author: HENRY, Justice.

text:
    STATE of Tennessee, Petitioner, v. Carl WILLIAMS and Donnie Wiser, Respondents.
    Supreme Court of Tennessee.
    Nov. 29, 1976.
    Rehearing Denied March 14, 1977.
    Brooks B. McLemore, Atty. Gen., David L. Rabin, Asst. Atty. Gen., Nashville, Charles S. Ramsey, Jr., Dist. Atty. Gen., Manchester, for petitioner.
    Irwin Venick, Nashville, for Tenn. Council of Juvenile Judges, amicus curiae.
    T. Arthur Jenkins, Manchester, for respondents.
    Adrienne E. Volenik, Paul Piersma, St. Louis, Mo., for Nat. Juvenile Law Center, amicus curiae.
   OPINION

HENRY, Justice.

It was the sole purpose and intent of this appeal to present for resolution the single and significant issue of whether a non-lawyer juvenile judge may constitutionally incarcerate a juvenile or deprive him of his liberty.

The Court of Appeals, in a scholarly opinion by Judge Drowota, with Judge Todd dissenting, held:

[tjhat because a reasonable likelihood of prejudice exists when lay judges preside over juvenile proceedings resulting in incarceration, the fundamental fairness required by the due process clause of the fourteenth amendment of the federal constitution and Article I, § 8 of the state constitution require the use of an attorney judge.

We granted certiorari to examine the correctness of this conclusion, in this, a case of first impression in this jurisdiction. That it is a matter of far-reaching significance and, therefore, of vital public importance, is self-evident. It is an issue that this Court is ready to address. The time is opportune. Irrespective of the conclusion we reach, this question, along with analogous questions involving lay judges in other areas, will undoubtedly be considered in substantial detail by the forthcoming constitutional convention. The thinking of this Court would be helpful and, we believe, welcome.

Unfortunately we are unable to decide the controversy on the basis of the record before this Court.

The bills of exceptions before us are fatally defective.

First, and of least importance, is the fact that neither contains the mandatory recitation that “this was all the evidence heard in this case”, or words of like import. While this historic requirement is a matter of universal knowledge, it does not preclude consideration of a bill of exceptions bearing the signatures of counsel, indicating their approval and signed by the judge. Norris v. Anderson, 60 Tenn.App. 261, 445 S.W.2d 927 (1969).

This brings us to the fatal objection: these bills of exceptions were not signed by the trial judge.

Section 27-110, T.C.A. provides that “[t]he certificate of approval of the parties . shall be sufficient leave to file same . . . ”, and further provides for filing, without joint signatures upon notice to adversary counsel; and provides a procedure for exceptions thereto. Thereafter the statute provides for the certificate of approval of the trial judge.

In short, filing is permissible either by the signatures of all counsel or by the unilateral action of the moving party accompanied by notice. But, regardless of how filed, the bill of exceptions does not become an official record of the trial proceedings unless and until authenticated by the trial judge. McAmis v. Carlisle, 42 Tenn.App. 195, 300 S.W.2d 59 (1956). See also Caruther’s History of a Lawsuit, (8th Ed. 1963), Section 438.

Finally, neither bill of exceptions was filed within the time required by law— within thirty (30) days from the entry of the order which occasioned its filing. § 27-111, T.C.A.

The record reflects the order in each case was entered on 20 November 1974 and in each case the order recites that the juvenile “is allowed 30 days to file his appeal bond or pauper’s oath in lieu of appeal bond and otherwise perfect his appeal.”

Thus, the time for filing a bill of exceptions in each case expired on December 20, 1974. In each case the bill was filed on January 20, 1975.

In each case, on December 27,1974, after it was too late to file a bill of exceptions, the record contains an order directing that each indigent defendant be provided a transcript. Written into each order but lined out and initialed by the trial judge, was the following:

Time for defendant to file his bill of exceptions is extended until such time as the Court reporter can properly prepare this transcript.

It is beyond our comprehension that counsel should delay for over thirty (30) days making a formal motion for a transcript — especially in a case wherein an attack is made upon a lay judge’s ability with the underlying and inherent insistence that a lawyer could do a better job.

We do not wish to be overly technical. We would prefer to decide the controversy, but we must abide the rules of procedure adopted by the legislature and long adhered to by our appellate courts.

In Lindsey v. Fowler, 516 S.W.2d 88, 89 (Tenn.1974) we faced an analogous situation, and stated our reluctance thusly:

This Court is reluctant to decline to entertain any appeal on the basis of technicalities and makes every effort to rescue the record and reach a decision on the merits.
The record in this case, however, is beyond the reach of the life-line.

The result is that we have no bill of exceptions and must limit our consideration to the technical record alone.

The technical record does not answer the basic question from which all others stem, viz: Is the County Judge (Juvenile) of Coffee County a lawyer?

It, therefore, results that the question presented to this Court, briefed by the Attorney General’s office, counsel for the juveniles and two amicus curiae, is not before this Court, leaving us with no alternative but to affirm the trial court.

The opinion of the Court of Appeals is reversed and that of the trial judge is affirmed.

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

      .On June 28, 1976, the Supreme Court of the United States decided North v. Russell, 427 U.S. 328, 96 S.Ct. 2709, 49 L.Ed.2d 534, holding, in substance, that a two-tier trial court system, with lay judges in the first tier and an appeal of right and a de novo trial before a lawyer-judge, does not violate either the due process or equal protection clauses of the federal constitution. The Court in North, however, was dealing with an adult. Assuming arguendo that the North principle is applicable to juveniles, this does not preclude our examination of the matter from a standpoint of the State Constitution. Oregon v. Hass, 420 U.S. 714, 95 S.Ct. 1215, 43 L.Ed.2d 570 (1975); State v. Kaluna, 520 P.2d 51 (Hawaii 1974).

      . There are two bills of exceptions. These cases were informally consolidated in the Circuit Court, and heard together. The bills of exceptions are virtually identical, except as to matters of proof.

      . These bills of exceptions contain the word “approved”, followed by the signatures of the District Attorney General and “counsel for the Defendant.”

      . The bills of exceptions proceed upon the assumption that Judge John W. Ray is not a lawyer, but neither side bothered to ask him and there is no proof — one way or another in the record.


source: Caselaw Access Project

author: FONES, Justice. BROCK, Justice,

license: Public Domain

text:
    Selma Cash PATY, Appellant, v. Rev. Paul A. McDANIEL et al., Appellees.
    Supreme Court of Tennessee.
    March 7, 1977.

      Selma Cash Paty, pro se.
    Brooks McLemore Jr., Atty. Gen., Kenneth R. Herrell, Asst. Atty. Gen., Nashville, for appellant.
    J. Thomas Mann, Thomas, Leitner, Mann, Warner & Owens, Chattanooga, Frederic S. Le Clercq, Knoxville, for appellees.
   OPINION

FONES, Justice.

The major issue in this case is whether the Tennessee Constitutional provision de-daring ministers of the gospel and priests of any denomination whatever, ineligible to a seat in either house of the Legislature, violates the free exercise clause of the First Amendment to the Federal Constitution.

Public Acts 1976, Chapter 848, the Legislative call for a limited constitutional convention, established the qualifications of delegates as the same as those for membership in the House of Representatives, thus invoking Article IX, Section 1 of the Constitution of Tennessee that provides:

“Section 1. Ineligibility of ministers and priests to seats in legislature. —Whereas Ministers of the Gospel are by their profession, dedicated to God and the care of souls, and ought not to be diverted from the great duties of their functions; therefore, no Minister of the Gospel, or priest of any denomination whatever, shall be eligible to a seat in either House of the Legislature.”

Appellant, Selma Cash Paty, a candidate for the office of delegate to the 1977 Constitutional Convention from the twenty-ninth (29th) district of Hamilton County, brought this suit to have appellee, Reverend Paul A. McDaniel, an opposing candidate, declared ineligible to serve, and to remove his name from the ballot.

Appellee defends on the grounds that Article IX, Section 1, violates the free exercise and establishment clauses of the First Amendment to the Constitution of the United States, and the equal protection clause of the Fourteenth Amendment.

The Chancellor observed that:

“The free exercise of religion must include the right to be a minister of the gospel as this is a tenet of the individual’s belief.”

He held that the exclusion of ministers from public office infringes upon the free exercise of religion guaranteed by the First Amendment and is therefore void.

Appellant insists that the exclusion of ministers fortifies the doctrine of separation of church and state, is directed against a profession, not the exercise of religion, and that it is a natural and reasonable classification rather than a constitutionally impermissible invidious, arbitrary or capricious one.

In the trial court, appellant called appel-lee as her witness and established that Reverend McDaniel is pastor of the Second Missionary Baptist Church in Chattanooga; that he considers the ministry to be a profession and one of his many duties as such is to lead people to salvation; that if elected as a delegate to the 1977 Constitutional Convention he would not resign as a minister of the gospel, nor as pastor of the church he now serves. On cross-examination it was established that Reverend McDaniel has a Bachelors Degree in Political Science from Moorehead College, a Masters of Divinity from Colgate-Rochester Divinity School and a Masters in Sociology from the University of Rochester. Appellee testified that he could carry out his duties as a minister while serving as a delegate to the Constitutional Convention and that he had no knowledge of any objection on the part of his church to his candidacy or service as a delegate.

Upon its first arrival in this Court, the case was remanded to cure the deficiency of failure to make the Attorney General of Tennessee a party. T.C.A. § 28-1107, Rule 24.04, T.R.C.P., Cummings v. Beeler, 189 Tenn. 151, 223 S.W.2d 913 (1949); Buena Vista Special School District et al. v. Board of Election Commissioners et al., 173 Tenn. 198, 116 S.W.2d 1008 (1938) and Cummings v. Shipp, 156 Tenn. 595, 38 S.W.2d 1062 (1928).

Upon remand, the Attorney General waived appearance in the trial court so that an expedited appeal to this Court might result in a decision before election day. That objective proved to be unattainable and he has filed, at the direction of the Court, a brief addressing all of the issues. He joins appellant in urging the constitutionality of Article IX, Section 1.

It has long been the established law that the First Amendment to the United States Constitution is applicable to the States through the Fourteenth Amendment. Cantwell v. Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213 (1940).

