text:
    VANDERBILT UNIVERSITY, Petitioner, v. Burt Eugene STEELY, Respondent.
    Supreme Court of Tennessee.
    April 10, 1978.
    Bass, Berry & Sims, Frank C. Gorrell, Jay S. Bowen, Nashville, for petitioner.
    Kelly, Jones & Vest, William P. Jones, Hendersonville, for respondent.
   OPINION

COOPER, Justice.

We granted certiorari in this case to review a decision by the Court of Appeals in which that court affirmed a judgment against the petitioner, Vanderbilt University, in a personal injury action brought by the respondent, Burt Steely. The sole issues before us are whether the trial judge erred in giving the jury a supplemental charge designed to urge it to return a verdict, and, if so, whether that error materially affected the results of the trial, so as to require that the verdict be set aside.

The respondent brought this action to recover for injuries that he claims to have suffered when he fell down a flight of stairs in one of the buildings on the Vanderbilt campus. The details of his claims and of the proof presented are not material to our consideration of this ease. Suffice it to say that the issues at trial were hotly contested, and the evidence was subject to various interpretations. After the jury had deliberated for several hours, it returned to report that it was unable to reach a verdict. The trial judge then gave the supplemental charge that is at issue, and which is set out in full in the appendix to this opinion. After further deliberation, the jury returned a verdict for the respondent in the amount of $28,000.00. On appeal, the Court of Appeals affirmed.

The use of a supplemental ‘‘dynamite” charge much stronger than that given in the instant case was long sanctioned in Tennessee. See, e. g., Simmons v. State, 198 Tenn. 587, 281 S.W.2d 487 (1955). However, that rule was changed in Kersey v. State, 525 S.W.2d 139 (Tenn.1975), which set forth strict guidelines governing the form such a charge may take, and the circumstances in which it may be given. Ker-sey held that a supplemental charge may be given only in the form specified in that opinion, and then only when it was given as part of the main charge. Strict adherence to the dictates of Kersey is expected, and variations are not permitted. Kersey v. State, supra, at 145.

In the instant case, there is no doubt but that the trial judge violated the rule laid down in Kersey. First, he did not use the charge mandated by Kersey, but his own version of it. Secondly, he gave his charge as a supplemental charge when it had not been included in the main charge. As we noted in Kersey, this was “an error of the first magnitude.” Kersey v. State, supra, at 144.

However, this determination alone does not dispose of the case. An error in the charge of the judge to the jury is not grounds for reversal unless it affirmatively appears that the error has affected the results of the trial. T.C.A. § 27-117. Upon a considered review of the entire record of the cause, we are of the opinion that the supplemental charge was a material factor in persuading the jury to return a verdict, and that the variation between that charge and the Kersey charge was a material factor in its having that effect. In particular, the charge given informed the jury that, should they fail to agree, a new trial would be necessary, and emphasized the waste of time, money, and effort that this would entail. It contains language that could be interpreted as implying that the jurors had a “duty” to agree. Finally, the entire charge was improperly emphasized by being given- for the first time only after the jury had been deadlocked for several hours. We believe that these departures from the Ker-sey standard, when taken collectively, worked to the material prejudice of the petitioner.

The judgment in favor of respondent is reversed and the case is remanded for a new trial. Costs of the appeal are adjudged against respondent, Burt Steely.

HENRY, C. J., and FONES and BROCK, JJ., concur.

HARBISON, J., not participating.

APPENDIX

Ladies and Gentlemen of the jury, the verdict when reported to the Court must be unanimous which means that it must be the conscientious individual decision of each individual member of the jury arrived at by him after due consideration of all of the evidence which has been admitted for the consideration of the jury, the argument of counsel, the law explained to the jury by the Court, and the expressions of fellow jurors, for that is the purpose of deliberation that each juror may hear and give due consideration to the expressions of his fellow jurors for finally making up his own mind. That is to say, each juror should go into the jury room with an open mind to the extent that he is willing to listen to his fellow jurors and to be influenced by their expressions and opinions, to the extent that it is proper for him to be influenced.

Now in the present case you have reported to me that you have not yet been able to agree. This does not mean that you will not be able to agree, because I shall ask you to continue your deliberations in an effort to agree on a verdict. While it is the duty of each juror to adhere to his conscientious convictions, and not violate his conscience in rendering a verdict, nevertheless it is the duty of each and every juror to agree upon a verdict if he can conscientiously do so.

I call to your attention that the trial of this case has consumed several days, occupying the time of the Court, counsel, the parties and the jury. If the jury is unable to agree upon a verdict in this case, all the time and expense devoted to this trial will be lost, because it will be necessary to try the case again to another jury. For this reason, it is highly desirable that you should reach a verdict in this case if you can conscientiously do so.

I recognize that the issues in this case are not easy to decide, otherwise you would have been able to agree upon a verdict before now. On the other hand, if this case is difficult for you to decide, there is every reason to believe that it would be equally difficult for the next jury to decide so that we would not necessarily gain anything by discharging this jury and trying the case again to another jury which would have the same difficulties that you are experiencing even now.

In all of the affairs of life we are influenced by the opinions held by your fellow man. Frequently, we entertain various opinions and when we find that they are not in accordance with the prevailing opinions of our friends, we are inclined to re-examine our opinions and sometimes to change them simply because of the influence of the opinion of others. An opinion should not be abandoned lightly, that is no juror should simply give up his opinion of the case because another juror feels otherwise. On the other hand, each and every juror should consider the differing opinions of his fellow jurors and be influenced by those opinions to such extent as he conscientiously feels it would be proper for him to be influenced. I call your attention to the fact that each and every one of you have heard the same evidence in this case, and it is highly probable and to be usually expected that twelve men listening to the same evidence may, after deliberation, reach the same conclusion from the evidence. It is for this reason that I am still hopeful by further discussion of this case among yourselves, you may be able to arrive at a verdict.

While I have urged you to arrive at a verdict if you can conscientiously do so, and while I have urged you to consider the expressions of your fellow jurors to such extent as you can conscientiously do so, nevertheless, I repeat that no juror should abandon an opinion which he conscientiously holds unless he can do so with the full consent of his conscience, that is to say, if by further deliberation you should reach a verdict, it must be the conscientious, individual decision of each individual member of the jury arrived at without violation of his conscience.

      . The verdict must represent the considered judgment of each juror. In order to return a verdict, it is necessary that each juror agree thereto. Your verdict must be unanimous.
      It is your duty, as jurors, to consult with one another and to deliberate with a view to reaching an agreement, if you can do so without violence to individual judgment. Each of you must decide the case for yourself, but do so only after an impartial consideration of the evidence with your fellow jurors. In the course of your deliberations, do not hesitate to reexamine your own views and change your opinion if convinced it is erroneous. But do not surrender your honest conviction as to the weight or effect of evidence solely because of the opinion of your fellow jurors, or for the mere purpose of returning a verdict.


source: Caselaw Access Project

author: COOPER, Justice.

license: Public Domain

text:
    Ernest E. WILSON and Beulah Wilson, Petitioners, v. Neva Belle Bailey JOHNSON, Respondent.
    Supreme Court of Tennessee.
    April 10, 1978.

      Tom H. Williams, Jr. Nashville, for petitioners.
    Keaton, Turner & Peluso, Hohenwald, for respondent.
   OPINION

COOPER, Justice.

The petition for certiorari was granted in this case to review the action of the Court of Appeals in affirming an order of the Chancery Court of Lewis County for the sale of real property of Ernest E. Wilson and Beulah Wilson.

The Wilsons are indebted on a promissory note in the amount of $25,000.00, payable to Georgia Sibyl Johnson at the rate of $200.00 per month. Payment of the note is secured by a deed of trust on the Wilson property.

Neva Belle Bailey Johnson filed an action in the Chancery Court of Lewis County against the Wilsons, Georgia Sibyl Johnson, and Charles Moody Johnson, the former husband of the plaintiff, to have payments on the promissory note made to her in satisfaction of a judgment she held against Mr. Johnson. Plaintiff’s theory was that her former husband had loaned the Wilsons $25,000.00, and had had the deed of trust drafted so as to fraudulently indicate a non-existent loan from Georgia Sibyl Johnson, Mr. Johnson’s sister, to the Wilsons. The Johnsons made no defense to the action, being content to have default judgments entered against them.

In the course of proceedings, on motion of the plaintiff, the chancellor ordered the Wilsons to make payments to the clerk and master as they became due on the note, and ordered the Wilsons to file the note with the clerk and master.

The Wilsons failed to make the required payments on the note and, on motion of Mrs. Johnson, the chancellor ordered the Wilson property sold.

The Wilsons insist that they were not given a hearing on the merits before entry of the order of sale and thus were deprived of property without due process. They also contend that the sale was punishment for petitioners’ failure to make payments on the note and deed of trust. Neither contention is borne out by the record. The order of sale shows that there was a hearing on the charges that the Wilsons had failed to make payments on the notes. Evidence was received from the clerk and master and from Ernest Wilson. The chancellor found from the statements of these witnesses and the entire record, that the Wil-sons were in default on the note and the sale of the property was to be “in the manner provided for by law and the above referred to trust deed.” And as pointed out by the Court of Appeals, “as we have no bill of exceptions, we must conclusively presume that there was sufficient evidence before the Trial Judge to reach the conclusions that he did reach.” See Dattel v. Tidwell, 512 S.W.2d 550 (Tenn.1974) and Norris v. Richards, 45 Tenn.App. 100, 320 S.W.2d 730 (1958).

The Wilsons also complain of the action of the Court of Appeals in affirming the order of sale, where the note involved had not been surrendered and there had been no finding of fraud on the part of the Wilsons. T.C.A. § 23-705 provides that the garnishee shall not be made liable on a debt evidenced by negotiable or assignable paper, unless such paper is delivered or the garnishee completely exonerated or indemnified from all liability thereon after he may have satisfied the judgment or decree. In affirming the order of sale, the Court of Appeals remanded the case to the chancery court “so that in enforcing this decree the provisions of Section 23-705, T.C.A. be complied with by affording indemnity to the defendants in the event of their payment of the note into Court as is ordered by the Chancellor unless their conduct in this matter shows such collusion and/or fraud as to relieve of the necessity of requiring indemnity.” We see no basic error in the action of the Court of Appeals for it affords petitioners the protection from additional liability contemplated by T.C.A. § 23-705.

