Miller Court made it clear that the three standards are separate and independent issues that must be answered, in the affirmative, by the trier of fact, judge or jury, to support a finding that materials are obscene and unprotected by the first amendment. The standards are:

“(a) whether ‘the average person, applying contemporary community standards’ would find that the work, taken as a whole, appeals to the prurient interest, (citations omitted); (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.” 413 U.S. at 24, 93 S.Ct. at 2615.

The Miller majority evaluated its accomplishments in dealing with the on-going obscenity problem in this way:

“Under the holdings announced today, no one will be subject to prosecution for the sale or exposure of obscene materials unless these materials depict or describe patently offensive ‘hard core’ sexual conduct specifically defined by the regulating state law, as written or construed. We are satisfied that these specific prerequisites will provide fair notice to a dealer in such materials that his public and commercial activities may bring prosecution.” 413 U.S. at 27, 93 S.Ct. at 2616.

The most significant cases since Miller are Hamling v. United States, 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974); Smith v. United States, 431 U.S. 291, 97 S.Ct. 1756, 52 L.Ed.2d 324 (1977), and Pinkus v. United States, 436 U.S. 293, 98 S.Ct. 1808, 56 L.Ed.2d 293 (1978). These cases affirm the three standards of Miller, adding some clarification that will be alluded to in discussing specific sections of the Tennessee Act.

In short, the United States Supreme Court has struggled almost continuously for the past twenty-two years with the problem of establishing and refining a definition of obscene material, which is beyond the pro--tection of the first and fourteenth amendments and therefore subject to regulation and criminalization by the states. On June 21, 1973, a five-judge majority in Miller agreed upon a three-pronged test, which has survived the assaults levied in subsequent obscenity cases, by the same narrow margin. That basic three-prong test has been refined, by definition and explanation of some of the phrases therein, in Hamling, Smith and Pinkus in a continuing attempt to clarify the boundary line between protected speech and press and unprotected obscene material.

Mr. Justice Douglas, dissenting in Miller, said of the three-prong test: “Those are the standards we ourselves have written into the Constitution.” 413 U.S. at 39, 93 S.Ct. at 2623.

Although said in dissent, that was, and remains, an incontestable statement that now embraces the pronouncements in Hamling, Smith and Pinkus. It follows that any definition that is at variance with, or in any way expands, the meaning of obscene material, as it “has been written into the Constitution” by the Supreme Court, is constitutionally impermissible.

This Court is of the opinion that the Tennessee constitutional provision assuring protection of speech and press, Tenn.Const. art. I, § 19, should be construed to have a scope at least as broad as that afforded those freedoms by the first amendment of the United States Constitution.

It is settled constitutional law that state supreme courts may not restrict the protection afforded by the federal constitution, as interpreted by the United States Supreme Court, but they may expand constitutional protections, even where the state and federal constitutions contain similar or identical provisions.

Thus, this Court may interpret Article I, § 19, as granting absolute protection to speech and press and forbid any and all regulation of pornography in Tennessee. We have no inclination to do so. On the other hand, we cannot encroach one step farther than the United States Supreme Court in restricting speech and press, and therefore cannot give constitutional approval to any law expanding the standards for adjudicating obscenity, vel non, beyond the dictates of Miller and its progeny.

In addition to first amendment issues, the problem of vagueness pervades the Tennessee Act.

A criminal statute that forbids the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law. U.S.Const. amend. XIV; Tenn.Const. art. I, § 8.

In Winters v. New York, 333 U.S. 507, 68 S.Ct. 665, 92 L.Ed. 840 (1948), the Court, speaking through Mr. Justice Reed," said:

“It is settled that a statute so vague and indefinite, in form and as interpreted, as to permit within the scope of its language the punishment of incidents fairly within the protection of the guarantee of free speech is void, on its face, as contrary to the Fourteenth Amendment. Stromberg v. People of State of California, 283 U.S. 359, 369, 51 S.Ct. 532, 535, 75 L.Ed. 1117, 73 A.L.R. 1484; Herndon v. Lowry, 301 U.S. 242, 258, 57 S.Ct. 732, 739, 81 L.Ed. 1066. A failure of a statute limiting freedom of expression to give fair notice of what acts will be punished and such a statute’s inclusion of prohibitions against expressions, protected by the principles of the First Amendment violates an accused’s rights under procedural due process and freedom of speech or press.” 333 U.S. at 509-10, 68 S.Ct. at 667.

Mr. Justice Black, concurring and dissenting in Barenblatt v. United States, 360 U.S. 109, 79 S.Ct. 1081, 3 L.Ed.2d 1115 (1959), focused on the vagueness problem in a criminal statute in these words:

“It goes without saying that a law to be valid must be clear enough to make its commands understandable. For obvious reasons, the standard of certainty required in criminal statutes is more exacting than in noncriminal statutes. This is simply because it would be unthinkable to convict a man for violating a law he could not understand. This Court has recognized that the stricter standard is as much required in criminal contempt cases as in all other criminal cases, and has emphasized that the ‘vice of vagueness’ is especially pernicious where legislative power over an area involving speech, press, petition and assembly is involved.” (Citations omitted.) 360 U.S. at 137, 79 S.Ct. at 1099.

The Tennessee cases of Underwood v. State, 529 S.W.2d 45 (Tenn.1975), and Estrin v. Moss, 221 Tenn. 657, 430 S.W.2d 345 (1968), adhere to the principle that a statute so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application must be declared void for vagueness.

II.

The definition of obscene material in the Tennessee Act begins with the three basic guidelines laid down by the Supreme Court in Miller. T.C.A. § 39-3002(c). In subsequent subsections, words and phrases are lifted out of these guidelines and defined. The phrases (1) “average person,” (2) “contemporary community standards,” (3) “taken as a whole,” (4) “appeals to,” (5) “prurient interest,” (6) “sexual conduct depicted in a patently offensive way,” and the words (7) “unwholesome” and (8) “value” are defined with the result that the Tennessee definition of obscene materials expands the Miller guidelines by eight lengthy and unique definitions of terms found therein. T.C.A. § 39-3002(e), (f), (g), (h), (i), (j), (k) and (1).

A.

T.C.A. § 39-3002(e) provides:
“The phrase ‘average person’ means a hypothetical human being whose attitude represents a synthesis and composite of all of the various attitudes of all individuals, irrespective of age, in Tennessee society at large, which attitude is the result of human experience, understanding, development, culturalization, and socialization in Tennessee, taking into account relevant factors which affect and contribute to that attitude, limited to that which is personally acceptable, as opposed to, that which might merely be tolerated.”

Since Miller, the Supreme Court has rather explicitly explained the scope and meaning of the term “average person.”

In Hamling v. United States, supra, the Court said:

“A juror is entitled to draw on his own knowledge of the views of the average person in the community or vicinage from which he comes for making the required determination, just as he is entitled to draw on his knowledge of the propensities of a ‘reasonable’ person in other areas of the law.”
“This Court has emphasized on more than one occasion that a principal concern in requiring that a judgment be made on the basis of ‘contemporary community standards’ is to assure that the material is judged neither on the basis of each jur- or’s personal opinion, nor by its effect on a particularly sensitive or insensitive person or group.” 418 U.S. at 104-05, 107, 94 S.Ct. at 2091.

In Pinkus v. United States, supra, one of the issues dealt with was the alleged error of the trial court in giving the following charge:

“ ‘Thus the brochures, magazines and film are not to be judged on the basis of your personal opinion. Nor are they to be judged by their effect on a particularly sensitive or insensitive person or group in the community. You are to judge these materials by the standard of the hypothetical average person in the community, but in determining this average standard you must include the sensitive and the insensitive, in other words, you must include everyone in the community.’ (Emphasis added.)” 436 U.S. at 298-99, 98 S.Ct. at 1812.