It is, of course, our responsibility to examine the decisions of the United States Supreme Court for principles and guidelines applicable to and determinative of the issues here, as that Court is the ultimate expounder of the United States Constitution.

But, in our view, we are also required to give weight to the well-established principle that courts must indulge every reasonable presumption of law and fact in favor of the validity of a state’s constitutional provision that has been ratified by the people. Snow v. City of Memphis, 527 S.W.2d 55 (Tenn.1975); Southern Railway Company v. Fowler, 497 S.W.2d 891 (Tenn.1973); People v. Sours, 31 Colo. 369, 74 P. 167 (1903); State v. Alderson, 49 Mont. 387, 142 P. 210 (1914); Weeks v. Ruff, 164 S.C. 398, 162 S.E. 450 (1932); State ex rel. Morgan v. O’Brien, 134 W.Va. 1, 60 S.E.2d 722 (1948).

I.

The history of Article IX, Section 1 reveals that it is identical to Article VIII, Section I of the original Tennessee Constitution, approved in 1796. That constitution was almost totally derived from the 1776 North Carolina Constitution and the 1784 Constitution of the lost State of Franklin. See, Caldwell, Studies in the Constitutional History of Tennessee, 77—101 (1907); see also McClure, State Constitution Making, 377—460 (1916).

Both North Carolina and Franklin had constitutional provisions prohibiting ministers from participating in government. North Carolina’s read:

“XXI. That no clergyman or preacher of the gospel shall be capable of being a member of either the Senate, House of Commons, or Council of State, while he continues in the exercise of the pastoral function.” McClure at 437.

The State of Franklin’s was identical. Williams, History of the Lost State of Franklin, 339 at 345 (1933). The North Carolina Constitution also prohibited “receivers of public monies,” “officers in the regular army or navy,” “agents supplying the army or navy” and “athiests” as well as other government officials from serving in the legislature. McClure at 405.

During our first constitutional convention, an attempt was made to prevent ministers from serving in' “any civil or military office or place of trust within this state” as well as the general assembly. Journal of the 1796 Constitutional Convention, 18 (1796). The attempt failed, Id. at 23. The Constitutional Conventions of 1835 and 1870 were unlimited, and the subject provision was readopted by each Convention and ratified by a vote of the people of Tennessee. In the one hundred eighty (180) year life span of this constitutional provision no challenge to its validity has reached this Court. It may or may not be of significance that over the entire period of our statehood, no minister or priest has heretofore felt sufficient infringement upon his free exercise of religion, by virtue of ineligibility to serve in the Tennessee Legislature, to litigate the question.

II.

The only reported case our research has disclosed involving the identical issue we face in the case at bar, is Kirkley v. State of Maryland, 381 F.Supp. 327 (D.Maryland 1974). The U. S. District Court for the District of Maryland declared unconstitutional Article III, Section 11, of the Constitution of the State of Maryland prohibiting ministers or preachers of the gospel, or of any religious creed or denomination from service as Senator or Delegate. Defendants, the State of Maryland represented by the Governor and the Attorney General, for all intents and purposes, admitted the unconstitutionality of the provision and made no attempt to demonstrate any basis for the exclusion of ministers as State Legislators. The Attorney General of Maryland had issued an opinion expressing the view that the section in question was unconstitutional. He concluded, in part, that its inclusion in the Maryland Constitution was due to “a nineteenth century view of the ministry not particularly complimentary to that calling and not prevalent today.” 381 F.Supp. at 331.

The district judge added, “Another reason, no doubt, was to insure the separation of Church and State.” Id. But, he observed that there are members of the clergy sitting in the Congress of the United States and in all probability in the legislatures of other states, and concluded that if this exclusion was necessary to insure the proper separation between church and state, the Federal Government would have done so.

The State of Maryland did not appeal from the decision of the district court.

We pause to examine the effect of the exclusion of ministers and priests from service in the legislature. It is not asserted by appellee that service in the General Assembly of Tennessee is a tenet of the Baptist faith, nor are we aware of any religious sect that asserts that seeking and serving in public office is a religious duty. It is purely a secular activity. But, it is also true that a minister or priest is faced with the choice of abandoning either his leadership role in religion or any hope of serving the people of his district in the State Legislature. We also recognize that there is some validity in describing the effect of Article IX, Section 1, as prohibiting legislative service because of a person’s leadership role in a religious faith.

But the question may well be asked, does it in fact impede the free exercise of religion? Those who believe that all religious leaders should devote their entire time to ecclesiasticism will insist that no true religious leader would be deterred from accepting or retaining that role, because of exclusion from state legislative service; that religious leaders entering the political arena as candidates for public office, and their service in public office, would be detrimental and degrading to all religions and represent the ultimate violation of the admonition “Render therefore unto Caesar the things which are Caesar’s; and unto God the things that are God’s.” They would conclude that, at most, the Article constitutes a de minimus theoretical impediment to religion.

On the other hand, many would answer that it is a direct affront to all religion to disqualify the entire leadership of every religious sect from service in the state legislature and represents the ultimate in governmental interference with religion.

All rhetoric aside, the subject provision simply does not impose any burden, direct or indirect upon religious belief or religious action. It is not religious belief, but the career or calling, by which one is identified as dedicated to the full time promotion of the religious objectives of a particular religious sect, that disqualifies. Ineligibility for service in the General Assembly in no way restricts religious action — except in the law making process of government — where religious action is absolutely prohibited by the establishment clause, as we read the decisions of the United States Supreme Court.

In Everson v. Board of Education of Ewing Tp., 330 U.S. 1, 67 S.Ct. 504, 91 L.Ed. 711 (1948), the Supreme Court said:

“Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa.” 330 U.S. at 16, 67 S.Ct. at 512.

Every First Amendment case with which we are familiar has involved governmental action said to interfere with religion or tend to favor one religion over another or favor all religious persons over non-religious persons. This case is unique, but clearly the above quoted sentence from Ev-erson prohibits religious participation in the affairs of government to the identical extent that it prohibits governmental participation in religion. Parenthetically, a valid argument might be advanced that the case at bar is analogous to and the validity of our constitutional provision is supported by the decision in Illinois ex rel. McCollum v. Board of Education, 333 U.S. 203, 68 S.Ct. 461, 92 L.Ed. 649 (1948), where utilization of tax supported public schools in aid of religious instruction was held to violate the establishment clause. The effect of the factual situation in McCollum may be said to have constituted religious interference with governmentally established secular institutions to promote religious goals. Of significance to the case at bar, the Court said:

“For the First Amendment rests upon the premise that both religion and government can best work to achieve their lofty aim if each is left free from the other within its respective sphere. Or, as we said in the Everson case, the First Amendment has erected a wall between Church and State which must be kept high and impregnable.” 333 U.S. at 212, 68 S.Ct. at 465.

There is another consideration that, it seems to us, has significance on the issue under consideration. We can take judicial notice of the fact that Baptists, Methodists and Catholics separately and collectively, far outnumber other religious sects, both separately and collectively. Opening the door to service in the General Assembly by ministers and priests would grant a distinct advantage to ministers and priests of the three mentioned religions, over those of all other sects, because of the far more extensive voter base from which to launch a campaign for office. Also, political campaigns by ministers would naturally tend to pit religion against nonreli-gion. The potentially “divisive forces” considered significant in numerous First Amendment decisions of the Supreme Court are clearly present in sanctioning the candidacy of ministers and priests for legislative service.

We do not agree with appellee that the subject prohibition encroaches upon the freedom of belief of ministers and priests. We, of course, recognize the oft repeated interpretation that the First Amendment embraces two concepts — freedom to believe and freedom to act. “The first is absolute, but, in the nature of things, the second cannot be.” Cantwell v. Connecticut, 310 U.S. 296 at 303, 60 S.Ct. 900 at 903, 84 L.Ed. 1213 (1940).

In our view, if any encroachment results from the ineligibility of ministers and priests to serve in the General Assembly of Tennessee it is an indirect burden on the freedom to act in the governmental sector. There the freedom of ministers and priests to act necessarily breaches the wall between church and state and collides with the establishment clause.

We are persuaded that Braunfeld v. Brown, 366 U.S. 599, 81 S.Ct. 1144, 6 L.Ed.2d 563 (1961), is sufficiently analogous to the case at bar to control its disposition. In Braunfeld, the Court sustained a Sunday closing law even though conceding that it undoubtedly served to make the practice of religious beliefs of Orthodox Jewish merchants more expensive. A distinction was made between legislation that imposes only an indirect burden on the exercise of religion, and legislation that attempts to make a religious practice itself, unlawful.

As members of the Orthodox Jewish faith, appellants were required by their religious beliefs to close their places of business from nightfall each Friday until nightfall each Saturday. They alleged, and their allegations were assumed to be true, as the case was before the Court on a motion to dismiss, that the Sunday closing law forced them to make a choice between giving up their Sabbath observance, a basic tenet of their religious beliefs, or suffer serious economic loss. They also asserted that the statute would hinder the Orthodox Jewish faith in gaining new adherents, subjecting their religion to discriminatory treatment in violation of the free exercise clause of the First Amendment. Appellant Braunfeld, alleged that he would be forced out of business and would lose his capital investment if he could not open on Sunday.

In analyzing the effect of the Sunday closing law the Court observed that the statute did not make unlawful any religious practices of appellants or force them to say or believe anything in conflict with their religious tenets.

. . the Sunday law simply regulates a secular activity and, as applied to appellants, operates so as to make the practice of their religious beliefs more expensive. Furthermore, the law’s effect does not inconvenience all members of the Orthodox Jewish faith but only those who believe it necessary to work on Sunday. And even these are not faced with as serious a choice as forsaking their religious practices or subjecting themselves to criminal prosecution. Fully recognizing that the alternatives open to appellants and others similarly situated — retaining their present occupations and incurring economic disadvantage or engaging in some other commercial activity which does not call for either Saturday or Sunday labor — may well result in some financial sacrifice in order to observe their religious beliefs, still the option is wholly different than when the legislation attempts to make a religious practice itself unlawful.” (Emphasis added) 366 U.S. at 605, 606, 81 S.Ct. at 1147.