Petitioners have also represented to this court that actions have been taken by the chancery court while the cause was pending in the Court of Appeals, including the sale of property and the issuance of a writ of possession without indemnification of defendants against future liability on the note, despite the fact that no procedendo issued to the chancery court authorizing it to so act. These matters are not before this court on petition for certiorari, but are matters properly to be considered by the Court of Appeals, provided petitioners perfect the appeal granted them by the Chancery Court of Lewis County.

Affirmed. Costs in this court are adjudged against Ernest E. Wilson and Beulah Wilson and their surety.

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


author: PER CURIAM.

text:
    Nancy Jo KELLEY and Stella Roberts, Petitioners, v. STATE of Tennessee, Respondent.
    Supreme Court of Tennessee.
    April 24, 1978.
    James G. Nave, Cleveland, for petitioners.
    Linda Ross Butts, Asst. Atty. Gen., Nashville, for respondent; R. A. Ashley, Jr., Atty. Gen., Nashville, of counsel.
   OPINION

PER CURIAM.

In these consolidated causes petitioners, Nancy Jo Kelley and Stella Roberts, were convicted of the offenses of shoplifting and grand larceny. For the shoplifting offense, each defendant was fined $300.00 and, for the grand larceny offense, each defendant was sentenced to a term of not less than three nor more than six years in the penitentiary.

At the trial the defendants offered no evidence but relied upon a motion to suppress the evidence obtained from the search of an automobile which belonged to defendant Roberts and in which was found the three wigs having a total value of $135.00 which were taken from the Atlanta Wig Boutique in Cleveland, Tennessee, by the defendants, which evidence constituted the basis for the grand larceny conviction. The trial court held that the search and seizure was valid although conducted without a warrant and upon appeal the Court of Criminal Appeals affirmed the convictions, holding that neither of the defendant petitioners had standing to question the validity of the search. The court reached that conclusion with respect to Nancy Jo Kelley upon the ground that she did not own or have any possessory interest in the automobile or the items seized and with respect to Stella Roberts upon the ground that although she owned the automobile at the time of the search she was, nevertheless, deprived of standing because immediately prior to the search, upon being questioned by the arresting officers whether she owned an automobile, denied that she owned one. The court, therefore, concluded that under the doctrine of disclaimer, as enunciated by this Court in Bowman v. State, 211 Tenn. 38, 362 S.W.2d 255 (1962) and Miller v. State, Tenn., 520 S.W.2d 729 (1975) defendant Roberts was deprived of the standing she otherwise would have had to contest the search.

Based upon a thorough examination of the record in these cases and after careful consideration of the authorities cited by the petitioners, the Court is unanimous in its conclusion that no error exists with respect to the convictions for shoplifting. With respect to the grand larceny convictions, a majority of the Court is of the opinion that upon the authority of Fox v. State, 214 Tenn. 694, 383 S.W.2d 25 (1964); Bowman v. State, supra; and Miller v. State, supra, neither of the defendants, under the circumstances of this case, had standing to contest the validity of the search made of the automobile which revealed the wigs and, therefore, that the larceny conviction also must be affirmed.

Mr. Justice Brock disagrees with the conclusion of the majority that the defendants lack standing to contest the validity of the search and upon the authority of Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960) would hold that each of the defendants possesses sufficient standing to contest the search and that the disclaimer doctrine cannot be constitutionally applied under the circumstances of this case. He is further of the opinion that the search and seizure in this case was unlawful when measured by the standards announced in Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); Fuqua v. Armour, Tenn., 543 S.W.2d 64 (1976); State v. Hughes, Tenn., 544 S.W.2d 99 (1976). He, therefore, dissents from the decision of the Court in the grand larceny cases.

The judgments of the Court of Criminal Appeals and of the trial court are affirmed and costs are taxed against the petitioners.


author: BROCK, Justice.

text:
    P. R. MALLORY AND COMPANY, INC., Appellant, v. Emma Jean RAMSEY, Appellee.
    Supreme Court of Tennessee.
    April 24, 1978.

      Hugh M. Carmichael, Sparta, for appellant.
    John E. Acuff, Crawford, Barnes & Acuff, Cookeville, for appellee.
   OPINION

BROCK, Justice.

This is a workmen’s compensation case. The plaintiff employee injured her leg by accident arising out of and in the course of her employment for which she was awarded 90% permanent partial disability by the trial court at the first hearing. The original decree of the Chancellor was appealed to this Court by the employer and was affirmed, in part, but was remanded to the trial court with directions. Although the plaintiff had prayed for an award of benefits for temporary total disability from the date of the accident, the Chancellor in his original decree made no specific adjudication one way or the other regarding temporary total disability but found that she suffered a 90% permanent partial disability to her right leg and awarded benefits accordingly.

Upon the first appeal to this Court, one of the issues considered was whether surgery upon the injured knee would improve the plaintiff’s condition and reduce her disability and, since the court was of the opinion that this issue had not been properly developed at the first trial, the cause was remanded to the Chancery Court with leave granted to the parties to offer proof whether a particular surgical procedure recommended by Dr. John C. Brothers was reasonably required and to prove such expenses as would be incurred in performing such surgery.

Upon the remand, the Chancellor conducted an additional hearing at which he received the testimony of Dr. Brothers in the form of a deposition and the personal testimony of the plaintiff. The defendant employer offered no additional evidence. Upon consideration of this additional evidence, the Chancellor found that the surgical procedure proposed by Dr. John Brothers was necessary and authorized that it be performed at the expense of the defendant employer.

Further, upon motion of the plaintiff, the Chancellor awarded benefits for temporary total disability from the date of the accident until the plaintiff reaches maximum recovery. It was ordered that the defendant make a lump sum payment of all temporary total benefits already accrued and continue to make weekly payments of temporary total disability benefits at the maximum rate in effect at the time of the injury “until the period of maximum recovery, at which time this cause will further come on to be heard regarding permanent and partial disability.”

The employer has again appealed to this Court and, by assignments of error, raises these issues:

(1) Does the evidence in the record support the finding of the trial court that the surgery proposed by Dr. Brothers is reasonably required?

(2) Does the defendant employer escape liability for the cost of such surgery because it will not have been performed within the three year period specified in T.C.A., § 50-1004?

(3) Was the trial court foreclosed from awarding benefits for temporary total disability upon the remand because of the Chancellor’s failure to award temporary, as distinguished from, permanent disability benefits in his original decree?

The contention of the employer that the evidence does not support the conclusion of the trial court that the proposed surgery is reasonably required is frivolous. It complains that Dr. Brothers did not “order” the surgery. The statute, T.C.A., § 50-1004, does not require that medical treatment be “ordered” before the employer shall be liable for furnishing the same; what the statute requires is that the employer shall furnish free of charge such medical and surgical treatment “as may be reasonably required; . . We find that the proposed surgery is reasonably required in this case. Thus, Dr. Brothers testified that he has recommended the surgery since 1975 and that it would have been performed already if the employer had agreed to pay for it; that the ultimate decision whether to have the surgery, of course, resides with the patient but that, in his opinion, such surgery probably would decrease her pain and disability. No more than this is required under the statute.

Even more frivolous is the argument of the employer that he is not liable for the costs of the proposed surgery because it was not performed within three years following the original injury. The statute, T.C.A., § 50-1004, does provide:

“For not exceeding three (3) years after notice of injury, the employer or his agent shall furnish free of charge to the employee such medical and surgical treatment (etc.) ... as may be reasonably required; . . ”

Obviously, however, the three year period of limitations is tolled by the election of the employer to deny responsibility for such treatment. It was so held by this Court in Paristyle Beauty Salon, Inc. v. Chandler, 207 Tenn. 587, 341 S.W.2d 731 (1960).

Neither do we find any merit in the contention of the employer that the trial court, upon remand, was without authority to reopen his original decree and award benefits for temporary total disability. The necessary effect of the remand was to reopen the adjudication of permanent partial disability which the trial court had awarded in its original decree. Since permanent partial disability does not begin until temporary total disability ends, the two issues were so inextricably entwined that to reopen one necessarily amounted to reopening of the other. See Floyd v. Tennessee Dickel Distilling Co., 225 Tenn. 65, 463 S.W.2d 684 (1971).

The Court concludes that this appeal is frivolous within the meaning of T.C.A., § 27-124, and, accordingly, awards damages to the appellee and against the appellant in the sum of $250.00.

All assignments of error made by the appellant are overruled, the decree of the Chancellor is affirmed and this cause is remanded to the trial court for such further proceedings as are necessary and proper in the premises. Costs incurred upon this appeal are adjudged against the appellant.

HENRY, C. J., COOPER, HARBISON, JJ., and DAUGHTREY, Special Judge, concur.


author: COOPER, Justice. HENRY, Chief Justice,

text:
    Carol PACE, Appellant, v. STATE of Tennessee, Appellee.
    Supreme Court of Tennessee.
    May 29, 1978.

      Jerry H. Summers, Chattanooga, for appellant.
    Tennessee Ass’n of Criminal Defense Lawyers, Robert E. Burch, Dickson, amicus curiae.
    Brooks McLemore, Jr., Atty. Gen., Robert L. Tucker, Asst. Atty. Gen., David L. Ray-bin, Asst. Atty. Gen., Nashville, for appel-lee.
   COOPER, Justice.

OPINION

This case arose in the Criminal Court of Hamilton County. The appellant, Carol Pace, protests a ruling by the trial judge of that court, holding certain portions of the pretrial diversion statute, T.C.A. § 40-2105 et seq., unconstitutional.

The appellant was indicted for fraudulent breach of trust. She asked that the district attorney place her on pretrial diversion. Upon his refusal, she petitioned the court to review his decision, pursuant to the provisions of T.C.A. § 40-2108(b). In an order dated November 1, 1977, the court dismissed her petition, holding that several portions of T.C.A. § 40-2108, including the one on which the appellant relied in seeking review, were unconstitutional. On November 4, 1977, the appellant was found guilty of the offense charged. The trial judge sentenced her to serve eleven months and twenty-nine days, with that sentence to be suspended upon certain conditions being met. The appellant then renewed her exception to the trial judge’s refusal to review her request for pretrial diversion, and was granted an appeal. As the sole issue presented is the constitutionality of T.C.A. § 40-2108, that appeal is properly before this court.