In developing the theme that obscenity is to be judged according to the average person in the community, rather than the most prudish or the most tolerant, the Court said:

“[T]he community includes all adults who constitute it, and a jury can consider them all in determining relevant community standards.
But the term ‘average person’ as used in this charge means what it usually means, and is no less clear than ‘reasonable person’ used for generations in other contexts. (Citations omitted.) Cautionary instructions to avoid subjective personal and private views in determining community standards can do no more than tell the individual juror that in evaluating the hypothetical ‘average person’ he is to determine the collective view of the community, as best as it can be done.” 436 U.S. at 300-01, 98 S.Ct. at 1813.

The Tennessee Legislature has attempted to do far more through its definition of the “average person” than to say that he represents the collective view of the adult community.

First, the definition is not limited to adults, as it expressly includes “all individuals, irrespective of age.”

Again, in Pinkus the Court said:

“[W]e elect to take this occasion to make clear that children are not to be included for these purposes as part of the ‘community’ as that term relates to the ‘obscene materials’ . . .” 436 U.S. at 297, 98 S.Ct. at 1812.

The rationale for so holding was that it would tend to reduce the adult population to reacting to only what is fit for children, and the standard for judging obscenity vei non would reach a much lower “average” when children are part of the equation. Pinkus v. United States, supra, at 298, 98 S.Ct. 1808.

That portion of the definition is thus unconstitutionally restrictive of the freedom of speech and press, in all cases in which the intended recipients of the obscene materials at issue are adults. Tenn.Const. art. I, § 19; U.S.Const. amends. I, XIV.

Next, the definition limits the average person to one whose attitude is the result of “experience, understanding, development, culturalization [sic] and socialization in Tennessee.” (Emphasis added.) That definition would require the trier of fact to separate the “human experience, understanding, development,” etc., of the hypothetical average person occurring “in Tennessee” from those influences derived from sources outside Tennessee. Tennesseans do not live in isolation from the remainder of the world, even if they do not travel beyond state boundaries. Most, if not all, Tennessee communities and vicinages have adults residing therein (1) who were educated in our sister states or foreign lands, (2) who have traveled extensively and acquired foreign culture, or (3) who were born, developed, cultured and socialized in other states and foreign lands. But, the definition would require screening out those “foreign” influences, taking into consideration only that portion of their attitudes that resulted from experience, etc., in Tennessee.

While the Miller standards, as elaborated in Hamling, Smith and Pinkus permit limitation of community standards to the collective view of those adults residing in the state or vicinage, at the time of the alleged offense (“contemporary”), it is patently impermissible to attempt to localize the sources of stimuli, experience, etc., that contribute to one’s “attitude.” Obviously, as in the case of including children, the exclusion of all non-Tennessee influences on “attitude” would tend to reach a much lower “average” than if such a restriction was omitted and thus presents another constitutional infirmity.

Finally, the attitude of the hypothetical average person in Tennessee would be limited to that which is personally acceptable, totally rejecting that which might be tolerated. In applying both the (a) prurient interest and (b) patently offensive tests of Miller, the trier of fact must discard tolerance and judge a work solely on acceptance. Among the shades of meaning of the noun “acceptance” are “approval,” “favorable reception,” “agreement” and “assent.” The American Heritage Dictionary 7 (1969). The noun “tolerance” means “1. The capacity for or practice of allowing or respecting the nature, beliefs, or behavior of others. 2.a. Leeway for variation from a standard.” Id. at 1351.

In the course of discussing the prurient interest and patently offensive tests in Smith v. United States, supra, the Court said:

“[Contemporary community standards must be applied by juries in accordance with their own understanding of the tolerance of the average person in their community . . .” (Emphasis added.) 431 U.S. at 305, 97 S.Ct. at 1766.

It is obvious that the acceptance test would lead to the indiscriminate branding as obscene much of protected speech that would otherwise pass the tolerance test. As we have heretofore noted, we cannot encroach further upon the freedom of speech and press than the Miller standards permit, as a matter of federal constitutional law. Independent of the United States Constitution, the three infirmities that adhere in the Act’s definition of “average person” violate Article I, § 19, Tenn.Const., as impermissible encroachments on the freedom of speech and press.

B.

T.C.A. § 39-3002(f) states as follows:
“In the phrase ‘contemporary community standards,’ the word ‘contemporary’ means what was prevailing at the time of the offense charged; the words ‘community standards’ mean a belief or course of conduct relative to open general adult public exhibition and open general adult public dissemination among Tennessee citizens of portrayals, representations, descriptions, depictions, and live performances of sexual conduct deemed proper and appropriate and which is accepted in Tennessee society at large encompassing people in general existing in community with one another having interests common to humanity without regard to place of residence in this state.”

This subdefinition would require the trier of fact to judge the material on the basis of that which is deemed proper, appropriate and acceptable in Tennessee society. For the reasons discussed in section II-A of this opinion, this subsection violates Tenn.Const. art. I, § 19 and U.S.Const. amends. I, XIV.

C.

T.C.A. § 39-3002(g) defines as follows:

“ ‘Taken as a whole’ means considered as a single unit which is logically and structurally identifiable as a whole by or because of the sameness or commonality in its subject, or its theme, or its plot and plot development, or its story, or its message, or its ideas, or its thoughts, or its depiction, or its portrayal, provided: bound volumes, including but not limited to magazines or other periodicals, which contain miscellaneous articles, stories, poems, or other writings, illustrations, and photographic depictions, with each piece or portrayal standing on its own merit and having no content interdependence with other pieces bound together to make a single volume, may not be considered as a whole unless there is such interdependence of, between, or among the separate pieces that to remove any one of them materially would change the type, as opposed to the quality, of the volume as a magazine, periodical, or other publication or communicative medium; otherwise, each separate piece or pictorial or combination of them shall be separately taken as a whole.”

In Kois v. Wisconsin, 408 U.S. 229, 92 S.Ct. 2246, 33 L.Ed.2d 312 (1972), the issue was whether two photographs found to be obscene under a state statute were entitled to first and fourteenth amendment protection because they accompanied a newspaper article that clearly was entitled to freedom of speech and press immunity. The twofold test applied by the Court was (1) whether the photographs were “rationally related” to the article and (2) whether the article was “a mere vehicle for the publication” of the pictures. The second test was aptly illustrated by the following observation: “A quotation from Voltaire in the flyleaf of a book will not constitutionally redeem an otherwise obscene publication . . .” Id. at 231, 92 S.Ct. at 2246.

The “bound volume” portion of the definition replaces the “rationally related” test with a requirement that any “separate piece” must have “such interdependence that if removed, it would materially change “the type, as opposed to the quality” of the work, otherwise each separate piece “shall be separately taken as a whole.”

It is obvious that, in the case of most, if not all, newspapers, all other periodicals and all books except those developing a single plot are composed of “separate pieces” so lacking in interdependence that any “single unit” may be removed without materially changing the “type” of the publication. The result is that the Tennessee Act’s definition gives carte blanche authorization to “separately take[n] as a whole” a single picture or a “separate piece” of writing, and if standing alone it is obscene, then the trier of fact may condemn the entire bound volume, without applying the test of rational relationship of alleged obscene material to constitutionally protected speech and press.