Having concluded that the effect of the Sunday closing law upon appellants was the mere imposition of an indirect burden on the exercise of religion the Court continued:

“To strike down, without the most critical scrutiny, legislation which imposes only an indirect burden on the exercise of religion, i. e., legislation which does not make unlawful the religious practice itself, would radically restrict the operating latitude of the legislature.
. if the State regulates conduct by enacting a general law within its power, the purpose and effect of which is to advance the State’s secular goals, the statute is valid despite its indirect burden on religious observance unless the State may accomplish its purpose by means which do not impose such a burden. See Cantwell v. Connecticut, supra (310 U.S. at pp. 304, 305, 60 S.Ct. 900).” 366 U.S. at 606, 607, 81 S.Ct. at 1147, 1148.

The Court found that Pennsylvania was justified in setting aside one day of the week as a day of rest, repose, recreation and tranquility; that it was beneficial to the public welfare to do so. Alternatives to designating Sunday as the single day of rest and of exempting Sabbatarians were rejected as undermining the State’s goal of providing a single day of rest.

The effect of Tennessee’s constitutional provision prohibiting service in the General Assembly is to advance the State’s goal of maintaining the separation between church and state, an imperative, constitutionally equal to the free exercise mandate. In our opinion, it is far higher on the scale of legitimate state goals than the mere convenience of having everyone rest on the same day, which sufficed in Braunfeld. If any burden can be said to be imposed upon the exercise of religion, it is indirect, minuscule, and does not make unlawful any religious practice. In all respects, the prohibition in the case at bar is upon firmer constitutional grounds than the Sunday closing law, sustained in Braunfeld.

But, the record in the case at bar contains neither facts, nor expert testimony to assist the Court in assessing the effect that voiding Article IX, Section 1 of our Constitution would have in breaching the wall between church and state. Appellant directs our attention to the not insignificant number of laws dealing with ministers as an occupation and generally conferring special privileges upon them as a class. Examples noted are their exclusion from the draft by the Selective Service Act of 1967, exclusion from jury service in Tennessee, the confidential communications statutes of this State and particular sections of the Internal Revenue Code all of which appellant implicitly asserts give ministers and priests special treatment. We are unable to perceive that any of the special legislation cited in appellant’s brief dealing with ministers as an occupation provides any direct evidence in support of the allegations that their service in the State Legislature would violate the establishment clause of the First Amendment. However, such legislation does emphasize that ministers and priests occupy a very special position in our society, and that by virtue of their position, they have an influence upon many of their fellow men, that others cannot exert.

It seems to us that it can fairly be said, in affirmative support of appellant’s position, that ministers and priests could be expected, if and when serving in the Legislature, to do everything within their professional and spiritual powers of persuasion to further the aims of religion by sponsoring, advocating and voting for legislation that could or might violate both the free exercise and establishment clauses of the First Amendment; that without regard to the degree of success they might achieve, such activity would constitute a divisive force sufficient to constitute a significant violation of the Doctrine of Separation of church and state; that history will reflect that all governmental action that has been condemned by the First Amendment and the judicial decisions interpreting same has been sponsored and enacted by religiously motivated members of the legislature in direct response to the leadership of religious sects; that the effectiveness of that religious leadership in the governmental sector would be greatly enhanced by the presence in the State’s highest deliberative bodies of ministers and priests. The present day religious wars in Ireland and Lebanon, that shock the conscience of all men of good will, everywhere, religious and non-religious, remind us that the human race has not advanced to a degree of civilization that will permit us to conclude that the fervor of religion will never again disturb and disrupt secular affairs and government. Out of its proper realm it is a force of awesome power and influence upon human conduct.

The later case of Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963), is similar in some respects to Braun-feld, and a different result was reached. However, the distinctions are clear and apparently represents no erosion of the Braunfeld decision.

In Sherbert appellant’s religion prohibited Saturday labor. The textile mill where she had worked five days a week for two years, changed all three shifts to a six day week. She was unable to find other employment, because of her unwillingness to depart from a basic tenet of the Seventh Day Adventist creed. Her application for unemployment compensation benefits was denied on the grounds that she had failed without good cause to accept suitable work. That ruling was sustained by the courts of South Carolina and reversed by the Supreme Court. The effect of South Carolina’s action was analyzed as follows:

“For ‘[i]f the purpose or effect of a law is to impede the observance of one or all religions or is to discriminate invidiously between religions, that law is constitutionally invalid even though the burden may be characterized as being only indirect.’ Braunfeld v. Brown, supra, 366 U.S., at 607, 81 S.Ct., at 1148. Here not only is it apparent that appellant’s declared ineligibility for benefits derives solely from the practice of her religion, but the pressure upon her to forego that practice is unmistakable. The ruling forces her to choose between following the precepts of her religion and forfeiting benefits, on the one hand, and abandoning one of the precepts of her religion in order to accept work, on the other hand. Governmental imposition of such a choice puts the same kind of burden upon the free exercise of religion as would a fine imposed against appellant for her Saturday worship.” 374 U.S. at 404, 83 S.Ct. at 1794.

No compelling state interest to justify the infringement upon appellant’s First Amendment right was asserted and proven to exist. The possibility that fraudulent claims by insincere claimants would dilute the fund and hinder scheduling by employers of necessary Saturday work was rejected, having been asserted for the first time in the Supreme Court and there being no supportive evidence in the record. The Court also expressed doubt that these asserted interests could be shown to be sufficiently compelling to justify a First Amendment infringement.

The Court distinguishing Sherbert from Braun felá, said:

“In these respects, then, the state interest asserted in the present case is wholly dissimilar to the interests which were found to justify the less direct burden upon religious practices in Braunfeld v. Brown, supra. The Court recognized that the Sunday closing law which that decision sustained undoubtedly served ‘to make the practice of [the Orthodox Jewish merchants’] religious beliefs more expensive,’ 366 U.S., at 605, 81 S.Ct., at 1147. But the statute was nevertheless saved by a countervailing factor which finds no equivalent in the instant case — a strong state interest in providing one uniform day of rest for all workers.” 374 U.S. at 408, 83 S.Ct. at 1796.

Appellee insists that his free exercise claim is closely akin to the question presented in Torcaso v. Watkins, 367 U.S. 488, 81 S.Ct. 1680, 6 L.Ed.2d 982 (1961). Torcaso was refused a commission as notary public because he would not declare his belief in God. The Maryland Constitution provided that no religious test be required for any office, except a declaration of belief in the existence of God. The Court said that the test oath is abhorrent to our tradition and that neither a state nor the Federal Government can constitutionally force a person “to profess a belief or disbelief in any religion.” In our opinion, Article IX, Section 1 does not have the effect of forcing ministers and priests to profess a belief or disbelief in any religion. The test oath clearly intruded upon the freedom to believe or to disbelieve, and no state interest to justify its imposition was, or could be asserted.

Appellee also relies upon Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972), and West Virginia State Board of Education v. Barnette, supra footnote 3, as involving constitutionally protected religious belief and action, comparable with his situation. In both cases the Supreme Court invalidated state action requirements that directly interfered with religious beliefs. In our opinion, the cases are inapposite.

We conclude that Article IX, Section 1, Constitution of Tennessee, does not infringe upon religious belief or religious action within the protection of the free exercise clause; that such indirect burden as may be imposed upon ministers and priests by excluding them from the lawmaking process of government is justified by the compelling state interest in maintaining the wall of separation between church and state.

III.

Appellee argues that Article IX, Section 1 amounts to an establishment of religion, in violation of the First and Fourteenth Amendments of the United States Constitution. This argument is predicated on the assumption that the provision applies only to ministers and priests of the Christian faith; that it was originally intended as a preference or benefit protecting them from diversion from the “great duties” of the pastoral function.

We disagree with that interpretation.

The word “priest” is defined in Webster’s Third New International Dictionary, pp. 1799-1800 (1971) as: “1: one who performs sacrificial, ritualistic, mediatorial, interpretative, or ministerial functions esp. as an authorized or ordained religious functionary or official minister of a particular religion.”; and in the American Heritage Dictionary Of The English Language, p. 1039 (1970) as: “2. A minister in a non-Christian religion. 3. One whose role is considered comparable to that of a priest.”

We hold that the phrase “. priests of any denomination whatever” is intended to embrace the counterparts of ministers, priests and rabbis in every religious sect, whatever may be their title or designation.

The disposition we make of appel-lee’s establishment clause contention also disposes of his assertion that Article IX, Section 1 is unconstitutionally vague.

IV.

Appellee’s last federal constitutional contention is that Article IX, Section 1 amounts to state discrimination against himself and other ministers who wish to serve as delegates to the 1977 Constitutional Convention. We again disagree. The equal protection clause does not strike down every difference in the application of laws but rather is concerned with “invidious distinctions.” Williams v. Rhodes, 393 U.S. 23, 89 S.Ct. 5, 21 L.Ed.2d 24 (1968). We do not find that the disqualification of ministers from seats in the Legislature amounts to such a distinction..

The United States Supreme Court has created two (2) tests for normally determining whether or not a particular state action violates the equal protection clause. In order to determine which test to apply the Court looks at: “the character of the classification in question; the individual interests affected by the classification; and the governmental interests asserted in support of the classification.” Dunn v. Blumstein, 405 U.S. 330, 335, 92 S.Ct. 995, 999, 31 L.Ed.2d 274 (1972). If a state law or action makes a classification that infringes on a “constitutionally protected right” it must show a “compelling state interest” for that classification or it is unconstitutional. Id. at 339, 92 S.Ct. 995. However, if a non-fundamental right is in question, the state need only demonstrate that the classification is reasonably related to a permissible state interest. Dandridge v. Williams, 397 U.S. 471, 485, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970). Both parties rely on these tests in their opposing positions on the constitutionality of Article IX, Section 1. But, in Bullock v. Carter, 405 U.S. 134, 92 S.Ct. 849, 31 L.Ed.2d 92 (1972) the Supreme Court has articulated a third test that we believe to be applicable here. The Court was faced with which standard should be applied to a state filing fee which could prevent poor persons from holding public office. The Court determined that a test more rigid than merely “a rational basis” but not seemingly as strict as requiring “a compelling state interest” should be applied. Chief Justice Burger spelled out the test that would be employed to evaluate classifications that infringed on the right to seek and hold public office:

“. . . the laws must be ‘closely scrutinized’ and found reasonably necessary to the accomplishment of legitimate state objectives in order to pass constitutional muster.” 405 U.S. at 144, 92 S.Ct. at 856.