At the time of the appellant’s petition, T.C.A. § 40-2108 provided in pertinent part as follows:

(a) Memorandum of Understanding Permitted. In cases where the defendant does not have a previous felony conviction, the parties may by a memorandum of understanding agree that the prosecution will be suspended for a specified period, not to exceed two (2) years from the filing of memorandum of understanding, for any offense the maximum punishment for which is confinement for ten (10) years or less and/or a fine, on one or more of the following conditions to be observed by the defendant during the period:
***** *
(b) Filing of Memorandum of Understanding and Notice. Promptly after the memorandum of understanding is made, the prosecuting attorney shall file it with the court together with a notice stating that pursuant to memorandum of understanding of the parties . . ., the prosecution is suspended for a period specified in the notice. . . . Said memorandum of understanding must be approved by the trial court before it shall be of any force and effect.
The trial court shall approve said memorandum of understanding unless:
(1) Prosecution has acted arbitrarily and capriciously.
(2) Said memorandum of understanding was obtained by fraud.
(3) The diversion of the case is unlawful.
The defendant shall have a right to petition for a writ of certiorari to the trial court for an abuse of prosecutorial discretion. If the trial court finds that the prosecuting attorney has abused his discretion in failing to divert, the trial court may order the prosecuting attorney to place the defendant in a diversion status on such terms and conditions as the trial court may order. .
(b) * * *
(c) * * *
(d) * * *
(e) Dismissal with prejudice. The trial court shall dismiss with prejudice any warrant or charge against the defendant upon the expiration of ninety (90) days after the expiration of the period of suspension specified in the memorandum of understanding is filed [sic], provided no termination of the memorandum of understanding has been filed under the provisions of subsection (d). If the prosecution is dismissed with prejudice, jeopardy shall attach, and the court shall make a minute entry to that effect.

The last two paragraphs of subsection (b) were added by amendment in 1976, and in the same amendment, in subsection (e) the word “shall” was substituted for the phrase “may in its discretion” preceding “dismiss.”

The trial judge held the statute unconstitutional on three grounds: First, that the provision in T.C.A. § 40-2108(b), providing for review by the trial judge of a refusal by the prosecutor to divert, is “so vague, ambiguous, and uncertain as to be incapable of coherent application”; secondly, that the 1976 Act amending T.C.A. § 40-2108 was broader than the caption of either the original áct or the 1976 amendment, and was thus unconstitutional under Article II, § 17 of the Tennessee Constitution; and, thirdly, that the provision of T.C.A. § 40-2108(b) mandating approval of a memorandum of understanding by the trial judge except in certain limited situations was “an unwarranted invasion of the functions of the Judiciary.” We find no basic defect in the act.

A statute is invalid for vagueness only when “men of common intelligence must necessarily guess at its meaning and differ as to its application.” Underwood v. State, 529 S.W.2d 45, 47-48 (Tenn.1975). We do not believe that this statute presents such difficulties in interpretation. The statute vests in the prosecuting attorney the decision as to whether a given defendant is suitable for pretrial diversion and the terms under which diversion will be granted. However, that discretion is not unbridled: It must be exercised so as to serve the interests of justice. Compare United States v. Cowan, 524 F.2d 504 (5th Cir. 1975); United States v. Falk, 479 F.2d 616 (7th Cir. 1973). To that end, it is subject to review by the trial court upon proper application by the defendant. T.C.A. § 40-2108(b). A similar standard has been employed without unreasonable difficulty in the appellate review of a trial judge’s rulings on applications for suspension of sentence under the provisions of T.C.A. § 40-2901 et seq. See Stiller v. State, 516 S.W.2d 617 (Tenn.1974). We anticipate that trial judges will have no greater difficulty applying the provisions of the pretrial diversion statute.

As to the holding that the caption of the amending act was defective under the requirements of Article II, Section 17 of the Constitution of Tennessee, it is fundamental that defects in the caption of the amendatory act, if any, were cured through subsequent action of the legislature codifying the amendment. International Harvester Co. v. Carr, 225 Tenn. 244, 466 S.W.2d 207 (1971).

The trial judge interpreted the amendment to T.C.A. § 40-2108(b) as depriving him of discretion to refuse to divert an eligible defendant with whom the prosecuting attorney had entered into a memorandum of understanding, regardless either of the terms of the memorandum or the merits of the case. He found this to be an impermissible invasion of the function of the judiciary, and as such to be a violation of the separation of powers decreed by Article II, Sections 1 and 2 of the Constitution of Tennessee. If we were to interpret the statute similarly, we would agree. See, e. g., Mabry v. Baxter, 58 Tenn. 682 (1872). Compare Underwood v. State, 529 S.W.2d 45 (Tenn.1975). However, we do not read the statute to so restrict the power of the trial judge. The pretrial diversion statute, as amended, expressly provides that the memorandum of understanding between the prosecuting attorney and a defendant has no force and effect until it is approved by the trial judge. The trial judge is directed to approve the memorandum of understanding unless the memorandum of understanding was obtained by fraud, or the diversion of the case is unlawful, or, more importantly, the prosecuting attorney acted arbitrarily and capriciously in entering into the memorandum of understanding. This latter grant of authority to the trial judge, in our opinion, confirms in him the power and the responsibility to review a memorandum of understanding submitted to him for approval with the view toward determining if there has been an abuse of prosecutorial discretion, either in entering into the memorandum of understanding or in fixing its terms. And, in those instances where the trial judge finds that the terms of the diversion are so lenient, or the character of the defendant such that diversion patently would not be in the interests of justice, the trial judge has the authority to disapprove the memorandum of understanding and effectively keep the defendant out of the diversionary program or have the terms of the memorandum of understanding modified. Such a statutory scheme, in our opinion does not impermissibly intrude on the judicial function, or restrict the power of the trial judge to insure that justice is done in his court, and thus does not violate the separation of powers provisions of Article II, Sections 1 and 2, of the Constitution of Tennessee.

The pretrial diversion act being constitutional, it follows that the trial judge was in error in dismissing appellant’s petition for review of the prosecuting attorney’s decision not to place appellant on pretrial diversion and in requiring appellant to stand trial on the indictment charging her with fraudulent breach of trust. Accordingly, the appellant’s conviction and the suspension of her sentence is set aside. The case is remanded to the trial court for a review of the prosecuting attorney’s refusal to place appellant on pretrial diversion and for such further action as may be necessitated by the trial judge’s decision on the completion of his review.

FONES, BROCK, and HARBISON, JJ., concur.

HENRY, C. J., filed concurring opinion in which FONES, J., concurred.

HENRY, Chief Justice,

concurring.

This Court is called upon, for the first time, to determine the constitutionality of our pretrial diversion statutes, Sec. 40-2105, et seq., T.C.A.

While I concur generally in the conclusion reached in the majority opinion, I am persuaded that it does not contain a sufficient articulation of the significant issues involved in this controversy.

I.

Respective Insistences of the Parties

Appellant insists that the trial judge erred in holding that the pretrial diversion statutes were an unconstitutional invasion of the function of the judiciary, and that the provisions were so vague, ambiguous and uncertain as to be incapable of coherent application.

The Tennessee Criminal Defense Lawyers Association in amicus curiae brief agrees, in substance, with appellant. It insists that the Attorney General is a judicial officer and, therefore, our statutory scheme does not collide with the doctrine of separation of powers because the District Attorney General and the trial court “are of the same branch of government.”

The State Attorney General, who normally appears in litigation as a proponent of the constitutionality of state statutes, takes the position that this scheme of pretrial diversion constitutes an unconstitutional infringement upon the role of the judiciary. Simultaneously, he takes the position that Sec. 40-2108(b), providing for judicial review of the District Attorney’s decision not to divert, is an unconstitutional infringement upon the power of the District Attor- , ney General. The Attorney General further asserts that these review provisions are unconstitutionally vague.

II.

The Nature of the Office of District Attorney General

It is necessary first to determine the nature of the office of District Attorney General, for if this is a judicial office, there is no substantial separation of powers problem.

The District Attorney General is a constitutional officer. Art. VI, Sec. 5, a part of the Judicial Article of our constitution, provides for an “Attorney for the State for any circuit or district, for which a Judge having criminal jurisdiction shall be provided by law.”

This Court has not heretofore addressed the nature of the office of District Attorney General; however, in Manning v. State, 195 Tenn. 94, 100, 257 S.W.2d 6, 9 (1953), the Court, without citing any authority, stated:

The District Attorney General is a quasi judicial officer, representing the State of Tennessee. (Emphasis supplied.)

An examination of Manning, however, will reveal that this statement was made in the context of a case where the trial court was reversed because of improper argument by the prosecutor. What the Court was actually holding was that the District Attorney General is an “officer of the Court.”

In the introduction to the ABA Standards Relating to the Prosecution Function, at page 18, it is stated:

The American prosecutor, representing the executive branch under a system of divided powers defined in a written constitution, is an officer of the court only in the same sense as any other lawyer.

As this Court, speaking through then Chief Justice Lansden, declared in State v. Costen, 141 Tenn. 539, 545, 213 S.W. 910, 911 (1919), “[h]e has no judicial power, and his ministerial power must be responsive to the direction of the state, which is his client.”

In People v. District Court in and for County of Larimer, 186 Colo. 335, 527 P.2d 50 (1974), the Supreme Court of Colorado declared:

While he is an officer of the court as any other attorney, a district attorney is not a judicial officer not (sic) a part of the judicial branch of the government. A district attorney belongs to the executive branch. (Emphasis supplied). 527 P.2d at 52.

The American Bar Association Standards Relating to the Prosecution Function, Sec. 1.1(a), declare:

The office of prosecutor, as the chief law enforcement official of his jurisdiction, is an agency of the executive branch of government which is charged with the duty to see that the laws are faithfully executed and enforced in order to maintain the rule of law. (Second emphasis supplied).

I have no hesitancy in holding that the District Attorney General is an officer of the executive department.