The definition in T.C.A. § 39-3002 is in direct conflict with the “taken as a whole” concept, mandated in two of the Miller tests, an encroachment on the freedom of speech and press and is unconstitutional under Article I, § 19 of the Constitution of Tennessee and also impermissible under the first and fourteenth amendments of the federal constitution.

D.

T.C.A. § 39-3002(i) defines “prurient interest” as follows:

“The phrase ‘prurient interest’ means that quality inherent in all human beings which when aroused evokes feelings of shame, embarrassment, disgust, or revulsion or evidences mental, emotional or physical pathology, or is degrading in that it elicits unwholesome lusts, cravings, or longings.”

In Roth v. United States, supra, the Court said:

“However, sex and obscenity are not synonymous. Obscene material is material which deals with sex in a manner appealing to prurient interest.” 354 U.S. at 487, 77 S.Ct. at 1310.

Footnote twenty is quite lengthy, but the Court concluded by, in effect, approving the A.L.I. Model Penal Code definition of “obscenity,” which includes the definition of “prurient interest.”

“ ‘[A] thing is obscene, if, considered as a whole, its predominant appeal is to prurient interest, i. e., a shameful or morbid interest in nudity, sex, or excretion, and if it goes substantially beyond customary limits of candor in description or representation of such matters. . . . ’ ” 354 U.S. at 487 n. 20, 77 S.Ct. at 1310 n. 20 quoting A.L.I. Model Penal Code, § 207.10(2) (Tent.Draft No. 6, 1957).
In Miller, the Court said:
“[W]e now confine the permissible scope of such regulation to works which depict or describe sexual conduct. ... A state offense must also be limited to works which, taken as a whole, appeal to the prurient interest in sex, . . . .” 413 U.S. at 24, 93 S.Ct. at 2614.

The quotation above from Roth, ending with footnote twenty, was immediately followed by these comments by the Court:

“The portrayal of sex e. g., in art, literature and scientific works, is not itself sufficient reason to deny material the constitutional protection of freedom of speech and press. Sex, a great and mysterious motive force in human life, has indisputably been a subject of absorbing interest to mankind through the ages; it is one of the vital problems of human interest and public concern.” 354 U.S. at 487, 77 S.Ct. at 1310.

Thus, it is clear that the boundary line between portrayals of sex protected by the first amendment and unprotected obscene material is marked by the presence of “appeal to the prurient interest in sex,” which, in turn, is “a shameful or morbid interest in nudity, sex or excretion.” Any state definition of “prurient interest” at variance with or broader than the language of Roth and Miller is constitutionally infirm.

As Chancellor Brandt pointed out in his well-reasoned opinion, the Tennessee Act contains a three-pronged definition that “encompasses qualities and characteristics which exceed the concept of prurient interest as that term has been defined by the Supreme Court.” The definition assumes that all human beings have that inherent “quality” which when aroused evokes feelings that fall into one or more of three categories: (1) shame, embarrassment, disgust or revulsion, or (2) mental, emotional or physical pathology or (3) degrading because it elicits unwholesome lusts, cravings, or longings. By failing to include the essential element that the interest appealed to and aroused must be sex, the definition is overbroad and constitutionally infirm.

Also, as noted by Chancellor Brandt, the third category of aroused feelings would pass constitutional muster, if read alone and if limited to sex stimuli), and if the word “unwholesome” had not been vaguely and unintelligibly subdefined in T.C.A. § 39-3002(j). Subsection (j) defines “unwholesome” as:

“The word ‘unwholesome’ means that which, if continued, would present an obstacle or impairment to culturalization according to prevailing norms and mores in society, including, but not limited to, the removal of feelings of guilt in contravention of cultural teachings that guilt is the normal feeling providing inhibition which discourages similar performances under like circumstances.”

The most serious vagueness problem with that definition is that it is circumscribed by adherence to the “prevailing norms and mores in society.” Norms and mores are not subdefined, surprisingly, and it is generally true that every individual tends to regard his own views and behavior to be consistent with, and representative of, the norms and mores of society. A trier of fact in an obscenity ease could, therefore, be expected to replace the “collective view of the community” with his conception of the “norms and mores in society” in determining whether material appeals to the prurient interest. In addition, “in society” is geographically vague and ambiguous, suggesting to some national, or even international dimensions, but to others a more restricted circle.

In Baggett v. Bullitt, 377 U.S. 360, 84 S.Ct. 1316, 12 L.Ed.2d 377 (1964), the Supreme Court invalidated a loyalty oath on the ground of vagueness. Therein the Court said:

“The oath exacts a promise that the affi-ant will, . . . promote respect for the flag and the institutions of the United States and the State of Washington. . [W]hat are ‘institutions’ for the purposes of this oath? Is it every ‘practice, law, custom, etc., which is a material and persistent element in the life or culture of an organized social group’ . .? The oath may prevent a professor from criticizing his state judicial system or the Supreme Court or the institution of judicial review. Or it might be deemed to proscribe advocating the abolition, for example, of the Civil Rights Commission, the House Committee on Un-American Activities, or foreign aid.” 377 U.S. at 371, 84 S.Ct. at 1322.

We are of the opinion that the “norms and mores” in society are less ascertainable and identifiable than the “institutions” of the United States and the State of Washington. For the reasons stated, the definition of “unwholesome” is void under the state and federal constitutions.

E.

T.C.A. § 39-3002(7) provides this definition:

“ ‘Sexual conduct depicted in a patently offensive way’ means:
(1) Clearly visible or detailed written portrayal, representation, description, depiction, or live performance, irrespective of the actual visibility of the external or internal genitalia or pubic region, of human vaginal or anal sexual intercourse; fellatio; cunnilingus; analingus; oral or genital contact as a part of human male or female homosexual acts; manual or digital insertion into or fondling of the external or internal genitalia or pubic region, anus or rectal cavity; oral contact with the areola or nipple of female breasts as a part of or preparatory to other sexual activity here described; co-prophilia; urolagnia; masturbation; pedophilia; necrophilia; bestiality; sadistic sexual excitement; masochistic sexual excitement; sexual excitement by use of bondage or masks; or
(2) Clearly visible portrayal, representation, depiction or live performance which focuses on and tends to concentrate the attention of a viewer on the human external or internal genitalia, anus, rectal cavity, or the pubic region designed, irrespective of success in so doing, so as to stimulate unwholesome lustful thoughts, cravings, or desires.”

In Miller, the Court gave two express examples of how a state could define and proscribe portrayals of sex acts:

“(a) Patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated.
(b) Patently offensive representations or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals.” 413 U.S. at 25, 93 S.Ct. at 2615.

The problem with the Tennessee Act’s definition is that it clearly means that a detailed description of sex, in any context, is per se “patently offensive.” The result of that definition would be to eliminate from consideration by the trier of fact the issue of whether or not a description or portrayal, etc., of sex was or was not “patently offensive.” Thus, the definition nullifies the second prong of the Miller test. The Roth Court made it clear that the portrayal of sex in art, literature and scientific works is not, in and of itself, sufficient reason to deny first amendment protection to such material. 354 U.S. at 487, 77 S.Ct. 1304.

The definition of “patently offensive” is in direct conflict with Roth and Miller, encroaches upon federal and state freedom of speech and press guarantees and is constitutionally infirm.

F.

Subsection (k) of T.C.A. § 39-3002 defines “value” as follows:

“ ‘Value’ means that quality which makes a thing an essential part of the exposition of ideas and of more than a slight social interest as a step to truth and from which a benefit may be derived which is not clearly outweighed by the social interest in public order, public decency, and public morality.”