Our examination of both Article IX, Section 1 and its legislative history reveals that the state’s objective was and always has been to insure separation of church and state. While we are of the opinion that a compelling state interest un-dergirds Article IX, Section 1, the legitimacy of its objective is beyond question. We reject the contention that the subject article violates the equal protection clause of the Fourteenth Amendment.

V.

Although the disposition we make of this case does not require that we address appellant’s second assignment of error, we deem it appropriate to do so, because of its relevance if the ultimate result is contra.

The learned Chancellor decreed:

“That the portion of Section 4 of Chapter 848 of the Public Acts of Tennessee, 1976, which reads, *. . . who can qualify for membership in the House of Representatives of the General Assembly . ’, be and it hereby is declared to be in violation of the requirements of the First Amendment of the Federal Constitution.
That the requirements for the office of delegate to the 1977 Tennessee Constitutional Convention be and they hereby are declared to be determined by the general statutes on qualifications for office-holders, as set forth in the Code of Tennessee.”

Appellant asserts that if Article IX, Section 1 is unconstitutional the remaining qualifications and disqualifications for membership in the House of Representatives of the General Assembly of Tennessee should control rather than the general statutes on qualifications for state offices. We also sustain appellant’s second assignment of error.

There are significant distinctions between the qualifications for membership in the House of Representatives and those prescribed in the general statutes applicable to offices under the authority of this State, not otherwise specifically provided.

Section 11 of Chapter 848, Public Acts of 1976 is an all inclusive rescue or savings clause. No extensive analysis is required of the doctrine of elision as applied in this State to support our conclusion that if the unconstitutionality of Article IX, Section 1 be conceded, that single disqualification should be elided and the remaining qualifications and disqualifications for membership in the House of Representatives govern the eligibility of delegates to the 1977 limited constitutional convention. See, Carr v. State ex rel. Armour, 196 Tenn. 256, 265 S.W.2d 556 (1954), Davidson County v. Elrod, 191 Tenn. 109, 232 S.W.2d 1 (1950); and State v. Dunn, 496 S.W.2d 480 (Tenn.1973).

VI.

Reverend McDaniel filed a counter-complaint, cross-complaint and third party complaint on October 21, 1976, following this Court’s remand of the first appeal. The action was brought on behalf of himself and all other ministers of the gospel, all priests of any denomination whatever, present and future, (1) who wish to seek election as delegates to the 1977 constitutional convention or any future constitutional convention and (2) who wish to seek election as members of either body of the General Assembly of this State; and as a class action on behalf of himself and all independent voters who (1) wish to vote for delegates to the 1977 limited constitutional convention and all future constitutional conventions, (2) who wish to vote for candidates for election as members of the House or Senate and (3) who wish to vote for ministers of the gospel or priests of any denomination whatever in the November 2, 1976, election or any future election to a constitutional convention or to both bodies of the General Assembly of this State.

The Chancellor, having declared Article IX, Section 1 unconstitutional, granted the relief sought by Reverend McDaniel and all persons similarly situated composing the class of ministers of the gospel and priests of any denomination whatever who are candidates to serve as delegates to the 1977 limited constitutional convention and denied all other relief sought.

Reverend McDaniel appeals from the failure to grant relief to the other classes of persons described above.

We overrule all of the assignments of error relied upon by Reverend McDaniel. The Chancellor correctly held in his memorandum opinion that the issues raised on behalf of said classes do not present justiciable controversies under the declaratory judgment statute because they are abstract, theoretical and based upon contingencies which may not arise. Story v. Walker, 218 Tenn. 605, 404 S.W.2d 803 (1966).

We hold that Article IX, Section 1, Constitution of Tennessee is free of Federal Constitutional infirmities. The result is that appellee, Reverend Paul McDaniel, a minister of the gospel, is ineligible to serve as delegate to the 1977 limited constitutional convention. He was the successful candidate in the November 2, 1976, election for delegate from the 29th District, Hamilton County, Tennessee. Section 6, Chapter 848, Public Acts of 1976 provides that any vacancy in the membership of the convention from any representative district shall be filled by election of a qualified delegate by the legislative body of the county of residence of the delegate whose seat becomes vacant.

The judgment of the Chancery Court of Hamilton County, Tennessee, is reversed. The clerk of this Court will issue an order certifying to the Governor, the Secretary of State, and the legislative body of Hamilton County that a vacancy exists in the 29th House District, Hamilton County, by virtue of Reverend Paul McDaniel’s ineligibility. Costs are adjudged against appellee.

COOPER, C. J., and HENRY and HAR-BISON, JJ., concur.

BROCK, J., dissents (see separate opinion).

BROCK, Justice,

dissenting.

I dissent from the decision and opinion of the majority.

In my opinion, Chapter 848, Public Acts of 1976, insofar as it declares ministers of the gospel and priests of any denomination ineligible to serve as delegates to the Constitutional Convention of 1977, is violative of the (1) “free exercise” guaranties of the First Amendment to the Constitution of the United States and Article 1, Sec. 3, Constitution of Tennessee and (2) the equal protection clause of the Fourteenth Amendment to the Constitution of the United States.

I cannot agree with the conclusion of the majority that “. . . the subject provision simply does not impose any burden, direct or indirect upon religious belief or religious action.” It is my view that the statute does, indeed, substantially and directly prohibit the free exercise of religion by the appellee and that no reason, consistent with the First Amendment, can be advanced to justify the prohibition.

The statute clearly prohibits a minister, who is otherwise qualified, from serving as a delegate in the Constitutional Convention of 1977. Thus, the appellee, who desires to be both a minister and a delegate, must purchase the right to be a delegate by giving up his right to continue to be a minister. The disqualification imposed upon the ap-pellee is as much a burden, a penalty, as would be a fine or imprisonment imposed upon him for being a minister. It forces the appellee to make a choice between his right to be a minister and his right to participate in his state government as a delegate to the Constitutional Convention, both of which rights are, in my opinion, guaranteed by the First and Fourteenth Amendments. Thus, the statute confronts the appellee with the necessity of making the kind of choice which the Supreme Court held to be impermissible in Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963). In that case the South Carolina statute forced the citizen to choose between her right to receive unemployment benefits and her right to practice her religion by keeping Saturday as the Sabbath. Pertinent here is the following statement of the Court:

“The ruling forces her to choose between following the precepts of her religion and forfeiting benefits, on the one hand, and abandoning one of the precepts of her religion in order to accept work, on the other hand. Government imposition of such a choice puts the same kind of burden upon the free exercise of religion as would a fine imposed against appellant for her Saturday worship.” 374 U.S. at 404, 83 S.Ct. at 1794.

But, does being a minister constitute an exercise of religion protected by the First Amendment? I should have thought that there could be no question that it does. However, the majority dispute that conclusion. It is not denied that one who performs the customary functions of a minister is exercising his religion, but it is asserted that one dedicated to such service may, because of that dedication, be barred from serving as a constitutional convention delegate, as a necessary means of maintaining “the separation of Church and State.”

Such necessity is not evident to me. The national government and the 49 other states get along very well without such a disqualification of ministers. The First Amendment merely prohibits laws respecting the establishment of religion by government and laws which would prohibit the free exercise of religion; it does not require the “separation of Church and State” in all other respects. Zorach v. Clauson, 343 U.S. 306, 72 S.Ct. 679, 96 L.Ed. 954 (1952). Particularly, it does not, in my view, prohibit a religious leader from participating in his government upon the same terms as other citizens, nor a government official from taking an active, even a leadership, role in a religious organization.

I think that the majority has misinterpreted and misapplied the decision in Everson v. Board of Education of Ewing Tp., 330 U.S. 1, 67 S.Ct. 504, 91 L.Ed. 711 (1947). I have no quarrel with the quotation from that opinion that:

“Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa.” 330 U.S. at 16, 67 S.Ct. at 512.

However, I do not understand that statement to mean that an official of State or Federal government, in his capacity as a private citizen, is prohibited from participating in religious affairs or that a member or leader of a religious organization is forbidden from participating, as a private citizen, in his State or Federal government. To the best of my knowledge, the decision of the Court today is the first to hold to the-contrary.

No doubt, Tennessee is free to go further in its efforts to insure “the separation of Church and State” than the First Amendment has gone; but, clearly it is circumscribed in that endeavor by the strictures of the First and Fourteenth Amendments. These Amendments require that a law which would restrict, diminish or burden the right to freely exercise one’s religion can be justified only by “the gravest abuses, endangering paramount interests.” Sherbert v. Verner, supra, 374 U.S. at 406, 83 S.Ct. at 1795; Thomas v. Collins, 323 U.S. 516, 530, 65 S.Ct. 315, 89 L.Ed. 430 (1945).

In my view, the majority opinion advances no such justification for this statute. I find no weight in the argument that ministers, as candidates and as delegates, would have an undue advantage over other candidates and delegates, but, even if this were true, it is an advantage which the State has no compelling interest in preventing.

Nor do I agree that the disqualification imposed by this statute is a necessary means of maintaining permissible “separation of Church and State,” of preventing “an establishment of religion.” If the ap-pellee should persuade a majority of his fellow delegates to propose an amendment to the Constitution which would infringe upon religious liberty and if the electorate of the state should ratify such amendment, still the courts of this state and the federal courts would stand ready, willing and able to strike it down before any harm could occur.

Finally, the fear that religious strife would be fomented by the candidacy of ministers is equally unpersuasive. I am not aware of any basis for such a fear.

The same lack of necessity for this statute as a means of protecting a paramount or compelling state interest which causes it to fail when tested by the First Amendment likewise compels the conclusion that it invidiously discriminates against ministers and, thus, violates appellee’s right to equal protection of the law under the Fourteenth Amendment. See In Re Summers, 325 U.S. 561, 65 S.Ct. 1307, 89 L.Ed. 1795 (1945); Williams v. Rhodes, 393 U.S. 23, 89 S.Ct. 5, 21 L.Ed.2d 24 (1968). No excuse, other than those hereinabove found to be wanting, is offered for denying to ministers the right to serve as delegates to the Constitutional Convention of 1977.

