State ex rel. Swann v. Pack
| Decision Date | 08 September 1975 |
| Citation | 527 S.W.2d 99 |
| Parties | STATE of Tennessee ex rel. Henry F. SWANN, District Attorney General, Petitioner, v. Liston PACK, Pastor of the Holiness Church of God in Jesus Name, et al., Respondents. |
| Court | Tennessee Supreme Court |
R. A. Ashley, Jr., Atty. Gen., William C. Koch, Jr., Asst. Atty. Gen., Nashville, Henry F. Swann, Dist. Atty. Gen., for petitioner.
Edward Michael Ellis, Knoxville, Theo J. Emison, Jr., Alamo, for respondents.
We granted certiorari in this case to determine whether the State of Tennessee may enjoin a religious group from handling snakes as a part of its religious service and in accordance with its Articles of Faith, on the basis of such action constituting a public nuisance.
The Circuit Court at Newport permanently enjoined the defendant, Pack, Pastor of The Holiness Church of God in Jesus Name, of Newport, and one of his Elders from 'handling, displaying or exhibiting dangerous and poisonous snakes', predicating its action primarily upon a finding that 'the handling of said dangerous and poisonous snakes is in violation of T.C.A. § 39-- 2208 1 and that said practice is done in the presence of children and other people attending church services. . . .'.
The Court of Appeals, in a split decision, found the injunction to be overbroad and modified it to read that the respondents
are permanently enjoined from handling, displaying or exhibiting dangerous and poisonous snakes in such manner as will endanger the life or health of persons who do not consent to exposure to such danger.
Petitioner assigns a single error, viz.:
The Court of Appeals erred in holding that the State could not completely enjoin violations of T.C.A. § 39--2208 as common law public nuisances.
As a triggering device to invoke the jurisdiction of this Court, this assignment is sufficient; however, it does not raise the precise issue before the Court for determination. This follows from the basic principle that a common law nuisance is not founded on any statute and a public nuisance may exist with or without statutory predicate. While other questions lurk in the record, we deem the critical and controlling issue to be as set forth in the opening sentence of this opinion.
To place this controversy in proper perspective, we note the pleadings and trial proceedings.
On April 14, 1973, the District Attorney General of the Second Judicial Circuit filed his petition in the Circuit Court at Newport charging that respondents Pack and certain designated Elders, including Albert Ball, had been handling snakes as a part of their church service 'for the last two years'; that this was one of the rituals of the church to test the faith and sincerity of belief of church members; that Pastor Pack 'has become anointed', along with other members of the church and has 'advanced' to using deadly drugs, to wit, strychnine; that at a church service on April 7, 1973 snakes were handled and an 'Indian boy was bitten and his arm became swollen'; that two named church members drank strychnine and died as a result; that, at the funeral of one of these, Pastor Pack, and others, handled snakes; and that Pastor Pack has proclaimed his intentions to continue these practices. The prayer was for an injunction enjoining respondents 'from handling, displaying, or exhibiting poisonous snakes or taking or using strychnine or other poisonous medicines.' In the alternative, and upon failure of the named defendants to cease and desist, petitioner prayed that the church be padlocked as a public nuisance.
By order entered April 21, 1973, the trial court found these facts to be true; that § 39--2208 had been violated and ordered that the defendants be
(e)njoined from handling poisonous snakes or using deadly poisons in any church service being conducted in said church or at Any other place in Cocke County, Tennessee until further orders of the Court. (Emphasis supplied).
Why the judge of a court having personal jurisdiction of the parties and state-wide jurisdiction of the subject matter elected to permit these defendants to practice snake handling as a part of their religious worship in ninety-four counties of the state and deny them the same identical right in the remaining county is not clear.
Moreover the record reflects that immediately following the above quoted language the trial judge added, in his own handwriting, the following:
However, any person who wishes to swallow strychnine or other poison may do so if he does not make it available to any other persons.
The further result of this order was that defendants could not practice snake handling, from which death Might ensue 2 but could drink strychnine, a highly poisonous drug. 3
The record reflects no explanation for this incongruity.