As noted heretofore, the Miller Court rejected, as a constitutional standard, the “utterly without redeeming social value” test adopted in 1966 in Memoirs v. Massachusetts, supra, and promulgated in its place the third standard, whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value. Elaborating upon the serious value test, later in the opinion, the Court said:

“At a minimum, prurient, patently offensive depiction or description of sexual conduct must have serious literary, artistic, political, or scientific value to merit First Amendment protection. See Kois v. Wisconsin, supra, 408 U.S., at 230-232, 92 S.Ct., at 2246-2247; Roth v. United States, supra, 354 U.S., at 487, 77 S.Ct., at 1310; Thornhill v. Alabama, 310 U.S. 88, 101-102, 60 S.Ct. 736, 743-744, 84 L.Ed. 1093 (1940). For example, medical books for the education of physicians and related personnel necessarily use graphic illustrations and descriptions of human anatomy. In resolving the inevitably sensitive questions of fact and law, we must continue to rely on the jury system, accompanied by the safeguards that judges, rules of evidence, presumption of innocence, and other protective features provide, as we do with rape, murder, and a host of other offenses against society and its individual members.” 413 U.S. at 26, 93 S.Ct. at 2616.

The Tennessee Act’s definition of “value” superimposes upon the third Miller test another three-prong test. The work (1) must be an essential part of the exposition of ideas and (2) must be of more than slight social interest as a step to truth and from which a benefit may be derived; if it passes those tests it (3) may be found to be “clearly outweighed by the social interest in public order, public decency, and public morality.”

First, the requirement that to have “value” a work must be “an essential part of the exposition of ideas” is void and unconstitutional for vagueness, and because it introduces a test not within the contemplation of Miller, it would expose material entitled to first amendment protection to indiscriminate condemnation. See Winters v. New York, supra; Underwood v. State, supra; Baggett v. Bullitt, supra. Its unconstitutionality is further confirmed by Kingsley Int’l Pictures Corp. v. Regents of N. Y. U., supra, quoted hereinafter.

Second, the requirement that to have value a work must be of more than slight social interest as a step to truth and from which a benefit may be derived suffers from the identical constitutional infirmities stated in the preceding paragraph.

Third, the introduction of the notion that a work that otherwise passes the value test may be “clearly outweighed by the social interest in public order, public decency, and public morality” must be constitutionally condemned for the reasons applicable to the preceding elements of the “value” definition. Additional authority mandating the invalidity of this part and part one of the “value” definition is provided by Kingsley Int’l Pictures Corp. v. Regents of N. Y. U., supra, and Papish v. University of Mo. Curators, 410 U.S. 667, 93 S.Ct. 1197, 35 L.Ed.2d 618 (1973) (per curiam).

In Kingsley the work at issue was the motion picture “Lady Chatterly’s Lover.” Dealing with one of the issues raised by the State, the Court said:

“It is contended that the State’s action was justified because the motion picture attractively portrays a relationship which is contrary to the moral standards, the religious precepts, and the legal code of its citizenry. This argument misconceives what it is that the Constitution protects. Its guarantee is not confined to the expression of ideas that are conventional or shared by a majority. It protects advocacy of the opinion that adultery may sometimes be proper, no less than advocacy of socialism or the single tax. And in the realm of ideas it protects expression which is eloquent no less than that which is unconvincing.” 360 U.S. at 688-89, 79 S.Ct. at 1365.

Papish v. University of Mo. Curators, supra, involved alleged indecent speech and an indecent cartoon in a college newspaper, wherein, after stating the principle that “state colleges and universities are not enclaves immune from the sweep of the First Amendment,” the Court said:

“[T]he mere dissemination of ideas — no matter how offensive to good taste-on a state university campus may not be shut off in the name alone of ‘conventions of decency.’ ” 410 U.S. at 670, 93 S.Ct. at 1199.

Thus all of the subdefinitions of the key words and phrases of the Miller standards are void for constitutional infirmities. We cannot assume that the general assembly would have enacted this legislation without those definitions, elide them and leave T.C.A. § 39-3002(c) and (d) as the Act’s definition of “obscene material.” But if that result were permissible under the doctrine of elision, those subsections do not specifically define “sexual conduct,” which is required by Miller. That definition was attempted in T.C.A. § 39-3002(7). It is void, and we cannot insert a Miller acceptable definition of sexual conduct in its place, for the reasons and upon the authorities discussed in section IV of this opinion. See Art Theater Guild, Inc. v. State ex rel. Rhodes, 510 S.W.2d 258 (Tenn.1974) and Wheeler v. Maryland, 281 Md. 593, 380 A.2d 1052 (1977).

III.

Next, we consider the constitutionality of classifying those subject to the criminal penalties of the Act as “a person, corporation or any other taxable entity,” but excluding “natural persons acting as agents of a non-taxable entity.”

The State’s assignment of error, contesting the lower court’s ruling that the classification was unconstitutional for vagueness and denial of equal protection of the law, begins by insisting upon application of the rule that where there are several possible interpretations of a statute, one of which would preserve its constitutionality, that interpretation will be adopted by the Court. The State attempts to explain how simple it is to arrive at an interpretation that will save the Act as follows:

Use of the suffix ‘able’ normally has reference to whether a thing is possible or impossible. If a car is repairable, it can be fixed. On the other hand, if a car is irrepairable, it is impossible to fix it. If terrain is traversable, it is possible to traverse it. If terrain is untraversable, it is impossible to traverse it. Thusly, if an entity is taxable, it is possible to tax it. If it is non-taxable, it is impossible to tax it. It is that simple.
To determine whether it is possible to tax an entity, one must simply refer to the prevailing law or the Constitution. For instance, under prevailing jurisprudence, it simply is impossible for any state government to tax the federal government. Likewise, under current law, the state cannot tax itself. Under prevailing law, established religions may not be taxed. And, the federal government cannot tax state governments. As, and if, prevailing law changes so that what formerly was taxable becomes nontaxable or vice versus, those included in one classification or another may change; however, that fact is inconsequential in determining whether, at any given time, an entity is or is not taxable. But, whether an entity is or is not taxable is not definitionally vague. It is at all times a determinable fact, it is always knowable, i. e., able to be known, and not unknowable, i. e., unable to be known.”

Thus we are told that reference to the constitution and the prevailing law will reveal the entities that it is impossible to tax and that will identify the classification of non-taxable entities.

Article II, § 28, Tenn.Const. (Supp. I 1978) reads in part as follows:

“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, . . .

The constitutionally authorized exemptions to the State, counties and municipalities and to religious, charitable, scientific and educational institutions have been implemented by legislation. T.C.A. § 67-501 and T.C.A. § 67-513. However, it is not impossible to tax any of those exempt institutions because they are only exempt, in the case of the state and its political subdivision, to the extent that the properties are “used exclusively for public, county or municipal purposes. . . .” (T.C.A. § 67-501), and, in the case of religious, charitable, scientific and educational institutions, to the extent that the properties are “occupied and used . . . purely and exclusively . ... for the purposes for which [the] institution was created . . . .” (T.C.A. § 67-513 Supp. XII 1978).

The State says that, under prevailing law, established religions may not be taxed.