I would hold that this statute fails to pass muster under both the First and Fourteenth Amendments and affirm the decree of the Chancellor.

      . Matthew 22:21.

      . In contrast with Reynolds v. U. S., 98 U.S. 145, 25 L.Ed. 244 (1879), where a statute prohibiting polygamy collided with Mormon belief in duty of males to practice polygamy; and Prince v. Commonwealth of Massachusetts, 321 U.S. 158, 64 S.Ct. 438, 88 L.Ed. 645 (1943), where statute prohibiting sale of periodicals etc., in public places by girls under eighteen years of age collided with the Jehovah’s Witness belief that it was a religious duty to perform such work.

      . As in West Virginia Board of Education v. Barnette, 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943) where state action required school children to salute the flag, action contrary to the religious beliefs of appellees therein. The state action was invalidated with strong emphasis upon the fact that appellee’s religious belief did not collide with rights asserted by any other individual.

      . See, Tennessee Constitution Article 2, §§ 9, 10, 25 and 26; Article 6, § 7; Article 9, § 1, Article 10, § 3 and T.C.A. §§ 8-1801, 1803; § 39-3219 and § 40-2714.

      . The majority opinion speaks, throughout, as if we were determining the validity under the U.S. Constitution of Art. IX, Sec. I, Constitution of Tennessee. For the sake of clarity, I will speak only in terms of the statute before us.

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


text:
    Terry L. OVERTURF, Petitioner, v. STATE of Tennessee, Respondent.
    Supreme Court of Tennessee.
    March 14, 1977.

      Carter Schoolfield, John B. Taylor, Chattanooga, for petitioner.
    R. A. Ashley, Jr., Atty. Gen., J. Harvey Cameron, Asst. Dist. Atty. Gen., South Pittsburg, Etrula R. Trotter, Asst. Atty. Gen., Nashville, Thomas J. Evans, Chattanooga, for respondent.
   OPINION

HENRY, Justice.

This case involves a conviction on charges of automobile larceny and joyriding. We granted certiorari primarily for the purpose of considering and clarifying the procedures attendant to the proper use of the wayside bill of exceptions in a criminal trial. Related to this issue are several other procedural questions regarding a criminal defendant’s right to a directed verdict in a case where the evidence is, at best, marginal.

I.

Petitioner, Terry L. Overturf, along with a co-defendant, Hubert Dewayne Hargis, was indicted on charges of automobile larceny and joyriding. Specifically, the indictment charged that the defendants did “felo-niously take, steal, and carry away, One (1) 1971 Volkswagen automobile . . . , the personal property of Edna Harris. . .” (Emphasis supplied).

Petitioner offered no proof at the trial. Instead, he moved for a directed verdict pursuant to § 40-2529, T.C.A. at the close of the State’s case and again at the conclusion of his co-defendant’s case. Both motions were denied and, as a result, petitioner was convicted and sentenced to not less than three (3) nor more than five (5) years in the penitentiary. In an order dated 20 January 1975, the trial court overruled petitioner’s motion seeking a directed verdict of acquittal, but sustained his motion for a new trial, stating “that the evidence in this case, is insufficient to warrant a conviction. . ” A duly authenticated and timely filed wayside bill of exceptions was made a part of the record of these proceedings.

Subsequently, petitioner was again tried, his “Plea of Former Jeopardy” having been overruled by the trial court, and on 30 April 1975 he received a second conviction with a corresponding three (3) year indeterminate sentence. During the course of his second trial petitioner was again unsuccessful in seeking a directed verdict of acquittal based upon the sufficiency of the State’s proof. At the conclusion of this second trial, petitioner’s “Motion for New Trial and/or Directed Verdict” was overruled.

On appeal, petitioner asserted that the trial court erred in refusing to grant his motion for a directed verdict during the first trial. The Court of Criminal Appeals, Judge Galbreath dissenting, Judge Russell concurring in results only, held that petitioner’s assignment directed to the sufficiency of the evidence in the first trial was not properly before that court on appeal, since it had not been specifically assigned as error in the second motion for new trial.

Petitioner contends that his wayside bill of exceptions made this alleged error in the first trial a part of the case on appeal. Moreover, it is argued that a directed verdict in the first trial was mandatory in light of the trial judge’s statement in his order granting the first motion for new trial that “the evidence ... is insufficient to warrant a conviction.”

II.

Before discussing the specific issues presented by the instant case, we deem it appropriate to consider, generally, the nature of a wayside bill of exceptions and to clarify the proper procedures attendant to its use. It should be noted at the outset of this discussion that the procedures involving the use of a bill of exceptions, or wayside bill of exceptions, in criminal cases are identical to those pertaining to civil proceedings. See § 40-3404, T.C.A. Similarly, the form and contents of a wayside bill of exceptions are virtually identical to those of an ordinary bill of exceptions, the distinction being that the wayside bill refers to an earlier stage in the trial proceedings, or to a former trial.

As stated in Higgins and Crown-over, Tennessee Procedure in Law Cases § 1895, 748 (1937):

[a] wayside bill of exceptions may be defined as a partial bill of exceptions since it does not embrace a history of the entire case. It is a bill that is taken for the purpose of preserving the history of what took place at an antecedent or a particular stage of the case, or at a term other than the trial term.

Essentially, the purpose of a wayside bill of exceptions is to preserve a record of the first trial proceedings, in the event that a party is unsuccessful after a subsequent trial and desires to seek appellate review with respect to specific action taken by the trial court in the previous trial. Caruther’s History of a Lawsuit § 441, 500 (8th ed. 1963).

A wayside bill of exceptions is proper, for example to preserve the action of the trial judge on the first trial in overruling the movant’s motion for a directed verdict. By using a wayside bill of exceptions this, and all other errors arising in the first trial, can be assigned as error and considered on appeal. See Oliver Mfg. Co. v. Slimp, 139 Tenn. 297, 202 S.W. 60 (1918); Barnes v. Noel, 131 Tenn. 126, 174 S.W. 276 (1914). The action of the trial court in granting a new trial is also subject to review by use of a wayside bill of exceptions, provided, of course, the wayside bill contains all of the evidence heard on the previous trial and has been properly filed. Higgins and Crownover, supra, § 1897, 749. In addition, there are numerous other situations in which the use of a wayside bill of exceptions is necessary in order to properly raise an issue on appeal.

The proper procedure regarding the use of a wayside bill of exceptions on appeal is most aptly described in the following excerpt from Caruther’s History of a Lawsuit § 441, 500 (8th ed. 1963):

Where a wayside bill of exceptions has been taken and the proceedings on a former trial thus made a part of the record, when the case finally comes before the appellate court on appeal in error or writ of error from the final judgment, the appellate court will first examine the record in the first trial independently and separately upon its own bill of exceptions. (Emphasis supplied).

This means that where two bills of exceptions are presented on appeal the wayside bill of exceptions must be reviewed first, and without reference to the subsequent bill of exceptions. 2 Gibson’s Suits in Chancery § 1278, 639 n.35 (5th ed. 1956). See also Howell v. Wallace E. Johnson, Inc., 42 Tenn.App. 15, 298 S.W.2d 753 (1956); City of Nashville v. Fox, 6 Tenn.App. 653 (1928). Any other procedure would defeat the very purpose of the wayside bill of exceptions by allowing the appellate court to consider the lower court proceedings without regard to their proper sequence.

In outlining the correct procedure applicable under an early version of Section 27-108 et seq., T.C.A., which authorized the use of a bill of exceptions to the action of the trial court in granting a new trial, the Tennessee Supreme Court in Railroad v. Scott, 87 Tenn. 494, 11 S.W. 317 (1889), presented the following analysis of the wayside bill:

[WJhen the case finally comes before this Court on appeal from the final judgment, at the succeeding trial, [the correct practice is] to first examine the record of the first trial, so far as it concerns the action of the court in granting the new trial. If the trial judge has committed no error in allowing such a new trial (and very much is necessarily left to his decision, especially where he is dissatisfied with the verdict,) this Court will refuse to disturb this action thereon, and will pass to the consideration of the record of the second trial.
If, on the other hand, the trial judge has committed manifest error in setting aside the first verdict, this Court will enter judgment on such verdict, without looking to the record of the succeeding trial or trials. (Emphasis supplied). 87 Tenn. at 496, 11 S.W. at 318.

Thus, as the author of the Comment entitled, The Bill of Exceptions in Tennessee, 25 Tenn.Law Review 246, 259 (1958), explains:

[T]he wayside bill . . . offers a device whereby the proceedings of the first trial may be preserved, receiving priority on appeal over the transcripts and records of subsequent trials. The court can dispose of the case on the record of the first trial and may not be required to consider questions arising on the record of a subsequent trial.

We, therefore, re-affirm the previous decisions of this Court relevant to the proper procedures for using the wayside bill of exceptions, and hold that the procedure outlined supra, is the correct method of handling a wayside bill of exceptions on appellate review.

In the present case the Court of Criminal Appeals held that petitioner’s assignment within his second motion for new trial relating to errors which occurred at his first trial was insufficient, because the second new trial motion failed to specifically refer to the alleged errors occurring at the previous trial. In light of the foregoing discussion concerning the correct procedures for using the wayside bill of exceptions, the Court of Criminal Appeals’ analysis is clearly incorrect. By filing a wayside bill of exceptions with respect to the first trial, petitioner preserved and made a part of the proceedings in this case on appeal his assignments of error relevant to that previous trial. His original motion for new trial relating to the wayside bill of exceptions remains just as viable on the present appeal as his subsequent motion for new trial relating to the bill of exceptions of his second trial.

III.

Having discussed the procedures attendant to the proper use of the wayside bill of exceptions, the question then becomes whether the trial judge erred in refusing to direct a verdict at the close of petitioner’s first trial?

This critical issue has not been addressed by the Court of Criminal Appeals. We, therefore, remand this action to that court for its consideration of this question.

Reversed and remanded.

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

      . Petitioner’s motion for a new trial and/or a directed verdict of acquittal does not appear in the Technical Record, although it is inferred from the trial court’s “Order Sustaining Motion for New Trial” that such a motion was properly before that court.