Thus, the apparent problem of separation of powers stems from the fact that the District Attorney General and the trial judge are members of different branches of government. I regard this issue to be more apparent than real. This necessarily follows from the fact that the precise preservation of the demarcation between the three branches of government is not always possible and the boundary lines frequently tend to be fuzzy and blurred. Bank of Commerce and Trust Company v. Senter, 149 Tenn. 569, 260 S.W. 144 (1924). See also Underwood v. State, 529 S.W.2d 45 (Tenn.1975).

Appropos this discussion we quote with approval from State v. Leonardis, 73 N.J. 360, 375 A.2d 607 (1977):

The aim of the constitutional provision is not to prevent cooperative action among the three branches of government, but to guarantee a system of checks and balances. This notion of a blending of powers is expressed in various opinions by both this Court and the United States Supreme Court, interpreting the State and Federal Constitutions. In Brown v. Heymann, 62 N.J. 1, 297 A.2d 572 (1972), Chief Justice Weintraub explained:
It is well to repeat that while the doctrine of separation of powers is designed to prevent a single branch from claiming or receiving inordinate power,. there is no bar to cooperative action among the branches of government. On the contrary, the doctrine necessarily assumes the branches will coordinate to the end that government will fulfill its mission. [62 N.J. at 11, 297 A.2d at 578]
This same theme — approving cooperative effort among the three branches of government — was expressed by Justice Jackson in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 72 S.Ct. 863, 96 L.Ed. 1153 (1952): “[w]here the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government.” 343 U.S. at 635, 72 S.Ct. at 870, 96 L.Ed. at 1199 (Jackson, J., concurring). And Judge Gibbons of the Third Circuit recently described the doctrine as calling for “[a] dispersal of decisional responsibility in the exercise of each power, as distinguished from a separation of powers . . . .” Gibbons, “The Interdependence of Legitimacy,” 5 Seton Hall L.Rev. 435, 436 (1974). See also, Davis, Administrative Law Treatise § 1.09 at 68 (1958) (“The danger is not blended power. The danger is unchecked power.”). 375 A.2d at 612-13.

In my judgment, nothing in our pretrial diversion statutes runs counter to the doctrine of separation of powers.

III.

Prosecutorial Discretion

As a further predicate for the conclusions I ultimately reach, and after holding that the District Attorney General is not a judicial officer, I now turn to the critical question of prosecutorial discretion.

While our Constitution (Art. VI, Sec. 5) creates the office and various statutes define and assign duties to the District Attorney General (see particularly Sec. 8-703, T.C.A.), there are neither statutory nor judicial criteria governing the operation of the office.

He or she is answerable to no superior and has virtually unbridled discretion in determining whether to prosecute and for what offense. No court may interfere with his discretion to prosecute or not to prosecute, and in the formulation of this decision he or she is answerable to no one. In a very real sense this is the most powerful office in Tennessee today. Its responsibilities are awesome; the potential for abuse is frightening. Indeed, as an incident of separation of powers, the courts may not interfere with the discretion of the District Attorney in their control over criminal prosecutions. See United States v. Cox, 342 F.2d 167, at 171 (5th Cir. 1965).

This prosecutorial discretion is deeply rooted in the common law and is a vital part of our common-law tradition. But this discretion has its outer limits. When the charging process — in this state the indictment — has been completed, the disposition of the charge becomes a judicial function.

Under Tennessee law prior to the adoption of the pre-trial diversion statutes, there were two basic methods for the termination of a criminal prosecution, viz:

a) by verdict or judgment
b) by the entry of a nolle prosequi.

Pre-trial diversion is a third method of termination; but it is obvious that it is not a termination pursuant to a finding of guilt or innocence. It does, however, partake of the nature of a nolle prosequi. Therefore, it is appropriate that we examine the nature of the District Attorney General’s involvement in eases wherein a criminal case is nolled.

As is pointed out in Commonwealth v. Kindness, 247 Pa.Super. 99, 371 A.2d 1346 (1977):

The authorities are virtually unanimous that the historical power to “nol pros” belonged at common law solely to the Attorney General and remains an exclusive prosecutorial power in the absence of a state constitutional or statutory provision to the contrary. 371 A.2d at 1349.

This firmly entrenched common-law rule has been abrogated in Tennessee. Sec. 40-2101, T.C.A., provides:

After indictment found, no criminal prosecution can be dismissed, discontinued, or abandoned without leave of the court.

In State v. Costen, supra, this Court, citing 12 Cyc., 374, defined a nolle prosequi as being

a formal entry of record by the attorney-general by which he declares that he will no longer prosecute the case. 141 Tenn. at 545, 213 S.W. at 911.
After so defining it the Court stated: The judge has no participation in it, except to give his consent to such order, and permit its entry upon the record. We are not unmindful of the fact that this power has been exercised by the attorneys-general in this State for many years, but the right to so exercise it is not conferred by the Constitution. The legislature, therefore, has the power to take it away, and when it does so it is not an interference, in a constitutional sense, either with the judicial power of the State, or the ministerial duties of the attorneys-general. With the policy of the statute neither we nor the attorneys-general have anything to do. It is a plain mandate of the legislature to which we must all bow. (Emphasis supplied). 141 Tenn. at 545, 213 S.W. at 911.

It is obvious under Sec. 40-2101, T.C.A., and Costen that when a criminal prosecution has gone beyond the charging stage, that is to say, after indictment is returned, the matter has left the domain of the prosecutor and has entered into the realm of the court. See also State ex rel. Hobbs v. Murrell, 170 Tenn. 152, 93 S.W.2d 628 (1936). This case is authority for the general proposition that a conditional nolle may be entered and does not become final until the condition is performed. See also 22A C.J.S. Criminal Law § 461 (1961). Again the similarity between a nolle and pre-trial diversion is evident.

These considerations necessitate a discussion of the purpose and nature of pre-trial diversion and require an analysis of this procedure in the light of the respective responsibilities of the District Attorney General and the Trial Judge.

IV.

The Purpose and Nature of Pre-trial Diversion

The self-evident purpose of pre-trial diversion is to spare appropriately selected first offenders the stigma, embarrassment and expense of trial and the collateral consequences of a criminal conviction. The result contemplated is the restoration of successful divertees to useful and productive citizenship. This is a legitimate and praiseworthy objective and one that has now become the public policy of the State.

While pre-trial diversion is relatively new, various courts have discussed the nature of the concept. We examine some of these decisions.

In People v. Superior Court of San Mateo County, 11 Cal.3d 59, 113 Cal.Rptr. 21, 520 P.2d 405 (1974), the California Supreme Court held that the decision to divert is “an exercise of judicial power [and] cannot constitutionally be subordinated to a veto of the prosecutor.” 11 Cal.3d at 65, 113 Cal.Rptr. at 25, 520 P.2d at 409.

The Court made this pertinent observation:

The judicial power is compromised when a judge, who believes that a charge should be dismissed in the interests of justice, wishes to exercise the power to dismiss but finds that before he may do so he must bargain with the prosecutor. The judicial power must be independent, and a judge should never be required to pay for its exercise. 11 Cal.3d at 64, 113 Cal.Rptr. at 25, 520 P.2d at 409.

In a companion case, Sledge v. Superior Court of San Diego County, 11 Cal.3d 70, 113 Cal.Rptr. 28, 520 P.2d 412 (1974), the California Court held that the “preliminary screening for eligibility conducted by the district attorney . . [under] standards prescribed by the statute” is not judicial in character and does not violate the constitutional requirement of separation of powers. This holding is in the context of a suggested invasion upon the power of the judiciary. Further it is in the context of a statutory scheme which, unlike ours, gave “no indication [that] the Legislature intended the prosecution to be interrupted for interlocutory review of this issue.” 11 Cal.3d at 76, 113 Cal.Rptr. at 32, 520 P.2d at 416.

I agree that the action of the District Attorney under Tennessee law is not judicial, strictly speaking, and that conferring upon him the right to make a tentative determination of eligibility does not, in any sense, infringe upon the prerogatives of the judicial branch.

Perhaps the most comprehensive treatment of the concept of pre-trial diversion and of the underlying issues is State v. Leonardis, 73 N.J. 360, 375 A.2d 607 (1977). The principal issue there addressed was “whether, in light of the doctrine of separation of powers, the Court had the power, either before or after indictment, to divert a defendant over the prosecutor’s objection.” 375 A.2d at 610-611.

The Court held that (1) “great deference should be given to the prosecutor’s determination not to consent to diversion,” 375 A.2d at 618; (2) the scope of review was narrow and limited; (3) the decision lies first with the program director and prosecutor; and (4) there is a heavy burden upon the defendant to overcome a prosecutorial veto.

In reaching these conclusions the Court considered a number of issues. First, it disposed correctly, in my view of the separation of powers issue by holding that the decision to divert a criminal defendant is a “quasi-judicial” function. After so doing, the Court said:

Our recognition that the decision to admit or reject an applicant for pretrial intervention is an exercise of quasi-judicial power obviates our need to discuss the analogies that the parties draw between [pretrial diversion] programs and administrative agencies. Within a wholly judicial sphere we are not confronted by potential conflicts with either the executive or the legislative branches of our government; similarly, we are not faced with the need to defer to the expertise of an administrative body. (N.J. Court’s emphasis). 375 A.2d at 615.

I regard this as a valid distinction. Even if pre-trial diversion be classified as wholly executive and nonjudicial in character, it is a procedure operating wholly within the milieu of the judicial department and the conventional separation of powers dichotomy would have no relevance.

Next, the Leonardis Court asserted the authority of the courts to review prosecuto-rial decisions upon a “showing of patent and gross abuse.” But, said the Court, even absent the quasi-judicial nature of diversion, the review “would be consistent with the traditional role which courts have exercised in safeguarding individuals from abusive governmental action”; and the Court noted that “[t]he judiciary is commonly called upon to review the rationality of decisions by other branches of government or agencies with special expertise.” 375 A.2d at 615.

Finally, the Court noted that “diversion entails more than merely the charging function, and hence, cannot be said to fall solely within the discretion of the prosecutor.” 375 A.2d at 617.

V.

Conclusion

Pre-trial diversion, a procedural alternative to traditional system of prosecution followed, in appropriate instances, by post-trial probation, is essentially judicial in character. As a minimum it is quasi-judicial.