The landmark ease of Book Agents of Methodist Episcopal Church, S. v. State Bd. of Equalization, 513 S.W.2d 514 (Tenn.1974) compels a different conclusion. Three cases were consolidated for decision. The parties, insofar as relevant here, were Book Agents of the Methodist Episcopal Church and the Sunday School Board of the Southern Baptist Convention, each of said entities being a Tennessee nonprofit, general welfare corporation. The principal issue was whether or not those corporations owned, occupied and used their respective publishing operations in a manner that entitled each of the entities to the exemption provided in Article II, § 28, Tenn.Const. and T.C.A. § 67-502(2), presently codified as § 67-513. The exemption sought by the Methodist and Baptist entities was available if the properties in question were held and used purely, or exclusively, for religious, charitable, scientific, literary or educational purposes. The evidence was that the Methodist and Baptist entities printed, published and sold secular literature, in addition to religious literature, and printed for some purely commercial operators. The majority of the Court held that the ad valorem property tax could be imposed on the printing press properties of the respective entities, prorated on the basis of the ratio of earnings derived from religious literature to total earnings, including secular literature. Thus, the State was authorized by this Court to tax a percentage of the printing and publishing properties of established religions, but at the same time leaving a percentage of their properties exempt from taxation. The unanswerable question posed by the Tennessee Obscenity Act of 1978 is whether the Methodist and Baptist entities, and their agents that are engaged in the printing, publishing and selling of books, an operation directly exposed to the Act, are subject thereto or exempt therefrom.

Vanderbilt Univ. v. Ferguson, 554 S.W.2d 128 (Tenn.Ct.App.1977), involved the issue of whether a parking lot provided for the faculty and staff of the Vanderbilt Medical Center was exempt from ad valorem taxation, by virtue of ownership and use, purely and exclusively, for religious, charitable, scientific or educational purposes. The first paragraph of the Court of Appeals opinion reflected that Vanderbilt University had a public parking lot adjacent to the property involved in the litigation, which it conceded was taxable. Thus we know that Vanderbilt University is a taxable — nontaxable entity. This presents another example of an entity whose librarians and other agents are exposed to the coverage of the Act, and the question of whether they are subject to its penalties or exempt therefrom is impossible to answer.

LaManna v. Electrical Workers Local 474, 518 S.W.2d 348 (Tenn.1974), presented a similar question of tax exemption. The decision reflects that a portion of the union’s property is exempt from taxation and a portion is taxable.

It is likely that Vanderbilt University, the University of the South at Sewanee and most of the private educational schools, colleges and universities in this State have properties and conduct activities that are taxable, and, at the same time, own and use other properties that are nontaxable. The same is true of many types of general welfare organizations, unions, trade and business associations, clubs and fraternal organizations. Many such organizations engage in educational and instructional activities, have libraries and publish newsletters and other periodicals.

We are convinced that all religious, charitable, scientific, educational and the many privately organized general welfare corporations that are created, in whole or in part, for religious, etc., purposes, would claim to be nontaxable entities, exempt from the Tennessee Obscenity Act of 1978, whether they pay taxes or not. But many, such as Vanderbilt University and the Methodist and Baptist Publishing entities, cannot legally sustain the burden of proving they are nontaxable entities. This is particularly true if the contention of the State is correct that the test is—“if it is non-taxable it is impossible to tax it. It is that simple.”

Parenthetically, we find it unnecessary and redundant to pursue the legal potentiality of State, county and municipal properties being taxed, if not used exclusively for public purposes, and the resultant effect on nontaxable entity status. Nor is it necessary to delve into the vagueness problems presented by the other forms of taxation, such as sales and income taxes, etc., and the exemptions involved therein.

Two conclusions are inescapable. First, the use of taxable entity for inclusion and nontaxable entity for exclusion is too nebulous, too lacking in definite limits, and too vague to inform men of common intelligence who is included and who is exempt from the criminal penalties of the Tennessee Obscenity Act. Winters v. New York, supra, Underwood v. State, supra, Barenblatt v. United States, supra (Black, J., concurring and dissenting). T.C.A. § 39-3003 is therefore void under the Due Process Clause, Tenn.Const. art. I, § 8 and the U.S. Const, amend. XIV.

Second, if “nontaxable entity” could be construed to exempt those religious, charitable, scientific or educational general welfare corporations that pay no taxes and include those who pay any taxes, however small, the classification would have no rational basis in the context of the criminal offense involved herein and would be void under the Equal Protection Clause of the federal and state constitutions. U.S. Const, amend. XIV; Tenn.Const. art. I, § 8. In an analogous situation, the Maryland Court of last resort so held. In Wheeler v. Maryland, supra, the Court declared that State’s obscenity law unconstitutional upon the contention of Wheeler, a bookstore employee convicted of violating the Act, that the Act’s exemption of motion picture employees violated the Equal Protection Clause. The Maryland Court found no rational relationship to a legitimate governmental interest in subjecting to prosecution employees of bookstores and all other dispensers of obscenity, but exempting those employees of motion picture theaters who might exhibit obscene material.

IV.

Having found that the sections that define the criminal offense that is the subject of the entire Act void and the section that identifies and classifies those who are subject to and exempt from its criminal penalties void, we have a criminal act with no legally cognizable offense and no identifiable parties to charge. It follows that the Tennessee Obscenity Act of 1978, 1978 Tenn.Pub. Acts, chs. 846, 920, is void and of no force and effect.

In these circumstances, application of the doctrine of elision is manifestly inappropriate. In Art Theater Guild, Inc. v. State ex rel. Rhodes, supra, this Court declared the obscenity definition applicable to that case (T.C.A. § 39-3007) unconstitutional because it did not comply with the definition in Miller v. California, supra. Responding to the State’s contention that this Court should simply conform the statute to Miller, rather than hold it unconstitutional, the Court said:

“[W]e fail to find any basis for doing anything other than holding T.C.A. § 39-3007 unconstitutional and leaving it to the legislature to adopt a new obscenity statute which fully complies with all the requisites of Miller v. California, supra. Moreover, for this Court to do anything more would have the effect of our rewriting Tennessee’s present obscenity statute. The function of this Court is to interpret a statute against the constitution of this State and that of the United States and we will not and cannot usurp the prerogatives of the legislature by supplying essential elements to a statute which have been omitted by that body.” 510 S.W.2d at 261.

In addition to the same constitutional defect that we found in Art Theater Guild, this Court would be required to insert affirmatively into the Act, by judicial decree, a provision designating those persons, firms and corporations within the prohibition of the Act and identifying those to be exempt. The Legislature obviously intended that some persons, firms and corporations should be exempt, and we cannot assume they would have enacted this legislation if the class they had in mind could not be excluded. We cannot identify that class and it would be an encroachment on legislative prerogatives not authorized by the elision doctrine to insert it into the Act, if indeed, we could divine its identity. The severability clause is a mere aid to interpretation and does not alter the force of the rationale that compels the result reached. See Wheeler v. Maryland, supra.

A decree will be entered in this Court declaring the Act void. Costs are adjudged against the State of Tennessee.

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


author: SUMMERS, Judge.

text:
    TOPS BAR-B-Q, INC., Plaintiff-Appellee, v. Richard STRINGER, Individually and d/b/a Richard’s Nursery and Landscape, Defendant-Appellant.
    Court of Appeals of Tennessee, Western Section.
    Dec. 20, 1977.
    Certiorari Denied by Supreme Court April 10, 1978.

      Wilburt J. Chiapella, Memphis, for defendant-appellant.
    Marx J. Borod, Ronald S. Borod, Albert C. Burnham, Memphis, for plaintiff-appel-lee.
   SUMMERS, Judge.

Appellee-plaintiff, Tops Bar-B-Q, Inc., sued appellant-defendant, Richard Stringer, individually and d/b/a Richard’s Nursery and Landscape, to enjoin trespass and for damages caused by the trespass. The court found for the plaintiff, granted an injunction against further trespass and referred the matter to a special master for a determination of damages.