      . Included among such circumstances are the following: a mistrial; the granting or denial of a plea in abatement; the granting or denial of a change of venue; the granting or denial of an application for a physical or mental examination of a party; the granting or denial of a severance; or any other matter occurring in the previous trial which involves a consideration of evidence. See Higgins and Crownover, Tennessee Procedure in Law Cases § 1896, 749 (1937). See also 25 Tenn.Law Review 246, 258 (1958).

      . Tenn.Public Acts of 1875, Ch. 106 codified at Mill. •& V. Code (1884) §§ 3836, 3837.


author: FONES, Justice.

text:
    STATE of Tennessee ex rel. Nathaniel POLIN and Jay D. Harbison et al., Appellants, v. Melvin HILL et al., Appellees.
    Supreme Court of Tennessee.
    March 14, 1977.
    R. Thomas Stinnett, Stone & Hinds, P. C., Knoxville, for appellants.
    W. W. Kennerly, Kennerly, Montgomery, Howard & Finley, Knoxville, Tenn., R. B. Hailey, Hailey, Waters, Jarvis, & Sykes, Sevierville, for appellees.
   OPINION

FONES, Justice.

In this action for the writ of mandamus the issue is whether or not a municipality can refuse issuance of a license pursuant to the State Business Tax Act, T.C.A. § 67— 5801 et seq. on the grounds the applicant was in violation of one or more municipal ordinances.

The complaint filed by four (4) relators identifies them as having been engagfed in business in Gatlinburg for several years pri- or to the events giving rise to this suit. The substance of the complaint is that each had tendered the proper amount of the tax prescribed by the Business Tax Act to the official of Gatlinburg charged with the responsibility of collecting said tax and issuing the license; that said official refused to issue either of them a license on the stated ground that their businesses would have to be relocated.

Defendants filed an answer admitting the refusal to issue licenses to relators, and affirmatively plead facts said to constitute a violation of Ordinance 330, and a violation. of a zoning ordinance; that Ordinance 330 prohibits any activities that interfere with the normal use of adjacent sidewalks and the zoning ordinance prohibited the location of any business within ten (10) feet of the Parkway sidewalks.

Relators filed a written motion for judgment on the pleadings, pursuant to Rule 12.03 T.R.C.P. That motion was overruled, the case was tried and a decree entered in favor of one relator and against the other three. The findings of the trial judge stated in the decree are, merely, that sufficient cause was not shown by the city to refuse issuance of a license to relator Polin, but sufficient cause was shown as to the other relators.

The learned trial judge was in error in refusing to grant the motion for judgment on the pleadings. No specific assignment of error is directed to that action, but the assignments of error adequately invoke the same legal principles upon which said motion should have been decided in favor of relators.

The Business Tax Act codified in Title 67, Chapter 58 T.C.A. imposes taxes upon the vocations, occupations and businesses enumerated therein and authorizes each county and/or incorporated municipality to levy and collect, from businesses located therein, a privilege tax in an amount not to exceed the rate provided in the Act, a portion of which is to be forwarded to the State. It provides a comprehensive scheme for the taxation of business privileges.

Tennessee Code Annotated § 67-5819 provides as follows:

“67-5819. License —Issuance —Exhibition. — Upon receipt of the minimum tax prescribed by this chapter, together with penalties and interest prescribed in this chapter if such payment is delinquent, it shall be the duty of each collector to issue a license to the taxpayer. It shall be the duty of each taxpayer to exhibit the license so received.”

The only condition precedent to the issuance of the license is payment of the tax and no grounds are provided upon which to predicate a refusal to issue said license.

Defendants asserted as authority for refusing to issue business licenses to relators, Section 5 of Ordinance # 330. That section provides as follows:

“SECTION 5. That any officer or employee of the City of Gatlinburg charged with the responsibility of issuing privilege licenses is hereby authorized to refuse to issue a Privilege license to any applicant when it is apparent that the contemplated activities under the privilege license for which application is made, clearly involve activities made unlawful by this ordinance.”

In Robinson v. Mayor of Franklin, 20 Tenn. 156 (1839), it was held that “A corporation can pass no by-law inconsistent with the constitution and laws of the state.” 20 Tenn. at 160, 161.

One of the issues in State ex rel. Nashville Pure Milk Co. v. Town of Shelbyville et al., 192 Tenn. 194, 240 S.W.2d 239 (1951) was whether Shelbyville could refuse to issue a permit for the sale and distribution of milk within its corporate limits to a milk producer who had complied with the general law of the State but who had failed to pass the more stringent requirements of a town ordinance. This Court responded to that issue in part as follows:

“The governing authority of the Town of Shelbyville exercises its police power pursuant to the express authority of the State. Any ordinance which it might enact relating to the inspection of dairies, and milk processing plants, must be reasonable and not in conflict with the general law. There could be no valid prohibition of the sale and distribution of articles of legitimate commerce within the municipality, which had been approved by duly constituted authority of the State and U.S. Public Health Service.” 192 Tenn. at 203, 240 S.W.2d at 243.

After the Shelbyville decision the Legislature amended the milk laws expressly granting cities the power to make ordinances requiring tests more stringent than the general law. In State v. Mayor and Aldermen of Town of Fayetteville et al., 196 Tenn. 407, 268 S.W.2d 330 (1954), we passed approvingly on said amendment with the following caveat:

“The Legislature has granted to the city the power to enact ordinances to guard the public health and by the amendment here in question granted the city the right to make these restrictions greater than those required in the State as a whole. But in doing so the city may not pass an ordinance which ignores the State’s own regulatory acts, or deny rights granted by the State or grant rights denied by the State and thus in effect nullify the State law.” 196 Tenn. at 415, 416, 268 S.W.2d at 334.

Section V of Ordinance 330 cannot be used to deny relators the right to procure a license required by the Business Tax Act, a state law of general application. Nor can the zoning ordinance be enforced by the indirect method employed here.

Enforcement of these ordinances must be by direct proceedings as prescribed by law wherein the possession or non-possession of the privilege license required by T.C.A. § 67-5819 is as irrelevant as compliance or non-compliance with said ordinances are to this proceeding.

The judgment of the trial court is reversed. This cause is remanded to the Sevier County Circuit Court for the entry of a decree granting the relief prayed for in the complaint. Costs are adjudged against the City of Gatlinburg.

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


author: FONES, Justice. HENRY, Justice,

text:
    STATE of Tennessee, Petitioner, v. Raymond CHANDLER and James Kenneth Dearing, Respondents.
    Supreme Court of Tennessee.
    March 14, 1977.

      Brooks McLemore, Atty. Gen., Richard Lodge, Asst. Atty. Gen., Nashville, Alfred C. Schmutzer, Jr., Dist. Atty. Gen., Sevier-ville, for petitioner.
    R. W. Brooks, Holt, Gilreath, & Brooks, Sevierville, Perry P. Paine, Jr., Felknor, Paine, Delozier & Cunningham, Maryville, for respondents.
   OPINION

FONES, Justice.

Defendants were indicted for larceny of four (4) heifers and concealing or aiding in concealing four (4) heifers. The jury found them guilty of the lesser charge and fixed their punishment at not less than three (3) nor more than (5) years.

The Court of Criminal Appeals reversed and remanded for a new trial. The plurality opinion found that defendants were apparently arrested illegally and subjected to a lengthy and apparently illegal incarceration and that statements made by defendants while so held were inadmissible under the dictates of Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975). One member of that Court, in a concurring opinion, agreed that defendants may have been detained improperly, did not agree that the arrest was illegal, but assuming that it was, expressed the view that the illegal arrest did not void the conviction. However, he concurred in the reversal. The other member of the panel dissented. We granted the State’s petition for the writ of certiorari.

I.

In Brown v. Illinois, supra, two officers who were investigating the murder of one Roger Corpus broke into Brown’s apartment, searched it, remained there lying in wait, and arrested Brown when he appeared, without a warrant or probable cause. He denied being Richard Brown and during the twenty (20) minute drive to the police station he was questioned about his identity and ownership of a 1966 automobile. He was taken to an interrogation room and given Miranda warnings. With the file before them the officers informed Brown that they knew of an incident that had occurred in a pool room when he, angry at being cheated at dice, fired a shot into the ceiling, that a bullet had been obtained from that ceiling and compared with bullets taken from Corpus’ body. At 8:45 p. m., exactly one (1) hour after the arrest at Brown’s apartment, he was asked whether he wanted to talk about the Corpus homicide. He responded in the affirmative and for the next twenty (20) to twenty-five (25) minutes he answered questions put to him by one of the officers while the other typed. The result was a two (2) page signed statement in which Brown acknowledged that he and one Claggett visited Corpus on the evening of the homicide and after a period of drinking and smoking marijuana, Claggett shot Corpus three (3) times through a pillow, using a .38 caliber revolver sold to him by Brown. At 9:30 p. m. the two officers, with Brown in custody, toured an area of Chicago searching for Claggett. After a stop at police headquarters to obtain a photograph of Claggett, he was observed crossing an intersection, arrested, and the four returned to the police station about 12:15 a. m. At 2:00 a. m. an assistant state attorney arrived, repeated Miranda warnings and obtained a second statement from Brown which was completed about 3:00 a. m. but Brown refused to sign it. At about 4:00 a. m. Brown made a telephone call to his mother and at 9:30 a. m. he was taken before a magistrate. The issue confronted was whether the statements were to be excluded as the fruit of the illegal arrest or were admissible because the giving of Miranda warnings sufficiently attenuated the taint of the arrest.

The Supreme Court analyzed the relationship between illegal arrests and subsequent confessions under the dictates of Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), and Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). They reaffirmed that statements rendered under such conditions involve both Fourth and Fifth Amendment issues; that Wong Sun requires that the statement be “sufficiently an act of free will to purge the primary taint” in addition to meeting the Fifth Amendment standard of voluntariness. Preliminary to establishing a three prong test, in addition to the Miranda warnings, the Court said:

“The question whether a confession is the product of a tree will under Wong Sun must be answered on the facts of each case. No single fact is dispositive. The workings of the human mind are too complex, and the possibilities of misconduct too diverse, to permit protection of the Fourth Amendment to turn on such a talismanic test. The Miranda warnings are an important factor, to be sure, in determining whether the confession is obtained by exploitation of an illegal arrest. But they are not the only factor to be considered.” 95 S.Ct. at 2261.