It represents a declaration of public policy by the legislature that diversion of certain classes of offenders from the normal criminal process, in an effort to rehabilitate and restore them to useful and productive citizenship and simultaneously to conserve judicial manpower and reduce court congestion, is in the public interest. This is a legitimate end of government.

Diversion may not be regarded as a mere extension of the charging process. It does not come into play until after indictment. The plan of diversion, or the denial thereof, follows indictment and comes after the prosecutor has fully discharged all discretionary functions and after the prosecutorial die has been cast. Once committed to prosecution, the case is before the court for disposition. The process, at this stage, becomes fundamentally judicial and must end in a verdict, a nolle or pre-trial diversion.

Diversion may be viewed as a specialized and conditional nolle prosequi or as a pretrial probation system or as a wholly new, novel and innovative idea. The result in either event is the same: the jurisdiction of the court has been invoked by indictment and disposition becomes a judicial responsibility.

I do not view the statute as constituting any significant infringement upon the function of the prosecutor. In point of fact, it imposes no restraint upon his right to prosecute or to decline to prosecute. The Court only reviews his action after the matter is pending before the Court. The Court’s traditional role of presiding over the disposition of pending litigation is accomplished independent of the inclination and insis-tences of counsel.

Nor do I regard it as an invasion upon the prerogatives of the trial judge. It is true that his review is limited — and properly so. The action of the prosecutor is presumptively correct and it should only be set aside on the basis of patent or gross abuse of prosecutorial discretion.

The memorandum of understanding is only effective when it has been approved by the trial judge. It is true that his approval is mandatory except when the District Attorney General has acted arbitrarily and capriciously [patent or gross abuse of discretion”] or the memorandum was procured by fraud or the diversion is unlawful. See Sec. 40-2108(b), T.C.A.

But these exceptions are applicable only when an agreement has been reached and a memorandum of understanding has been filed. Clearly, it is within the province of the legislature to require the approval of an agreement made by the parties. This is the procedure by which the public policy directive is enforced.

In those cases where the parties are unable to agree and do not enter into a memorandum of understanding, the trial judge is given the right to review the case for an abuse of prosecutorial discretion. Sec. 40-2108(b), T.C.A. It is true that the act does not define the phrase “abuse of prosecutorial discretion.” The phrase “abuse of discretion” is one of antiquity in the law, and to the bench and bar its meaning is clear.

Because pre-trial diversion is, in effect, pre-trial probation, I consider it a fair approach to read into the statute the provisions of Sec. 40-2904, T.C.A., relating to the discretion of the trial judge in granting probation. There, the trial court acts on the basis of a report which “shall inquire into the circumstances of the offense, criminal record, social history, and present condition of the defendant.”

These are among the considerations involved in determining whether there was an abuse of prosecutorial discretion.

As we observed in Stiller v. State, 516 S.W.2d 617, 622 (Tenn.1974):

“The whole horizon of criminal justice is dotted with discretion — from whether to arrest; whether to allow bail and how much; whether to prosecute and for what; whether to plea bargain and what to accept or to reject . . . .”

All these functions rest within the unbridled and undefined discretion of the District Attorney. I cannot say that trial judges are unable to review a prosecutorial decision to withhold diversion merely because the statute contains no glossary of terms.

I find Tennessee’s pretrial diversion statutes to be constitutional in all respects.

I would vacate the judgment of the trial court, direct that the record of conviction be expunged and remand for an evidentiary hearing on the question of whether the action of the District Attorney in failing to agree to pre-trial diversion, was arbitrary or capricious.

Justice FONES concurs in this opinion.

      . The Attorney General also attacks the caption of the pre-trial diversion statute, taking a position contrary to that normally asserted in this Court. I do not consider the caption deficiency, if such there is, to be of any particular significance and, therefore, do not deal with it in this opinion.

      . The fact that the office of District Attorney General is provided for in the Judicial Article is of no significance. The same article also provides for clerks of the Supreme Court, clerks and masters and clerks of the Inferior Courts (Sec. 13) and for constables (Sec. 15). This, of course, does not make clerks, clerks and masters and constables judicial officers. These officials, along with the Attorney General and the District Attorney General are listed in the Judicial Article solely for convenience and it is appropriate that they be so listed since they operate in, and interact with, the judicial department.

      . While not precisely pertinent to any issue here presented, it is not irrelevant to the issue to note that a State Attorney General, under our system of government, is almost universally held to be an executive officer. See, e. g. Phyle v. Duffy, 334 U.S. 431, 68 S.Ct. 1131, 92 L.Ed. 1494 (1948); State v. Finch, 128 Kan. 665, 280 P. 910 (1929); People v. Vaughn, 49 Ill.App.3d 37, 6 Ill.Dec. 932, 363 N.E.2d 879 (1977); People v. Stinger, 22 Ill.App.3d 371, 317 N.E.2d 340 (1974); Commonwealth v. Bardascino, 210 Pa.Super. 202, 232 A.2d 236 (1967). At common law he was the chief legal representative and advisor of the Crown. Under the colonial governments he was appointed by the colonial governors. Practically all common-law jurisdictions initially adopted the office of attorney general as it existed in England.

      . The entry of a nolle, of course, does not bar further prosecution under a new indictment. State ex rel. Hobbs v. Murrell, 170 Tenn. 152, 93 S.W.2d 628 (1936).

      . In Kindness, the Court quotes from a Texas case as follows:
      “How firmly the rule vesting the exclusive power in the prosecuting officer to dismiss a case was established at common law is forcibly and effectively illustrated in a conversation relating to the commitment for seditious language of certain persons belonging to a sect called ‘Prophets.’ Lacy, one of the friends of the prisoners committed, assumed to intercede for them, and upon his conference with Lord Holt the following colloquy is reported: “Lacy: ‘I come to you, a prophet from the Lord God, who has sent me to thee, and would have thee grant a nolle prosequi for Mr. Atkins, His servant, whom thou hast cast into prison.’ Chief Justice Holt: ‘Thou art a false prophet, and a lying knave. If the Lord God had sent thee, it would have been to the Attorney General, for He knows that it belon-geth not to the Chief Justice to grant a nolle prosequi, but as Chief Justice, I can grant a warrant to commit thee to bear him company.’ 2 Campbell’s Lives of the Chancellors, 173.”

      . For history of concept see State v. Leonardis, 71 N.J. 85, 363 A.2d 321 (1976).

      . California law provided that the case would not be diverted “unless the District Attorney concurs.” See Cal. Penal Code Sec. 1000.2 (West) prior to 1975 Amendment.

      . In New Jersey pre-trial diversion was accomplished by Rule of Court and much of the opinion was devoted to the Court’s power under a Rule of Court.

      . There is no conflict between this holding and that heretofore quoted from Kindness, supra. Each is founded on acceptable legal practices.

      . The statute does not make this entirely clear but this conclusion inheres in the very nature of the process. Had the Legislature intended that it be applied after the arrest of a criminal defendant, the result would have been an unwarranted invasion of the authority and power of the District Attorney General, whose prose-cutorial discretion, unfettered at common law, may not be abridged during the charging process that is to say, prior to the indictment. We deal with the statute and apply it so as to adhere to the strong presumption favoring the validity of legislative enactments.


text:
    STATE of Tennessee, Petitioner, v. William Lee BURKHART, Respondent.
    Supreme Court of Tennessee.
    May 30, 1978.
    Rehearing Denied July 10, 1978.

      John F. Southworth, Jr., Asst. Atty. Gen., Brooks McLemore, Jr., Atty. Gen., Nashville, for petitioner.
    Hughie Ragan, Jackson, for respondent.
   OPINION

COOPER, Justice.

We granted certiorari in this case to review a decision by the Court of Criminal Appeals holding that a trial judge who has imposed a sentence at variance with an express statutory mandate may not correct the sentence to conform to the statute after the judgment has become final.

From the allegations in and exhibits to the pleadings, it appears that the respondent, William Lee Burkhart, was convicted of burglary in the first degree, and sentenced to a term of twelve and one-half to fifteen years. While his appeal of that conviction was pending, he was confined in the Fort Pillow State Farm in Lauderdale County. He escaped from that institution on May 9,1975, and was recaptured on May 27th. On October 10, 1975, in the Circuit Court of Lauderdale County, the respondent pled guilty to escape, and was sentenced to one year imprisonment. Although the judgment is not in the record, it appears that it provided that the sentence for the escape conviction would begin on that date, with credit for the time the respondent had spent in jail since his recapture. This had the effect, whether intended or not, of making the sentence for escape run concurrently with that for burglary. The respondent’s burglary conviction was affirmed on appeal on June 28,1976, and he was confined in the penitentiary. Some time thereafter, it appears that the Supervisor of Resident Records at the State Department of Correction informed the respondent that, under the provisions of T.C.A. § 39-3802, it was mandatory that his sentence for escape be served at the expiration of his sentence for burglary, and that his records were being adjusted accordingly. T.C.A. § 39-3802 provides, in pertinent part, as follows:

If any inmate . . . shall escape or attempt to escape, he shall be indicted for an escape, and on conviction, be punished by imprisonment in the penitentiary for a term of one (1) to five (5) years to commence from and after the expiration of the original term.

The respondent then filed a pro se petition with the Circuit Court of Lauderdale County, asking that the trial judge order the Supervisor of Resident Records to set the sentences to run concurrently, as originally provided. The trial judge, noting the provisions of T.C.A. § 39-3802, dismissed the petition without a hearing. On appeal, the Court of Criminal Appeals reversed, with one judge dissenting. The majority of the court held that, although the October, 1975, judgment was erroneous as being contrary to the express provisions of T.C.A. § 39-3802, the trial judge could not correct it after it had become final.