After taking testimony the master found damages for the plaintiff in the amount of $13,965.00. Defendant filed exceptions to the master’s report. The court overruled all exceptions and approved the master’s report in toto. Defendant appeals from the amount of damages awarded to the plaintiff.

Defendant sought, through a motion to this court, a diminution of the record or to have the exhibits introduced at the hearing before the master sent back for certification by the clerk and master. Plaintiff responded by asking that defendant’s motion be denied and that the testimony and proof not included in a bill of exceptions be removed and excluded from the appellate record. Defendant then asked that plaintiff’s motion to strike be denied. Plaintiff filed a supplemental brief in support of his motion to strike testimony from the appellate record. Following the above sequence of legal efforts the defendant presented the following motion to this court on June 20, 1977:

APPELLANT’S AMENDED AND SUPPLEMENTAL RESPONSE TO AP-PELLEE’S MOTION TO STRIKE TESTIMONY FROM APPELLATE RECORD

Comes the appellant, Richard Stringer, and for amended and supplemental response joins in and consents to appellee’s said motion to strike from the appellate record the testimony given before the Master and the Exhibits introduced thereat, and hereby consents to the entry of an order so providing.

CHIAPELLA & PARISH

By /s/ Wilburt J. Chiapella

To the above stated motion, the court entered the following order:

ORDER

On acknowledgement in open court by counsel for the appellant that it does not insist upon its motion for diminution of the record, the motion is overruled.

Enter: September 7, 1977

/s/ Matherne, P. J.

/s/ Nearn, J.

/s/ Inman, Spec. J.

On appeal the defendant raises four assignments of error. Assignment one recites that there is no material legal evidence to support the judgment. In the matter at bar the defendant has consented to strike from the appellate record the testimony given before the master and the exhibits introduced therewith. With nothing before us but the technical record containing the master’s report which the chancellor has approved in toto, we must presume there was material legal evidence to support the judgment. Meadows v. Boylin, 497 S.W.2d 580 (Tenn.App.1972); Schmidt v. Schmidt, 498 S.W.2d 720 (Tenn.1973); Cope v. Hembree, 487 S.W.2d 647 (Tenn.1972).

Therefore, the first assignment is hereby overruled.

Assignment two alleges the judgment is contrary to law. This assignment is too general and will not be considered by this court. Pulaski Rubber Company v. Rolin, 481 S.W.2d 869 (Tenn.1972); City of Nashville v. State Board of Equalization etc. et al., 50 Tenn.App. 692, 363 S.W.2d 520 (1962); General Motors Corporation v. Dodson, 47 Tenn.App. 438, 338 S.W.2d 655 (1960); and Lasater Lumber Company et al. v. Harding, 28 Tenn.App. 296, 189 S.W.2d 583 (1945).

Therefore, assignment two is overruled.

Defendant filed two additional assignments of error. Assignment three states the report of the master and the concurring decree of the chancellor are based on an erroneous assumption of law, and assignment four states that the report of the master and the concurring decree of the court went beyond the scope of the pleadings and the prayer for relief.

Plaintiff contends that the concurrent finding by the master and the chancellor of the amount of damages is binding. In Black v. Love and Amos Coal Company, 30 Tenn.App. 377, 206 S.W.2d 432 (1947), we find the well-settled law of this state.

A concurrence of the Master and the Chancellor is conclusive on appeal fCode, Sec. 10620) except (1) where it is upon an issue not proper to be referred (State ex rel. v. Bolt, 130 Tenn. 212, 169 S.W. 761); (2) where it is based on an error of law (Hord v. Holston River Railroad, 122 Tenn. 399, 123 S.W. 637, 19 Ann.Cas. 331, 135 Am.St.Rep. 878); (3) where it is upon a question of law or mixed fact and law (Dale v. Hartman, 157 Tenn. 60, 6 S.W.2d 319); or (4) where it is not supported by any material evidence (Code, Sec. 10620).

There is also a well-settled doctrine in this state that a party on appeal will not be permitted to depart from the theory on which the case was tried in the lower court. Issues not raised or complained of in the trial court will not be considered on appeal. McCandless v. Oak Contractors, Inc., 546 S.W.2d 592 (Tenn.App.1976); Speight v. Gibbs, 486 S.W.2d 922 (Tenn.App.1972); Brookside Mills, Inc. v. Moulton, 55 Tenn.App. 643, 404 S.W.2d 258 (1965); Nashville Gas & Heating Co. v. Phillips, 17 Tenn.App. 648, 69 S.W.2d 914 (1934); and Edington v. City of Memphis, 152 Tenn. 152, 274 S.W. 548 (1925).

The issues relied upon in the third and fourth assignments of error were not raised in the exceptions to the master’s report. The defendant did not object to the award of lost profits based on gross as opposed to net profits or that the findings went beyond the scope of the pleadings. These theories were brought up for the first time on appeal. Therefore, assignments three and four must respectfully be overruled.

The judgment of the trial court is affirmed, and the defendant will be taxed with the costs on this appeal.

MATHERNE and NEARN, JJ., concur.


text:
    James D. RANSOM v. Anthony GRUBBS and Louise Grubbs.
    Court of Appeals of Tennessee, Western Section.
    March 9, 1978.
    Certiorari Denied by Supreme Court May 15, 1978.

      C. W. Miles, III, Union City, James H. Warren, Fulton, Ky., for plaintiff-appellant.
    Lloyd S. Adams, Jr., Humboldt, for defendants-appellees.
   SUMMERS, Judge.

James D. Ransom, plaintiff-appellant, sued Anthony Grubbs and Louise Grubbs, defendants-appellees, in the Obion County Circuit Court for personal injuries sustained when he fell and was injured on defendants’ property.

Defendants made a motion for a directed verdict which was overruled, and the case went to the jury. The jury was unable to agree on a verdict, and a mistrial was declared. The defendants then renewed their motion for a directed verdict, and the motion was sustained. (Rule 50.02 TRCP)

Plaintiff appealed and assigned as error: The Trial Court erred in setting aside the Order of Mistrial and in directing a verdict for the defendants in accordance with their Motion for a Directed Verdict made at the conclusion of all the proof.

Vaughn v. Shelton, Tenn.App., 514 S.W.2d 870 (1974), and Ridley v. Spence, Tenn.App., 456 S.W.2d 846 (1970), set the guidelines for a judge to follow in deciding if a directed verdict is proper.

“The rule for determining a motion for directed verdict requires the trial Judge and the reviewing Court on appeal to look to all the evidence, to take the strongest legitimate view of it in favor of the opponent of the motion, to allow all reasonable inference from it in his favor and to discard all countervailing evidence, and if there is then any dispute as to any material determinative evidence, or any doubt as to the conclusion to be drawn from the whole evidence, the motion must be denied.”

Plaintiff is the uncle by marriage of defendant, Anthony Grubbs, and the principal witness, William Alfred Jackson. Grubbs and Jackson are first cousins.

Jackson had purchased a mini-bike which was not operating properly. On March 27, 1976, he called his cousin, Anthony Grubbs and asked him to examine the bike and make some adjustments. Grubbs was busy, but he advised Jackson that he would look the bike over if it were brought to his house. Jackson informed Grubbs that his automobile was not available at that time. Grubbs suggested that he get Ransom, their uncle who was visiting at the Jackson home, to bring both him and the mini-bike over to this place, saying: “I haven’t seen him [Ransom] in a while, and I’d like to see him anyway.”