The additional factors are:

(1) The length of time between the arrest and the time the confession was made;
(2) The presence of intervening events between the arrest and confession, such as arraignment;
(3) The purpose and flagrancy of the official misconduct.

The burden is on the prosecution to establish admissibility. The Supreme Court’s conclusion and disposition of Brown is significant:

“The arrest, both in design and in execution, was investigatory. The detectives embarked upon this expedition for evidence in the hope that something might turn up. The manner in which Brown’s arrest was effected gives the appearance of having been calculated to cause surprise, fright, and confusion.
We emphasize that our holding is a limited one. We decide only that the Illinois courts were in error in assuming that the Miranda warnings, by themselves, under Wong Sun always purge the taint of an illegal arrest.” 95 S.Ct. at 2262, 2263.

ii.

The issues in this case are the admissibility of an incident involving defendant Dear-ing and an incident involving defendant Chandler. It would be inaccurate to characterize either incident as a confession. Neither occurred as the result of the usual and ordinary type of interrogation.

Before discussing the incidents at issue, the testimony with respect to the crime should be related. On the day of the trial, pursuant to motion, a severance was granted co-defendant Loveday and he testified for the State. In substance he related that Chandler knew of the Allen Farm and the three of them looked it over one night prior to the theft of the cattle; that on a Wednesday night preceding the Saturday on which they were arrested a U — Haul truck was obtained, they returned to the Allen Farm, drove four (4) heifers into the barn, through the loading shoot and into the U-Haul; that they parted company with Dearing later, as he was the one designated to sell the cattle; that on Thursday Dearing told him that he had sold the cattle for two hundred ($200) dollars and that he, Loveday, received his share, forty ($40) dollars, on Friday.

Chandler did not testify. Dearing testified that late on the Wednesday night of the theft, Loveday approached him at Dudley Hodge’s Place on Chapman Highway in Knox County and wanted to borrow a truck to move a deep freeze and a refrigerator; that he got a U — Haul truck from Clem-mer’s Texaco and turned it over to Charles Loveday and his father Pink Loveday about midnight; that between 1:30 a. m. and 2:30 a. m. they returned to Dudley Hodge’s Place with four (4) cattle and asked if he knew where he could sell them. He said he thought so and that he sold them to Glen Fraker for five hundred ($500) dollars. He denied that he had ever been to the Allen Farm and said that he did not know where it was.

Glen Fraker testified that he bought four (4) cattle from Dearing about 5:00 a. m. or 6:00 a. m. Thursday morning; that Dearing brought them to his place in a yellow moving van and he paid five hundred ($500) dollars by check; that someone called him and said the check was not good and he met Dearing at the bank and “was with him when he cashed it.” The cancelled check, dated August 29, 1974, payable to and endorsed by Dearing was made an exhibit. He told of two occasions when officers came by to inquire whether or not he had recently bought cattle. He asked if they could identify the cattle — they could not, but, “ . . . when they names over the name I knowed I had the four cattle. I pointed them out.” The record fails to reveal the date or time of the two visits.

Mrs. Allen testified and affirmed all remaining necessary elements of the crime.

On August 31, 1974, Sheriff Townsend arrested Charles Loveday and defendant Dearing and directed Officer James Segal to arrest defendant Chandler. The three (3) defendants were brought to the jail in Sevierville, promptly given Miranda warnings and executed written acknowledge-ments thereof. This occurred at 3:43 p. m. on Saturday. Testifying out of the presence of the jury, the Sheriff admitted that the arrests were made without warrants on charges of investigation of larceny of cattle; that the trial justice court was not open on Saturday but that defendants were formally charged and bond set on Tuesday, September 3, 1974, before Dearing agreed to show them where he took the cattle; that on Saturday he interrogated Dearing very briefly on two (2) occasions; that Dearing said he did not, “ . . . know anything about it, and he wanted to know what the other fellows said; ” that he was busy the next two days running down leads and did not see Dearing again until Tuesday on the trip to Fraker’s; that Loveday had told him where they “loaded” the cattle and where Dearing had let him out — at the Dempster Dumpster at Claxton School — on the way to sell the cattle — and implicitly but not explicitly, that they had discovered where and to whom Dearing had sold the cattle; that on Tuesday afternoon he sent Detective Kirby, “ . . . up to the jail to ask him if he wanted to go show us the cattle, where he sold the cattle?” Detective Kirby testified that upon posing that question, Dearing said “Sure” and freely and willingly accompanied the three officers to Fraker’s in Anderson County; that on the way Dearing commented on letting Love-day and Chandler out at the dumpster at Claxton School and requested that he be allowed to remain in the car out of Fraker’s sight for the stated reason that he did not want to confront his friend.

The admissibility of these events initiated by Detective Kirby’s single question was strongly resisted by counsel for Dearing. At a hearing out of the presence of the jury it was insisted that the arrest was without a warrant, the time of detention exceeded legal bounds, and that frequent and repeated interrogations occurred without any renewal of Miranda warnings.

The Sheriff further testified, under interrogation by the trial judge, that neither defendant said that he wished to remain silent or that they wanted a lawyer, or could not afford a lawyer and wanted one appointed; that they did not ask to be taken before a magistrate, be charged or dismissed, or have bond fixed; that they were allowed to make “their phone call” and that they did so. The Sheriff emphatically denied that any constant or repeated interrogation occurred during the three (3) day confinement over Labor Day Weekend.

Neither Dearing nor Chandler testified at the admissibility hearing and thus the State’s evidence stands completely uncon-tradicted.

The incident involving Chandler was related by Officer Segal who testified that Chandler was limping and on Sunday the following occurred:

“A.So then on the following . . I still didn’t ask him no questions the first day only just conversation, the next day, on Sunday, when I talked to him, uh I told him, you know some of the other things that compiled more information, and I said I’m not asking you for any statements, I’m just telling you about these things. So I told him about the cow kicking him on the leg, and he laughed, and he said, Man you got it. He said that’s right! ■
Q. What did his leg look like where the cow kicked him?
A. It was . . it looked like about a half-moon circle on his . . right beside of his leg bone, and was maybe on the edge of the bone, in between his ankle and his knee.
Q. was he bruised?
A. Yes it was.”

III.

The record is silent as to the facts known to the Sheriff and his officers at the time of the arrests, without warrants, on Saturday, August 31, and being unable to pass on the question of probable cause, we must assume the arrests were illegal.

This case was tried on November 11, 1974. Brown v. Illinois, supra was decided June 26, 1975. The basic principles underlying admissibility of evidence tainted by an illegal arrest were well established in Wong Sun, but not the three prong test first enunciated in Brown.

The trial judge afforded defendants full opportunity of cross examination of the Sheriff and Detective Kirby and to present any proof they desired in support of the inadmissibility of said incidents. As stated, neither defendant testified, during the jury-out hearing. Dearing denied, in his testimony before the jury that he had at any time admitted participation in the theft of the cattle, but did not refute the Tuesday afternoon question of Detective Kirby, his answer or any event that occurred during the trip to the Fraker farm.

The trial judge expressly found that the actions of defendants, whether they be designated statements, declarations against interests, or confessions, were freely, voluntarily and knowledgeably given and that there existed no coercion, intimidation or force in any degree. Under settled principles, his determination in binding upon the appellate courts if there is any evidence to support it. Monts v. State, 218 Tenn. 31, 400 S.W.2d 722 (1966); Braziel v. State, 529 S.W.2d 501, (Tenn.Cr.App.1975).

Thus the illegal arrest and the detention from midafternoon on Saturday, over the Labor Day weekend stand alone to taint the admissibility of the two incidents in question. The casual impromptu and spontaneous circumstances under which they occurred purges the taint of the illegal arrests and detention. Unlike Brown, there is nothing to indicate, in design or execution, a motivation on the part of the Sevier County officers to surprise, frighten or confuse or coerce defendants.

In Wong Sun, the Supreme Court said: “We need not hold that all evidence is ‘fruit of the poisonous tree’ simply because it would not have come to light but for the illegal actions of the police. Rather, the more apt question in such a case is ‘whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.’ Maguire, Evidence of Guilt, 221 (1959).” 83 S.Ct. at 417.

The record in this case negates finding that the evidence in question was obtained by exploitation of the illegality. In our opinion, the responses and actions of Dear-ing and Chandler were acts of free will, unaffected by and purged of initial illegality.

IV.

We are in complete accord with the statement of the intermediate court that, “arrests should be made only when legal and incarceration carried out only with legal sanction.” We are as reluctant to decide any case in a manner that might diminish the force of that admonition as was the Court of Criminal Appeals to reverse these convictions where admittedly there was substantial evidence of guilt. The Courts of Tennessee must abide the dictates of Brown and Wong Sun. These convictions were unduly jeopardized by the failure to obtain warrants prior to arrest, or to prove the existence of probable cause and the failure to promptly take defendants before a magistrate.

The judgment of the Court of Criminal Appeals is reversed and the convictions of Dearing and Chandler are affirmed.

COOPER, C. J., and BROCK and HARBI-SON, JJ., concur.

HENRY, J., dissents.

HENRY, Justice,

dissenting.

I respectfully dissent.

The facts in this case are not in dispute, and are ably summarized in the majority opinion. However, I must differ from the majority’s view of the application to the situation presented here of the standards articulated in Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963) and Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975).

Both Wong Sun and Brown addressed the question of under what circumstances an illegal arrest would taint a subsequent confession, and render that confession inadmissible. Wong Sun answered that question in terms of a standard of free will somewhat higher than the traditional standard of vol-untariness. The vagueness of that standard led to some confusion, which the Supreme Court attempted to eliminate in Brown.

Under Brown, a confession obtained subsequent to an illegal arrest must satisfy the following criteria to be admissible. First, it must pass the “threshold requirement” of voluntariness, 422 U.S. at 604, 95 S.Ct. 2254, required of all confessions under the Fifth Amendment. However, this is not sufficient. A confession may be voluntary under the Fifth Amendment, and yet be tainted by the prior violation of the defendant’s Fourth Amendment rights. The question becomes, in the language of the Court, under what circumstances can that taint be purged, rendering the confession admissible. It is to determine the answer to this question that the factors set out by the Court in Brown are to be considered:

1) whether Miranda warnings were given
2) the temporal proximity of the arrest and the confession
3) the presence of any intervening circumstances
4) the purpose and flagrancy of the official misconduct.