In holding as it did, the court below relied on Stinson v. State, 208 Tenn. 159, 344 S.W.2d 369 (1961). That reliance was misplaced. In Stinson, the court correctly refused to alter a judgment that, although incorrect, was in conformity with the applicable statutes and had become final. We are not faced with that situation here, for in the instant case the judgment entered in the trial court on October 10, 1975, was in direct contravention of the express provisions of T.C.A. § 39-3802, and consequently was a nullity. As a general rule, a trial judge may correct an illegal, as opposed to a merely erroneous, sentence at any time, even if it has become final. See, e. g., In re Sandel, 64 Cal.2d 412, 50 Cal.Rptr. 462, 412 P.2d 806 (1966); State v. Shilinsky, 248 Iowa 596, 81 N.W.2d 444 (1957); State v. Fountaine, 199 Kan. 434, 430 P.2d 235 (1967); State v. Culver, 23 N.J. 495, 129 A.2d 715 (1957); State v. Leathers, 271 Or. 236, 531 P.2d 901 (1975): Frazier v. Langlois, 103 R.I. 607, 240 A.2d 152 (1968); 168 A.L.R. 706, 719. Thus, the trial judge in the instant case had both the power, and the duty, to correct the judgment of October 10, 1975, as soon as its illegality was brought to his attention.

However, that determination alone does not dispose of the case. The respondent alleged in pleadings in the trial court that he had pled guilty to the escape charge as the result of a plea bargain, one of the terms of which was that the sentence for escape and that for burglary would be served concurrently. If true, the respondent would be entitled to withdraw his plea of guilty to escape, and to proceed to trial on that charge. See Henderson v. State, 220 Tenn. 520, 419 S.W.2d 176 (1967). Accord, Application of Tinsley, 178 Cal.App.2d 15, 2 Cal.Rptr. 642 (1960). But see State v. Loux, 69 Wash.2d 855, 420 P.2d 693 (1966). However, as the trial judge did not hold a hearing on this question, we cannot resolve it on the record before us. We therefore remand the case to the trial court, with directions that a hearing be held on the issues raised by the respondent.

On remand, the trial court should note that, at present, the respondent’s sentence as imposed by the October 10, 1975, order is still in effect according to its original terms. The Department of Correction may not alter the judgment of a court, even if that judgment is illegal. See In re Sandel, 64 Cal.2d 412, 50 Cal.Rptr. 462, 412 P.2d 806 (1966). Furthermore, while, as we noted above, the trial court does have the power to correct the judgment of October 10, 1975, its order merely dismissing the respondent’s petition was ineffective to do so.

The judgment of the Court of Appeals is reversed, and the case is remanded to the trial court for further proceedings consistent with this opinion.

HENRY, C. J., FONES and HARBISON, JJ., and QUICK, Special Justice, concur.


text:
    TOWN OF NEWPORT, Petitioner, v. Ambrose BREWER d/b/a Ambrose Brewer Grading Contractor, Respondent.
    Supreme Court of Tennessee.
    June 5, 1978.

      Roy T. Campbell, Jr., Newport, for petitioner; Campbell & Hooper, Newport, of counsel.
    Ralph H. Noe, Jr., Morristown, for respondent; Noe & Hinsley, Morristown, of counsel.
   OPINION

BROCK, Justice.

The Town of Newport sues the defendant, Ambrose Brewer, for damages for injuries to the town’s streets alleged to have resulted from the negligence of the defendant in operating a fleet of large heavy dump trucks over its streets, the defendant well knowing that his trucks were destroying the pavement. The trial court heard the case without a jury and awarded damages in the sum of $3,000.00. However, upon appeal, the Court of Appeals reversed the judgment of the trial court and dismissed the plaintiff’s action, holding that the evidence did not show such an unreasonable use of the streets as would subject the defendant to liability for injury thereto. We granted the petition for certiorari filed by the Town of Newport.

The complaint alleges that the defendant is a grading contractor and that during the spring and summer months of 1975 he employed his fleet of large dump trucks to transport heavy loads of earth along a route over three streets of a residential area, Freeman Street, Woodlawn Avenue and Templin Street, between an excavation site and the site of the construction of a new vocational school; that these heavily loaded trucks destroyed the pavement of the streets, resulting in damages to the plaintiff in the sum of $5,418.00. Plaintiff alleges that the streets were narrow city streets which were not designed or constructed for the use of heavily loaded trucks but were designed for use only as residential streets and for traffic consisting of light weight vehicles. The gist of the complaint is in this allegation:

“Plaintiff alleges that the defendant knew or should have known that the use of heavy trucks with heavy loads would seriously weaken or damage said streets and the use of said trucks by the defendant was negligence which was the direct and proximate cause of the damages to said streets.”

The answer of the defendant denies each of the material allegations of the complaint.

The evidence shows that the streets in question were in a residential area of the town, that the pavement consisted of asphalt “hot mix” of a thickness of two inches laid on top of a minimum base and was not designed or intended to accommodate heavily loaded vehicles such as the trucks employed by the defendant in this case. Nevertheless, the defendant employed five to seven large dump trucks weighing, when loaded, from 15 to 22 tons, to haul large loads of earth from an excavation site through a residential neighborhood to a construction site in another part of town; that these trucks traversed the same three streets repeatedly, eight hours a day, five and one-half days per week, for a period of approximately eight weeks. It is undisputed that this use of the streets by the defendant’s vehicles caused extensive damage thereto, resulting in large portions of the pavement being destroyed. Moreover, it was known to the defendant and his employees from the very beginning of the project that this use of these streets was destroying them. Thus, the defendant Brewer testified:

“Q. And Mr. Brewer did you get any complaints while you were carrying on your operation out there about spilling dirt on the street out there and tearing up the street?
“A. Not to my knowledge, spilling no dirt on the street, but I knew it was tearing up the street.
“Q. You did know it was tearing up the street?
“A. Yes, I knew it was breaking the street.
“Q. And in spite of the fact that you knew that you went right ahead and completed your contract didn’t you?
“A. Yes.
“Q. And is it a fact, Mr. Brewer — is it a fair statement that both of those, two sections, of street we are talking about was just almost_
“A. Well, one place down there was.
“Q. As a matter of fact, it was so bad one man testified you would almost drag your car?
“A. No, it never did get that bad.
“Q. But — the surface of it was torn all to pieces?
“A. It was torn up because the City never put no base under it when they put the top down.”

We agree with the conclusion of the trial court that the evidence establishes negligence on the part of the defendant, in that, he subjected the streets in question to an unreasonable and extraordinary use, re-suiting in substantial injury thereto, although he was well aware that such use of the streets was destroying them. See Commonwealth, Dept. of Highways v. Pine Coal Co., Ky., 414 S.W.2d 134 (1967); Lincoln County v. Bruesch, 197 Or. 571, 254 P.2d 690 (1953); Annot., 5 A.L.R. 768 (1920); Annot., 53 A.L.R.3d 1035 (1973).

The principles of law governing liability for injuries to highways, streets or bridges are well stated in 40 Am.Jur.2d Highways, Streets, and Bridges § 605 at 82-83 (1968) as follows:

“It is elementary that persons using a highway, street, or bridge for the purpose of travel or transportation by the ordinary methods, in a reasonable manner, and to a reasonable extent, are not liable for the natural wear and tear of the way resulting from such use. Liability may result, however, from a wrongful use of the way which causes substantial injury thereto. There is no absolute right on the part of any person to use the way in an unreasonable manner so that the way may be injured and rendered impassable. The public authority has such an interest in the highways, streets, or bridges which it is its duty to repair and keep in order, as will give it a right of action against one who makes such repairs necessary by a wrongful, negligent, or unreasonable use of the way, notwithstanding the existence of a remedy against such persons by indictment or by proceedings to recover a statutory fine or penalty.”

We concur in these rules and principles.

The Court of Appeals relied upon the decision of this Court in Sumner County v. Interurban Transp. Co., 141 Tenn. 493, 213 S.W. 412 (1918). In that case the county sought to enjoin the defendant transportation company from using trucks upon the roads of the county. The court held that, absent legislation imposing weight restrictions on motor vehicles using the highways, the county could not interfere with the use by the defendant transportation company of its heavy trucks despite the fact that the roads of the county were being materially damaged by the trucks; and that there could be no recovery from the defendant for excessive use of the roads, there being no legislative enactment proscribing excessive use. The court was of the opinion that there could be no recovery for damage to public roads in the absence of a showing that the use by the defendant was unreasonable, and the court employed a very narrow test for reasonableness of use, one that we regard as too narrow for the conditions of today. Thus, the court said:

“The fact that the transportation company has used vehicles heavier than customary does not give the [county] court, or any one else, an action against it for such use. .
* * * * * *
“It must have been more than the weight of the vehicles and their loads, and must relate to the manner of the use, either in the management of the vehicles, so as to carelessly operate them upon the roads, or the reckless driving of the vehicle by the motorman.” 141 Tenn. at 500-01, 213 S.W. at 414.

To the extent that the decision in the Sumner County case is in conflict with the conclusions we reach today, it is no longer authority. The knowing subjection of a public street, highway or bridge to a use or load that it cannot accommodate and for which it was not designed by one who is aware that such use is inflicting substantial damage thereto, must, in our opinion, be regarded as an unreasonable and, therefore, negligent use for which the user may be held liable.

We reverse the judgment of the Court of Appeals and reinstate and affirm that of the trial court. This cause is remanded to the trial court for enforcement of the judgment.

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

      . See now, however, T.C.A., § 59-1101 et seq.


text:
    C. H. LOVE, Petitioner, v. Robert F. SMITH, Commissioner of the Department of Transportation for the State of Tennessee, Respondent.
    Supreme Court of Tennessee.
    June 5, 1978.

      McAllen Foutch, J. Hilton Conger, Smith-ville, for petitioner.
    Robert J. Ames, Asst. Atty. Gen., Nashville, for respondent; Brooks McLemore, Jr., Atty. Gen., Nashville, of counsel.
   OPINION

BROCK, Justice.

This is an action of eminent domain brought by the State of Tennessee to condemn a three acre strip of the defendant’s 161 acre farm for the purpose of widening State Highway No. 56. The right of the State to condemn is not denied; valuation of the land taken and incidental damages, if any, to the remainder were the only disputed issues. The case was heard by the judge and jury and resulted in a verdict totalling $21,250.00, consisting of $12,500.00 fair cash market value for the land taken and $8,750.00 in incidental damages to the remainder. The State appealed and the Court of Appeals reversed the judgment of the trial court and remanded for a new trial solely upon the ground that Charles Gentry, one of the defendant’s three expert witnesses, appears to have considered only the “highest and best use” of the property taken in arriving at his estimate of $41,500.00 as the total for value of land taken and incidental damages to the remainder. We granted the petition for certiorari filed by the defendant landowner.