When plaintiff and Jackson arrived at the Grubbs home, they were informed that Grubbs was working in his private garage located to the rear of the home. Plaintiff and Jackson walked toward the garage, plaintiff tripped over a rake which Grubbs had left in high grass near the garage and suffered a broken ankle. He was immediately taken to the hospital.

Defendants insist that plaintiff was a social guest; it is the plaintiff’s contention that he was an invitee.

In Hall v. Duke, Tenn., 513 S.W.2d 776 (1974), the court concluded that a person who is an invitee must be on the owner’s land for either a public or business purpose.

Olsen v. Robinson, Tenn., 496 S.W.2d 462 (1973), followed Walker v. Williams, Tenn., 384 S.W.2d 447 (1964), and said that a social guest at a home is not at law an invitee but a licensee to whom the owner owes no duty except to refrain from willfully injuring him or from committing negligence so gross as to amount to willfulness nor to set a trap for him.

The defendants’ property on which plaintiff fell was used for their home. The garage was Anthony Grubbs’ personal garage and was not maintained for the pleasure of the public. It was used as a workshop for him and no one else unless he performed a job therein as an accommodation for a friend, neighbor or relative. There was no public business transacted there. Plaintiff had no business interest when he came on defendants’ property. He drove Jackson to the home of the defendants and was going to see the defendants on a social basis.

We find that the plaintiff could be nothing else but a social guest of defendants. As such, he must be placed on the same footing as one of the family and must take the premises as the occupier himself uses them. See: Hall, supra.

We further conclude that leaving a rake in the grass would not constitute gross negligence or the setting of a trap for an unwary guest. This is a common practice by many gardeners. One might expect to find garden tools in most rural yards and gardens.

We hold that the trial judge was correct in sustaining the defendants’ motion for a directed verdict. The assignment of error is overruled, and the case is dismissed.

Costs are assessed against the plaintiff.

MATHERNE and NEARN, JJ., concur.


text:
    John W. BLACKWELL and wife, Cathy R. Blackwell, and William H. Latimer, III, v. Cecil G. BUTLER and Tom Yarbro.
    Court of Appeals of Tennessee, Western Section.
    July 17, 1978.
    Certiorari Denied by Supreme Court Nov. 20, 1978.

      Ralph I. Lawson, Dyersburg, for defendants-appellants.
    John L. Warner, Jr., Union City, for plaintiffs-appellees.
   SUMMERS, Judge.

Plaintiffs-appellees, John W. Blackwell, Cathy R. Blackwell and William H. Latimer, III, sued defendants-appellants, Cecil G. Butler and Tom Yarbro. Plaintiffs sought a mandatory injunction to compel the defendants to repair a breach in and remove certain portions of a levee on defendants’ farm which defendants built to lessen their damage caused by unnatural concentration of surface waters along the north fork of the Obion River in Obion County.

Defendants filed an answer and counterclaim asking that one of the plaintiffs, William H. Latimer, III, be stricken as a party plaintiff because he owned no interest in the property belonging to the plaintiffs. Defendant further asked that plaintiffs be ordered to remove, push down and level all levees and fill all ditches on their property. The defendants also sought a money judgment for the loss of market value of their property because of levees and ditches that plaintiffs had built in the past.

The chancellor overruled the motion to strike William H. Latimer, III, as a party plaintiff and ordered that a mandatory injunction issue compelling the defendants to remove the levee that was constructed along the Obion River north to the point where it leaves the right-of-way of the easement of the gas company. He also ordered that defendants install a metal pipe with a flap gate in their ditch where it empties into the canal of the Obion River of a size not smaller than that in the ditch of the Blackwells where it empties into the canal of the Obion River.

Defendants appealed to this court and listed seven assignments of error. Defendants further filed a motion with this court requesting an order requiring the lower court to file as a part of the technical record discovery depositions taken of the plaintiffs, John W. Blackwell and William H. Latimer, III, and filed with the clerk and master but were never read into the bill of exceptions or made exhibits to the bill of exceptions.

The discovery depositions were never introduced or considered by the chancellor; the plaintiffs whose depositions are now requested were placed on the witness stand and counsel had every opportunity to cross-examine them. In the matter of Wilburn v. Vernon, 60 Tenn.App. 436, 447 S.W.2d 382 (1969), Justice Taylor speaking on the introduction of discovery depositions stated:

. They were allowed the opportunity of introducing any statements made in defendants’ discovery deposition which conflicted with their oral testimony given at the trial. Any other testimony could have been adduced while the parties were on the witness stand. The discovery deposition act was not passed to permit trials by deposition but to permit the ascertainment of truth by aiding a party in the preparation for trial. Southeastern Fleet Leasing, Inc. v. Gentry, 57 Tenn.App. 162, 416 S.W.2d 773; Harrison v. Greenville Ready-Mix Inc., 220 Tenn. 293, 417 S.W.2d 48.

Therefore, this court must overrule the motion made by defendants.

The Blackwells and defendants own adjoining farms in Obion County, and both farms have as a south boundary line the Obion River. The Blackwells’ farm contains approximately 432 acres and lies upstream from the farm owned by the defendants which contains approximately 330 acres. The Blackwells purchased their farm in 1974; the defendants purchased their land in 1976. In the southeast corner of the defendants’ farm lies a 58.6 acre tract that was acquired from the Black-wells’ predecessors in title.

The present farms owned by the Black-wells and the defendants are separated by a ditch which has been in existence for more than 20 years. The Blackwells’ predecessors in title constructed ditches and levees over a period of years and at one time dammed up the end of ditches that emitted water into the Obion River. Where these ditches were dammed, culverts with flood caps were installed. In 1975 plaintiff John W. Blackwell constructed an east-west ditch and levee and at the end of the ditch and levee installed two 12 foot culverts with flap gates.

Defendants’ predecessors in title between the years 1969 and 1973 constructed three ditches on the lower farm, and cut some of the timber on the 58.6 acre tract that was formerly owned by the Blackwells’ predecessors in title. O. P. King, who at one time operated the farm owned by the defendants, testified that he knew the farms owned by the parties, and “normal rains” caused no problems, but when the “river got out” the surface waters traveled southwest across both farms.

From the pleadings and the evidence it is well established that the natural flow of surface waters traveled from east to west and southward into the Obion River.

William H. Latimer, III, entered into an option contract with the Blackwells in September of 1976 to purchase the acreage owned by them for the sum of $422,000.00. Latimer, who had also been interested in buying the property owned by defendants, walked over the property and observed that during flooding the flow of surface waters was generally running from east to west and that the farm owned by the defendants was extremely wet and “later on that year was pretty well under water.”

After Latimer had entered into a contract with the Blackwells to purchase their farm and had placed some $20,000.00 option money with them, he was informed that defendants were building a levee surrounding most of their farm. This levee was completed, and it is this construction that set in motion this lawsuit.

The third assignment of error submitted by defendants was that the court erred in overruling defendants’ motion to strike Latimer as a real party in interest. William H. Latimer, III, was surely a real party in interest in the lawsuit in that he had deposited with the Blackwells the sum of $20,000.00 in option money and had the option extended until the final results of the lawsuit were determined. Therefore, this assignment is overruled.

In July of 1977, Latimer accompanied by Mark Phipps, holder of a Bachelor of Science Degree in Agricultural Engineering, visited the farm immediately following a 1¾ inch rain. Phipps was farming the land of the Blackwells at that time and was interested in the water situation as it effected his operation. After observing the results of the rain, Phipps stated as follows:

The water will back on to us, from what I have seen. Our property seems to slope from east to west. Our east line is higher than our west line. I feel like when water does come across us in a flood situation that it is going to be stopped by their levee and backed up on it. It will be higher and will take longer to get off.