No one factor provides a certain guide. One must balance the factors, and attempt to determine, in the final analysis, whether the illegal arrest was a proximate contributing cause of the confession.

When applying the rationale of Brown to the instant case, it must be remembered that the facts of the two cases are not precisely analogous. In Brown, the crucial issue was raised by an illegal arrest. Here, we must deal with the effects of both an illegal arrest and an illegal confinement. Thus, the factors that were deemed relevant in Brown are not necessarily so here. For instance, the Court in Brown noted that the amount of time between the illegal arrest and the subsequent confession was one criterion by which one might judge whether the taint had been purged. The greater that time, the more likely that the illegal arrest had a minimal effect on the subsequent confession. However, when one considers the effects of an illegal arrest in addition to those of an illegal confinement, it is apparent that this factor is placed on the other pan of the balance — the longer that confinement, the greater the chance that it to some extent served to induce the confession.

Thus, one cannot base a decision in this case on a consideration of precisely the same factors as were considered in Brown. However, the ultimate question to be answered is the same as that in both Brown and Wong Sun: Is the causal connection between the illegal arrest and confinement and the subsequent statements sufficiently tenuous so that the illegal acts can be said not to have been a proximate contributing cause of the statements? I believe that it is not, and thus that the defendant’s statements should not have been admitted at trial.

I am compelled to reach this conclusion by the very nature of the improper police procedure in this case. The defendants’ statements were made after a prolonged period of illegal confinement. Even if it is granted that the police committed no coercive acts, the defendants were subjected to “the compulsion inherent in custodial surroundings.” Miranda v. Arizona, 384 U.S. 436, 458, 86 S.Ct. 1602, 1619, 16 L.Ed.2d 694, 714 (1966). We need not determine whether the statements were obtained by the active “exploitation of the illegality” by the police. The mere fact of the illegal confinement was inherently coercive of the defendants’ will.

This is not to say that an illegal arrest or confinement serves to taint any and all subsequent statements by a defendant. Later events, such as an arraignment or hearing, may sufficiently attenuate the effects of the prior illegal confinement so as to render any subsequent statements made by the defendant admissible.

However, on the facts of this case, that question does not present itself, and we need not deal with it here. The defendants’ statements were made prior to their arraignment, and there were no events which even arguably mitigated the effects of their illegal confinement. I would hold any statements made in the course of that confinement inadmissible.

The foregoing is, I believe, more than sufficient cause to affirm the judgment rendered by the Court of Criminal Appeals. There is, however, a more compelling reason for doing so.

The majority is critical of the procedure employed by the police in this case, and justifiably so. The actions complained of constitute a clear violation of the defendants’ constitutional rights, as well as of the explicit command of T.C.A. Sec. 40-604. I agree with the majority that those actions are deserving of censure. I do not believe that mere censure is sufficient.

The issue presented here goes beyond the question of whether the statements obtained in the course of an illegal confinement were voluntary, or whether the taint of the improper procedure was purged. Those questions turn primarily on the detriment suffered by the defendant. Of greater import is the question of what effect the decision reached in this case will have on subsequent police procedure.

The exclusionary rule does not serve merely to minimize the injury suffered by a particular defendant as a result of illegal police procedure. “Its purpose is to deter— to compel respect for the constitutional guaranty in the only effectively available way — by removing the incentive to disregard it". Elkins v. United States, 364 U.S. 206, 217, 80 S.Ct. 1437, 1444, 4 L.Ed.2d 1669, 1677 (1960). It is unfortunate that the courts have no better way to deter police conduct inconsistent with what we believe to be the standards necessary to a free society. In many cases, this may result in a windfall for the defendant. That is regrettable, but unavoidable. For us to do otherwise requires that we implicitly both sanction and encourage illegal acts by the police. “We have to choose, and for my part I think it a less evil that some criminals should escape than that the Government should play an ignoble part.” Olmstead v. United States, 277 U.S. 438, 470, 48 S.Ct. 564, 575, 72 L.Ed. 944, 953 (1928), (Holmes, J., dissenting).

To the extent that this decision serves to encourage acts by the police such as took place in this case, this Court plays such a part, and contributes, however slightly, to the erosion of those freedoms we are sworn to protect.

I will not be party to it.

I would affirm.


text:
    Lawrence SMITH, Petitioner, v. STATE of Tennessee, Respondent.
    Supreme Court of Tennessee.
    March 14, 1977.

      Jesse 0. Farr, Chattanooga, for petitioner.
    R. A. Ashley, Atty. Gen., David L. Ray-bin, Asst. Atty. Gen., Nashville, Edward E. Davis, Dist. Atty. Gen., Jerry Sloan, Asst. Dist. Atty. Gen., Chattanooga, for respondent.
   HENRY, Justice.

We granted certiorari in this criminal action for the purpose of reviewing the action of the Court of Criminal Appeals in affirming petitioner’s conviction of selling a controlled substance under Schedule II, of the Drug Control Act, with punishment fixed at not less than seven (7) nor more than ten (10) years in the state penitentiary.

The only complaint which causes us any concern is the petitioner’s fifth assignment of error wherein he charges that the court’s instructions to the jury, relating to the burden of proof, were erroneous. These instructions were as follows:

The defendant pleads not guilty, and under his plea he is presumed to be innocent, and cannot be convicted until that presumption is overcome by proof, and his guilt established to your satisfaction beyond a reasonable doubt. By reasonable doubt is meant an honest misgiving on your part touching the guilt of the defendant arising out of the proof, and is such a doubt as reason entertains and sanctions as a substantial doubt. The law does not require absolute certainty in criminal cases, but moral certainty is required to establish the guilt of the defendant. (Emphasis supplied).

Specifically, petitioner complains of so much of these instructions as equates “reasonable” doubt with “substantial” doubt.

Perhaps the leading Tennessee case pertinent to this issue is Frazier v. State, 117 Tenn. 430, 100 S.W. 94 (1906), wherein the pertinent portion of the charge was as follows:

Where a reasonable doubt exists in the mind of the jury as to the guilt of the defendants, or either of them, of any one of the offenses charged, the defendants must have the benefit of that doubt, and they nor either of them should be convicted of any offense of which the jury entertains a reasonable and substantial and well founded doubt. (Emphasis supplied). 117 Tenn. at 453, 100 S.W. at 100.

The Court held this charge to be reversible error; however, it should be pointed out that the Court was very obviously concerned with the cumulative effect resulting from the reiteration of the words and phrases “well founded doubt” and “substantial doubt”. It should further be noted that the Court was also concerned with “the utter failure to refer to the doctrine of reasonable doubt in other parts of the charge where it should have been, . . .” 117 Tenn. at 465, 100 S.W. at 103.

The Trial Judge in the instant case, except to the extent above quoted, gave a most excellent and well reasoned charge to the jury, constantly reiterating the reasonable doubt standard.

In McCloudy v. State, 513 S.W.2d 192 (Tenn.Cr.App.1974), cert, denied July 15, 1974, the Court of Criminal Appeals, without setting out the charge, and without discussion, simply stated the problem and solution as follows:

Plaintiff-in-error next complains of the use of the phrase “substantial doubt” in explaining the concept of reasonable doubt to the jury. We have considered this alleged error in light of the charge as a whole and find that the jury was properly instructed. 513 S.W.2d at 195.

Thereafter, there came before another panel of the Court of Criminal Appeals, the case of Marshall v. State, 528 S.W.2d 823 (Tenn.Cr.App.1975), with certiorari denied by this Court as presently constituted, a case which arose in the same trial court as the instant case, wherein the Court used the phraseology “substantial doubt”. The Court affirmed the judgment but made the following pertinent comment.

We find no reversible error in the use of ‘substantial’, but in view of Frazier we think trial judges could well avoid the use of this term in defining reasonable doubt. 528 S.W.2d at 825.

In United States v. Atkins, 487 F.2d 257 (8th Cir. 1973), a charge equating reasonable doubt with substantial doubt came under the court’s scrutiny. The court said:

The objection made on this appeal is that ‘substantial’ doubt is not the equivalent of ‘reasonable’ doubt. We agree. Proof of guilt beyond a reasonable doubt would seem to require a greater evidentiary showing by the Government than proof of guilt beyond a substantial doubt. For this reason, we do not approve of the alternative statement that reasonable doubt means a substantial doubt. 487 F.2d at 260.

The Atkins court by footnote 2 of its opinion quotes the following pithy comment from the concurring opinion of Justice Seiler of the Missouri Supreme Court in State v. Davis, 482 S.W.2d 486, 490 (Mo.1972).

‘Reasonable’ and ‘substantial’ are not synonymous, as can be seen by referring to any of the standard dictionaries. The point was well put by counsel in argument recently where he pointed out that if one had to undergo a serious operation and were querying the doctor as to the prospects for a successful outcome, how differently the person would feel if the doctor told him there was only a reasonable chance of success as opposed to being told that there was a substantial chance of success. Ibid.

Other pertinent cases are United States v. Bridges, 499 F.2d 179 (7th Cir. 1974), and United States v. Alvero, 470 F.2d 981 (5th Cir. 1972).

We think that there is a significant difference between “reasonable” doubt and “substantial” doubt. The word substantial, according to Webster’s New World Dictionary (1961), means “real; actual; true; strong; solid; firm; ample; large; or of substantial value”. We think that when consideration is given to the definition and ordinary meaning of this word, there is little doubt but that its use tends to lessen the State’s burden and as a natural corollary to increase the burden upon the defendant. We accept the reasoning and the import of Frazier, supra, and embrace the clear instructions of the Court of Criminal Appeals in Marshall. We hold this to be error, but not prejudicial, under the facts of this case. In the future, juries in criminal cases shall not be instructed in such a manner as to indicate that reasonable doubt is in any sense synonymous with substantial doubt.

Affirmed.

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

      . We have reviewed the record and find all remaining assignments of error to be without merit.