The offending testimony is as follows:

“Q. And you didn’t value it as farm land at all. Is that right?
“A. You mean the balance of the land?
“Q. No, sir, the part taken. You didn’t consider it as farm land at all?
“A. No, sir.
“Q. What was it being used for on June 14, 1970?
“A. I valued it at what I considered to be the highest and best use that it is adaptable to as a subdivision. There are a lot of residential houses across the street in front of it. It is ideal for development as housing.
“Q. And you didn’t consider what it was being used for?
“A. No, sir.
“Q. Not at all?
“A. I considered it, in my opinion, as to what it was best used for on an open market.
“Q. Highest and best use; that use being residential purposes alone. Is that right?
“A. Yes.”

Although the court admitted this testimony over the State’s objection, it did instruct the jury that they were to consider all uses to which the land might reasonably be employed in reaching their verdict. We note too that this same witness on redirect examination testified as follows:

“Q. Mr. Gentry . . even though this land has been used for farming uses and purposes, does it have other uses?
“A. Yes, sir.
“Q. Would you name some more?
“A. Well it could be used for residential; it could be used for commercial for a shopping center or a grocery store.
“Q. And it could be used for farming, also?
“A. Right, or a factory or industry site.”

The other two expert witnesses who testified for the defendant, Hooper and Nichols, testified that in their opinion the defendant had suffered total damages of $36,000.00 and $41,000.00, respectively. Their estimates were based upon “all available uses.” The defendant testified that his total damages were $50,000.00, consisting of $20,-000.00 as the fair cash market value of the property taken and incidental damages of $30,000.00; the expert witness for the State gave an estimate of total damages in the sum of $6,525.00. As above noted, the total verdict rendered by the jury and approved by the trial judge was $21,250.00.

The objective of the court in an eminent domain proceeding is to ascertain and award just compensation to the landowner. The value of the land taken and the damages, if any, to the land remaining are to be based upon a fair, cash market value of the property on the date of the taking. See Nashville Housing Authority v. Cohen, Tenn., 541 S.W.2d 947, 950 (1976); Alloway v. Nashville, 88 Tenn. 510, 13 S.W. 123 (1890). And, as we held in Cohen, in determining what constitutes fair cash market value the jury must consider all capabilities of the property and all the legitimate uses for which it is available and reasonably adapted. Thus, it is improper to base the value of land solely upon its use for a particular purpose, such as, “its highest and best use.” Layne v. Speight, Tenn., 529 S.W.2d 209, 214 (1975); Alloway v. Nashville, supra. Of course, the highest and best use may be considered in determining value but it may not be the sole measure thereof. Davidson County Bd. of Education v. First American Nat’l Bank, 202 Tenn. 9, 301 S.W.2d 905 (1957). A corollary of this principle is that expert witnesses in expressing their opinions of value should not be allowed “to give their opinions as to the value of property for a particular purpose.” Alloway v. Nashville, supra, 88 Tenn. at 522-23, 13 S.W. at 125; Davidson County Bd. of Education v. First American Nat’l Bank, supra.

We are of the opinion that the testimony of the witness Gentry did offend the foregoing rule forbidding opinions based solely upon the “highest and best use” for which the property is adaptable; however, we are also of the opinion that the error was harmless. T.C.A., § 27-117, provides:

“No verdict or judgment shall be set aside or new trial granted by any appellate court, in any civil or criminal cause, on account of the improper admission ... of evidence . ., unless, in the opinion of the appellate court to which application is made, after an examination of the entire record in the cause, it shall affirmatively appear that the error complained of has affected the results of the trial.”

This statute places the burden upon the complaining party to show that he has been prejudiced by the error alleged. Art Theater Guild, Inc. v. State ex rel. Rhodes, 225 Tenn. 399, 469 S.W.2d 669, 671 (1971).

Ordinarily, an error in admitting evidence is harmless if the fact shown by the offending evidence is also shown by other evidence in the record which is competent. See Snow v. Owens, Tenn.App., 505 S.W.2d 479, 486 (1973). If it appears to the reviewing court from an examination of the whole record that the verdict is unlikely to be different in the event of a retrial, the error must be considered to be harmless. Hay v. Memphis Light, Gas and Water Division, 221 Tenn. 258, 426 S.W.2d 182, 187-88 (1968).

Our examination of the entire record in this case convinces us that it does not affirmatively appear that the error in admitting the testimony of Gentry has affected the result of the trial.

First, the trial judge cautioned the jury that it must not “. . . consider alone the highest and best use nor are you to consider alone the value for which it is least usable. You are to consider all of the uses in making up your verdict. And I will let this testimony go to the jury for its weight rather than admissibility.”

The total damages awarded by the jury and approved by the trial judge, $21,250.00, is well below the offending opinion of Gentry, $41,500.00, and is even below the valuations fixed by witnesses, Hooper and Nichols, $36,000.00 and $41,000.00, respectively, which were based upon “all available uses.” In fact, it appears highly probable that the jury arrived at their verdict by averaging the value given by the State’s witness, $6,525.00, with the lowest valuation given by the defendant’s witnesses, $36,000.00, thus arriving at the total of $21,250.00. Thus, if the testimony of Gentry had been excluded but that of the other witnesses retained, the prospect is that the award would have been the same or substantially so.

It appears that the jury heeded the cautionary instructions of the trial judge and fixed its verdict based upon the fair cash market value of the property at the time of taking, considering all capabilities of the property and all the legitimate uses for which it was available and reasonably adapted. We, therefore, conclude that the respondent has failed to affirmatively show that the error in admitting Gentry’s testimony affected the results of the trial.

By cross-assignments of error the respondent Commissioner complains of the action of the trial court and the Court of Appeals in refusing to permit the State to introduce evidence of the purchase price paid by the petitioner for the subject farm and in refusing to permit the State to cross examine the petitioner respecting the valuation placed upon the farm when he purchased it, as shown by an affidavit which petitioner executed at the time of purchase as required by T.C.A., § 67-4102, Item S(a).

The trial judge cited the following reasons for his refusal to admit direct evidence of the purchase price paid by the petitioner at the time he bought the farm in question in 1970, to wit:

“1. There have been additional improvements.
“2. The land features themselves have been altered.
“3. The deed itself doesn’t describe the same land in question.
“4. There has been an elapse of four years.
“5. The sale wasn’t a purely voluntary sale.”

An examination of the record shows that there was evidence to support these findings of the trial judge upon the basis of which he refused to admit the evidence in question.

Thus, there was evidence that the seller from whom the petitioner purchased the property was in financial straits at the time of the sale to the petitioner, so that, the sale was not altogether a free and voluntary one. See Railroad v. Hinds, 134 Tenn. 293, 183 S.W. 985 (1916).

The time lapse between the sale of the property to the petitioner and the taking of the strip in question by the State was approximately four and one-half years and the evidence shows that there had been a substantial increase in land values in the area of this property during that period of time. Therefore, exclusion of evidence of that sale upon the ground that it was not material was not error. Maryville Housing Authority v. Ramsey, Tenn.App., 484 S.W.2d 73 (1972); Polk v. City of Memphis, 15 Tenn.App. 73 (1932).

The proof also showed that the purchase price was for two tracts of land, one of which was not involved in this condemnation proceeding. There is no way of knowing what portion of the purchase price should properly be allocated to the tract from which the strip in question is being taken; hence, evidence of the purchase price paid for the two tracts together is of doubtful materiality upon the issue of the value of the land here involved. We find no error in the holding of the lower courts that direct evidence of the price paid by the petitioner for the farm in 1970 was inadmissible at this trial.

Likewise, we find no error in the action of the trial court in refusing to permit the State to cross examine the petitioner with respect to the affidavit which he made as required by T.C.A., § 67-4102, Item S, wherein he stated that the consideration which he paid for the farm or its value, whichever was greater, was $58,000.00. This affidavit was made by the petitioner at the time of his purchase of the farm in 1970 and is required by the statute in connection with the assessment and payment of a tax upon the transfer of land. In our opinion, the trial court correctly excluded such cross examination because of the mandate of another provision of that statute which is as follows:

“Any oath required in subsections (a) and (b) of this item of this section shall not be introduced as evidence in any proceeding had in connection with any condemnation action for the purpose of indicating the value of such real property.”

It is our opinion that this provision of the statute forbids the introduction, whether by way of direct evidence or cross examination, of evidence of the contents of the affidavit required by the statute.

Accordingly, the judgment of the Court of Appeals is reversed and that of the trial court affirmed and reinstated. This cause is remanded to the trial court for such further proceedings as may be required consistent with this Opinion. Costs incurred in this Court are assessed against the respondent.

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


author: FONES, Justice.

text:
    Ex parte CHATTANOOGA BAR ASSOCIATION, Petitioner.
    Supreme Court of Tennessee.
    June 12, 1978.
   OPINION

FONES, Justice.

The Chattanooga Bar Association has petitioned this Court for a determination of the following questions, to clarify procedures under Supreme Court Rule 42:

(1) Whether or not the Chattanooga Bar Association may continue to refer complaints to special masters, appointed by the Chancery Court of Hamilton County, pursuant to the opinion of this Court in Ex Parte Chattanooga Bar Association, 206 Tenn. 7, 330 S.W.2d 337 (1959).

(2) Whether or not the Chattanooga Bar Association may investigate and bring disciplinary proceedings in a court of competent jurisdiction pursuant to T.C.A. § 29-309, “both with respect to grievance matters raised before and after the adoption of Rule 42.”

(3) Whether the Chattanooga Bar Association may continue to police and prohibit unauthorized practice of law by laypersons.

(4) Whether the Chattanooga Bar Association may continue to arbitrate fee disputes between attorneys and their clients.

We have heard oral argument on behalf of petitioner and the Disciplinary Board of the Supreme Court.

I.

In 1959, the Chattanooga Bar Association filed a petition in the Chancery Court of Hamilton County, cause No. 35121, seeking the appointment of special masters for the purpose of conducting an inquiry into the unethical, unlawful and improper practices of attorneys in Hamilton County. The petition alleged that an increasing number of complaints against lawyers had been lodged with the Association complaining of violations of the law and of the legal ethics of the profession; that illegal and unethical practices had “increased to such an extent as to become open and notorious in the minds of the public not only in Hamilton County but throughout the area, bringing into contempt and disrepute not only the vast majority of attorneys and judges whose conduct is in conformity with the highest standards of the legal profession but also to cause public distrust of the judicial processes and administration of justice in the county to the detriment' of the public welfare.”