Bob Nichols, consulting engineer with Bachelor and Masters Degrees of Science in Civil Engineering with special training in hydraulics, fluid mechanics and hydrology, observed the properties in question from an airplane following a rain and stated:

Q. What is the levee doing insofar as the water is concerned?
A. Backing it up.
Q. It is backed up beyond the property line between these two properties and onto the Blackwell property?
A. Yes.

The defendants introduced two witnesses that were disinterested. The first was a William Campbell, farmer, bulldozer operator and gravel pit owner, having some 18 years experience in building farm ditches, drains and levees. He stated that he had never been on the property owned by the Blackwells, but from looking at the property from the defendants’ land, it would appear to him that the levee would cause no trouble. The other disinterested witness was a Walter G. Hastings, real estate broker and farmer. Mr. Hastings testified that the levee and ditches would not effect the market value of the Blackwells property-

Assignments of error 1, 4, 5, 6 and 7 stated that the court erred in not holding that the Blackwells and their predecessors in title in building ditches and levees materially changed the natural flow of water or increased the volume of water that flowed on defendants’ farm, thereby damaging it and causing a decline in the fair market value of the farm and creating a nuisance to defendants’ property. The assignments further stated that the courts erred in permitting the plaintiffs to continue to remain leveed up, high and dry, and failed to hold that no prescriptive rights existed in favor of plaintiffs as to defendants in this cause.

The chancellor found:
8. That the plaintiffs [predecessors in title] in the early 1960’s constructed a ditch and earthen levy [sic] along their western boundary line which has its beginning at or near the northern most edge of the flood plain of the river and runs south along what is now the common boundary line of the real estate belonging to the plaintiffs and that belonging to defendants and finally empties into the canal of the Obion river. This ditch and levy [sic] is also constructed across the natural flow of the water. However there are several breaks in the levy [sic] allowing the water to flow naturally through these breaks and does not materially change the flow of the water. This levy [sic] and ditch does not materially effect the use of defendants land for agriculture purposes, in that it does not materially affect the natural flow of the water or increase the volume of water that flows across defendants land. The Court is not unmindful of the fact that the defendants have constructed a ditch and levy [sic] on their western boundary identical to the one constructed by plaintiffs. Also at the point where plaintiffs ditch empties into the Obion river, they have installed a metal pipe with a flap gate on it to prohibit the water from the river backing up their ditch and onto the lands of defendants.
9. That in the later 1960’s the plaintiffs [predecessors in title] constructed a ditch and levy [sic] across their land that runs east and west and runs generally with the flow of the water and does not materially change the natural flow of the water or increase the volume of water that would naturally flow across defendants land. All of the proof, both plaintiffs and especially the defendants, is to the effect that the low point of plaintiffs land is at their northwest corner and that the land on the south side of the canal is lower and that the natural flow of the water is in that direction and away from the lands of the defendants.

We agree with the chancellor. Therefore, assignments of error 1, 4, 5, 6 and 7 are overruled.

The last assignment of error addressed to this court was that the court erred in holding that defendants’ ditch and levee runs across the natural flow of the water when the Obion River is at flood stage, thereby constituting a hindrance to said natural flow which should be abated.

We believe the chancellor was correct when he held that the ditch and levee does run across the natural flow of water when the north fork of the Obion River is at flood stage, and as a natural consequence, the levee will retard and hinder the natural flow of the water and thereby cause the flood water to back up and stand on the real estate of the Blackwells for longer periods of time than would occur if allowed to flow naturally and unretarded.

There are two basic rules in regard to the natural flow or drainage and obstruction of surface waters. One is known as the civil law rule; the other is the common law or common enemy rule. It is well settled that the common law or common enemy rule does not apply in this state. See: Slatten v. Mitchell, 22 Tenn.App. 547, 124 S.W.2d 310 (1938).

In Talley v. Baker, 3 Tenn.App. 321 (1926), Justice Owen outlines the law in the obstruction of natural drainage:

All lands are of necessity burdened with the servitude of receiving and discharging all waters which flow down to them from lands on a higher level; and the owner of the lower land is liable for damages when by artificial means he causes the water to overflow the higher lands. Ry. v. Hays, 79 Tenn. (11 Lea), p. 382; Ry. v. Mossman, 90 Tenn. (6 Pickle) [157], 155-156; Davis v. Railway, 147 Tenn. 1 [244 S.W. 483].
A landowner, whether in country or city, has an easement for drainage of surface water in its natural flow over the lower land of a neighboring owner; and if the latter places an obstruction of any character upon his land that arrests this drainage and thereby causes'injury to the former, an action lies for damages. Garland v. Aurin, 103 Tenn. (19 Pickle), 555 [53 S.W. 940]; Davis v. L. & N. Ry. Co., 147 Tenn. [1], 2, [244 S.W. 483].
Any substantial or essential interference with the flow, if wrongful, whether attended with actual damage or not, is an actionable nuisance.
A lower riparian proprietor has no right to maintain a dam which will back water upon the upper riparian proprietor land in time of freshets or prevent its flowing therefrom to his injuries though at ordinary stages of water such dam will not occasion any injury. Allan v. Thorapple Elec. Co., 15 A.L.R. 453, 27 R.C.L., p. 1101, sec. 36.
“A man may build a dam across a stream on his own land, provided that thereby he does not appreciably diminish the amount of water, which should naturally flow on to the land of his neighbor below, or materially effect the continuity of the flow.” Trumlinger v. Howe, 22 L.R.A.(N.S.), 545; 27 R.C.L., p. 1101, sec. 37. We are of opinion that the Chancellor was not in error in sustaining complainant’s bill for mandatory injunction and granting the relief in regard to removing the obstruction in the ditch and cleaning out the same, which had become filled from said obstruction.

In 1969 the predecessors in title of the defendants purchased the 58.6 acres of land, well aware that it had been a portion of the land owned by the predecessors in title of the Blackwells. They knew where the ditches and levees were located and knew the flow of the water. It is true that in 1975 plaintiffs extended an east-west ditch and also dug a north-south ditch, but these ditches were well on the upper side of the plaintiff’s property and did not affect the flow of the water on the land of defendants.

In the case of Louisville & Nashville Railroad Co. v. Binkley, 1 Tenn.Ch.App. 531 (1901), Justice Barton writing for the court said:

We understand it to be well settled law that one landowner cannot so gather or obstruct the natural flow of surface water as to turn the same upon the property of an adjoining landowner in a way to injure him or destroy his property. For the defendant, however, it is insisted that the natural flow of the water is that territory was down and over the place where the complainant’s tract is now situated. It is true, as we have found, that originally this was the ease; but the railroad company owning all of the property had the right, if it chose to do so and if it became necessary to do so in carrying out its purpose, to entirely change the natural topography of this land. But it would not at that time have had a right to so change the natural topography as to throw the surface water that naturally came down over its land upon the lands of another; but, owning all the land at that time, it had a right to make any change in the natural surface that it desired that would not then injure an adjoining landowner, and to completely change the topography of that particular section owned by it, and it did make such change; and after that the natural flow of the water was, as we have seen, over the land now owned by the defendant, and this land was in this situation when the defendant purchased it from the complainant.

• After closely studying the proof and being cognizant of the law cited and relied on by plaintiffs, assignment of error 2 is respectfully overruled.

Whereas, the distinguished chancellor showed commendable insight in the resolu-tioij of all issues, his judgment in all respects is affirmed.

The costs will be assessed to the defendants.

MATHERNE and EWELL, JJ., concur.