Thereafter, the District Attorney General filed a second petition alleging stepped up activity, at the Holiness Church. On July 1, 1973, 'a national convention for the snake handlers' cult of the United States' was held and 'many dangerous and poisonous snakes were displayed' and one of the handlers had been bitten and was in a Chattanooga hospital recuperating. 4 Services were conducted on July 3 and July 7, 1973, and again snakes were handled. All this led the District Attorney General to conclude and charge that Cocke County was in imminent danger and likely to 'become the snake handling capital of the world'.
In response to this citation, respondents were held in contempt, fined and sentenced, but sentences were suspended in each case, 'until the said defendant handles poisonous snakes at said church are (sic) any other place In Cocke County, Tennessee.'
Up to this point defendants had not been represented by counsel.
By order entered August 18, 1973 respondents were jailed in default of payment of the fines theretofore imposed and directed to appear on August 25, 1973 to show cause why they should not be required to serve the sentences.
The hearing was conducted on August 25, 1973 and September 27, 1973. There is no substantial factual dispute between the parties. In fact the entire factual situation is dependent upon the pleadings, the testimony of one witness, various stipulations and exhibits.
It was stipulated that various witnesses would testify that they had never seen anyone other than designated representatives of this particular church handle snakes; that they never saw any person who was either a parishioner or a nonmember present at the church services who had ever been placed in immediate danger.
It was further stipulated that an anthropologist would testify that snake handling is a legitimate part of their religious service; that she had never seen anyone endangered by handling snakes; that proper precautions were always taken; and that handling snakes is a legitimate and historic part of the church service. Two other witnesses would verify this testimony.
It was further stipulated that the 'Indian boy', bitten at one of the services, was thirty years old.
It was further stipulated that the Holiness Church of God in Jesus Name is located about a half mile from the nearest paved road, and at the end of a dead-end, dirt, private, mountain road and on property owned by the church.
The issues were not fully developed and the record is meager.
The State made no contention that this is not an organized religious group nor did it question that the practice of handling snakes was a recognized part of its Articles of Faith, nor did it question the sincerity of the conviction of the respondents.
By final decree the trial judge made the injunction permanent, directing that defendants 'be perpetually enjoined from handling, displaying or exhibiting dangerous and poisonous snakes at the said Holiness Church of God in Jesus Name, Or at any other place in Cocke County, Tennessee.'
The history and development of the Holiness Church is relevant.
The Mother Church 5 was founded in 1909 at Sale Creek in Grasshopper Valley, Tennessee, approximately thirty-five miles northeast of Chattanooga, by George Went Hensley. Hensley was motivated by a dramatic experience which occurred atop White Oak Mountain on the eastern rim of the valley during which he confronted and seized a rattlesnake which he took back to the valley and admonished the people to 'take up or be doomed to eternal hell.' 6
Hensley, and his followers, based their beliefs and practices on Mark 16, verses 17 and 18, which in the Authorized or King James version, read as follows:
And these signs shall follow them that believe; in my name shall they cast out devils; and shall Speak with new tongues; They shall take up serpents; and if they Drink any deadly thing, it shall not hurt them, they shall lay hands on the sick, and they shall recover. (Italics ours) 7
The church Hensley 8 founded spread throughout the south and southeast and continues to exist today, primarily in rural and relatively isolated regions throughout this area. The Holiness Church of God in Jesus Name, in Cocke County, is a part of this movement. LaBarre, in They shall Take Up Serpents, asserts that '(t)he roots of the movement lie deep in American religious history' and asserts that it is one of the 'offshoots of Methodism.' Writers seem to be in general agreement that it is a 'charismatic sect, or cult, or group of the Pentecostal variety.' 9
To say that this is not a conventional movement would be a masterpiece of understatement. Its beliefs and practices are, to say the least, unconventional and out of harmony with contemporary customs, mores and notions of morality. They oppose drinking (to include carbonated beverages, tea and coffee), smoking, dancing, the use of cosmetics, jewelry or other adornment. They regard the use of medicine as a sure sign of lack of faith in God's ability to cure the sick and look upon medical doctors as being for the use of those who do not trust God. When greeting each other, the men use the 'holy kiss', a mouth-to-mouth osculation ...
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