The Bar Association alleged that its grievance committee was unable to stop the increasing number of illegal and unethical practices which were prevalent in Hamilton County, because of its limited authority, and asserted that unless the Court took appropriate steps to control the conduct of attorneys, the unethical practices would “multiply” to the detriment of the public and the administration of justice in Hamilton County.

The Chattanooga Bar Association alleged that primarily the violations were (1) fomenting litigation and soliciting employment; (2) accepting employment where a conflict of interest exists and using confidential information obtained in violation of the fiduciary relationship; (3) fee splitting; (4) failure or refusal to account promptly and properly for funds obtained or held in a fiduciary capacity; (5) obtaining employment contracts, statements of witness and other legal documents under duress, misrepresentation and other improper circumstances; (6) contacting directly an adverse party represented by his own attorney.

The Chancellor appointed counsel to assist and advise the court and to oppose the petition, if in their judgment, such course was right and proper.

A motion to dismiss on the following grounds was filed and sustained:

“(1) no offending attorney was named or otherwise identified; (2) the court is without jurisdiction to order a general investigation into the conduct of attorneys; (3) the relief sought is foreign and unknown to the jurisdiction of the court; and (4) the jurisdiction for this type of petition is exclusively in the Supreme Court of Tennessee.” 206 Tenn. at 12, 330 S.W.2d at 339.

On appeal, Mr. Chief Justice Neil speaking for the Court said this:

“There is no merit in the contention that the petition should be dismissed because no person or persons are named, or otherwise described, as offenders against the honor and dignity of the court or the legal profession. But the Chancery Court and all other courts in Hamilton County are named as victims of unethical practice by officers of the courts, and who are sworn to protect its power and authority. The petition portrays a condition which we are bound to accept as true. The proper administration of justice in the courts of this State is paramount to all other matters, and requires the utmost vigilance by judges and officers alike to the end that its judgments and decrees bear no taint of dishonor. Considering the nature of the charges specifically pointed out in the petition the Chancellor must exercise his inherent authority to inquire as to who it is among many officers who are doing these dastardly things, and what judgments and decrees are affected thereby.” (Emphasis added.) 206 Tenn. at 13-14, 330 S.W.2d at 340.

Cases from other jurisdictions were cited supporting the principle that the court has inherent power to direct a general inquiry into the conduct of its own officers, when confronted with rampant unethical practices that threaten the integrity and honor of its own processes, judgments and decrees.

The Chancellor’s decree dismissing the petition was reversed and the cause was remanded with directions to appoint special commissioners “to conduct the investigation as prayed for under the strict supervision of the Chancellor.” 206 Tenn. at 18, 330 S.W.2d at 342.

The present petition exhibits two orders of the Chancery Court of Hamilton County in the cause remanded by this Court in December, 1959. The first order, dated May 24, 1960, appoints fifteen special masters who were members of the Hamilton County Bar, and three special masters who were members of the bar in the counties comprising the Twelfth Chancery Division of Tennessee. The jurisdiction of the latter three appointees was limited to offenses by Hamilton County lawyers committed within the Twelfth Chancery Division. The second petition, dated April 4, 1977, appoints thirteen special masters, all of whom are apparently members of the Hamilton County Bar, and none of whom were among the fifteen appointed in 1960. The 1977 order expresses the court’s gratitude for the long and faithful services of the prior group of special masters and recites that the responsibilities of special masters should be “shouldered” by different attorneys from time to time, which implicitly was the sole purpose of the order, as no express duties are mentioned therein.

The present petition alleges that the 1959 cause remains on the Chancery Court docket; that since the adoption of Rule 42 on December 18, 1975, the Chattanooga Bar Association has continued to receive complaints against its members and to conduct investigations through its grievance committee and “in conjunction with the Special Masters designated by the Chancery Court, pursuant to the authority of T.C.A. § 29-309 and the decision of this Court in Ex Parte Chattanooga Bar Association, supra." The petition then suggests that this Court’s enabling order in Rule 42 reciting exclusive jurisdiction in the Supreme Court to discipline attorneys is in apparent conflict with T.C.A. § 29-309 and the 1959 decision of this Court, and asks for clarification and guidance with respect to pending disciplinary matters in Hamilton County.

In our opinion, the 1959 decision of this Court authorized the appointment of special masters for a special and temporary purpose, to wit: to conduct a “general inquiry” into unethical and unlawful practices by Hamilton County lawyers, in response to the assertions by the Chattanooga Bar Association that it could not cope with the magnitude of the unethical practice that then prevailed. It is significant that this Court remanded the case with directions to conduct the investigation “as prayed for.” The necessary objective of the relief granted was to bring under control a temporary situation and stamp out or substantially reduce unethical practices. There was no prayer for a permanent or continuing disciplinary enforcement procedure for Hamilton County.

There are no allegations in the present petition that unethical practices of Hamilton County lawyers are so widespread and pervasive that extraordinary measures are required to bring such conduct within manageable limits. We believe we are entitled to, and we do assume, that the special masters appointed in 1960, together with the good offices of the distinguished chancellors that have served Hamilton County in the nineteen-year interval, have brought the unethical practices that existed in 1959 under control, that the necessity for a “general inquiry” as a means of focusing upon and disciplining those responsible for corrupting the processes of the courts no longer exists, and that the volume of disciplinary complaints in Hamilton County is not out of proportion to other comparable areas of Tennessee.

We do not believe that it was the intention of this Court in 1959 to establish a permanent disciplinary procedure to prevail in Hamilton County as an alternative to at least three other disciplinary procedures that were available at that time. It would be improper, in our opinion, to establish a permanent disciplinary procedure to be supervised by the chancellors of this state, or any one of them, that would include investigation, recommendation and, following to conclusion, routine disciplinary complaints. To do so would not only be an unwarranted imposition upon chancellors, but would exceed their inherent authority.

The basis for the inherent authority of trial courts in this sphere was touched upon by Mr. Justice Neil in the 1959 opinion as follows:

“To be sure there is a limitation upon the inherent authority of every court. But the courts must be trusted with complete authority, consistent with constitutional rights and privileges of all citizens, to protect its own honor from those who would prostitute its processes for unlawful personal gain.” (Emphasis added.) 206 Tenn. at 14, 330 S.W.2d at 340.

In July 1974, the Tennessee Bar Association petitioned this Court to adopt a single statewide disciplinary enforcement procedure and establish an office of disciplinary counsel for the reason that the several alternative disciplinary procedures then in effect were inadequate and unsatisfactory. After due notice and full opportunity to the lawyers of this state to be heard by written petition and oral argument, we promulgated a new Rule 42 on December 18, 1975, in Petition of Tennessee Bar Association, 532 S.W.2d 224. Therein we said this:

“We find, as thirty-nine other jurisdictions have, that the best efforts of voluntary bar associations acting through unpaid individual lawyers and committees cannot perform disciplinary investigations and enforcement at an acceptable level. The present disciplinary procedures of investigation and disposition of charges are inadequate to do justice to the public and the profession. The deficiencies in Rule 42 of this Court are a contributing factor to the ineffectiveness of present procedures.” 532 S.W.2d at 229.

It was our intention that new Rule 42 replace all existing procedures for disciplinary enforcement after an appropriate and necessary period of transition. At that time, the alternative procedures embraced within Rule 42, as amended July 19, 1965, allowed lodging a complaint with the Chief Justicé, Commissioners appointed by the Supreme Court and the Tennessee Bar Association and local bar committees, and thereafter involved different procedural routes to final termination. One of the many problems with the prior state of alternative procedures was the not infrequent effort to invoke a second or third alternative if not satisfied with the progress or the result of the first procedure utilized. We reached the conclusion, for the reasons stated in 532 S.W.2d 224, and Mr. Justice Har-bison’s concurring opinion in 539 S.W.2d 805 at 808-809, that a single disciplinary procedure should be established, and until this Court is presented evidence that the present rule is ineffective, in whole or in part, it shall remain the exclusive disciplinary procedure available to the legal profession.

As expressly stated in Section 1.2, Rule 42, the rule does not deny to any court such powers as are necessary to maintain control over proceedings conducted before it, such as the power of contempt. It also does not deny to any court the power to discipline any lawyer by suspension, or disbarment from practice in that particular court, for misconduct directly affecting the processes and proceedings of that court.

It follows that the proceeding in the Chancery Court of Hamilton County, Part I, cause No. 35121, should be terminated upon completion of the investigation and attendant responsibilities heretofore undertaken, and/or transfer of complaints received, to the Disciplinary Counsel. The petition does not recite the number or present status of pending investigations. We are content to leave entirely to the discretion of the Chancellor the decision in each pending complaint whether to continue to final termination under the authority of the procedures approved in Ex Parte Chattanooga Bar Association, supra, and conducted in cause No. 35121 of the Chancery Court of Hamilton County, or transfer for completion those complaints that were received subsequent to January 1, 1977; provided that, if there be any complaints received since January 1, 1977, upon which investigation has not commenced on the date this opinion is released, such complaints shall be referred to the Disciplinary Counsel. We are confident that petitioner will lend its best efforts in cooperation with the Chancellor, special masters and Disciplinary Board of the Supreme. Court to accomplish a smooth and expeditious transition and termination of the pending complaints.

II.

It also follows from what we have said in Section I of this opinion that T.C.A. § 29-309 is not available as an alternative disciplinary procedure for use by any bar association or bar committee. Any individual aggrieved by the act or conduct of an attorney may avail himself of the statute, or of course may file his complaint with the disciplinary counsel. See Chapdelaine v. Haile, 548 S.W.2d 656 (Tenn.1977).

III.

Rule 42 does not deal with the unauthorized practice of law by laypersons, and the bar associations of this state may and should take appropriate steps with respect to any such practice.

IV.

We applaud all efforts of bar associations to arbitrate fee disputes between lawyers and their clients and we do not regard pure fee disputes as being within the purview of Rule 42.

The cost of this proceeding is adjudged against petitioner.

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