OPINION ON PETITION TO REHEAR
PURYEAR, Judge.Counsel for complainants have filed a very earnest and respectful petition to rehear in which they insist that complainants are much aggrieved by that portion of our opinion in which we held, that to the extent Sub-section 8 of T.C.A. § 67-502 purports to grant tax exempt status to a leasehold estate which is not being used for a purpose that is purely religious, charitable, scientific, literary or educational, this subsection 8 is unconstitutional and void.
In support of this petition, counsel have filed an able brief in which they rely upon certain cases which they say were, through inadvertence, not fully discussed in their original brief and argument.
Of course, the fundamental distinction between the case at bar and these cited cases is the fact that in the case at bar only the leasehold and not the basic fee in the property under consideration is sought to be assessed by the County, whereas, in these cited cases, an assessment was attempted to be made without consideration for distinction between the two estates (leasehold and basic fee).
In our original opinion we emphasized the fact that we are here dealing with property in which there exists two separate and distinct estates, one a fee simple and the other a leasehold, citing T.C.A. Sections 67-606 and 67-1805 and the case of Jetton v. University of South (1908), 208 U.S. 489, 28 S.Ct. 375, 52 L.Ed. 584.
It is the leasehold estates which do not come within the ambit of constitutional legislative authority to grant tax exempt status under Section 28, Article 2, of the Constitution and the effect of our original opinion is not intended to extend beyond the peculiar facts and circumstances which were and are before this Court in the case at bar.
*791Moreover, the tax exemption effect of Vanderbilt University v. Cheney (1905), 116 Tenn. 259, 94 S.W. 90, and M. E. Church South v. Hinton (1893), 92 Tenn. 188, 21 S.W. 321, has been considerably diminished or narrowed by the opinion of the Supreme Court in Nashville v. State Board of Equalization et al. (1961), 210 Tenn. 587, 360 S.W.2d 458, wherein that Court said:
“The scope of exemption, as applied in the Cheney and Hinton cases, was somewhat narrowed in Ward Seminary v. City Council (1913), 129 Tenn. 412, 167 S.W. 113, which involved the 1907 Act. There, an educational institution, a corporation organized for profit, not general welfare, owned several pieces of real estate, some used in carrying on the school and some not so used but rented to others for business purposes. It was held that the property used for the purpose of the school was exempt, but that which had been rented for business purposes was not exempt.
There, Chief Justice Green said that the Fisk, Hinton, and Cheney cases had held that certain income-bearing property, [although] ‘not actually used for religious, charitable or educational purposes,’ was exempt, upon the theory that the income had been used for such purposes; but that in those cases the property was owned by corporations not for profit but for general welfare; and that the rule applied to them would not be extended to a corporation for profit. He said:
‘The doctrine of Methodist Episcopal Church, South, v. Hinton, and of other cases above cited, was announced by divided courts, and has been subjected to criticism. It certainly will not be extended. * * *’ (129 Tenn. 421, 167 S.W. 115). For further criticism of the Hinton case, see Zollman American Law of Charities (1924) section 724. (emphasis supplied)
The tax exemption was further narrowed in State ex rel. v. Waggoner (1931), 162 Tenn. 172, 35 S.W.2d 389. There, Ward-Belmont College owned a house, located just across the street from its campus, which it furnished ‘rent-free’ as a residence to its vice-president and business manager. It claimed exemption for the house on the ground that it was being used primarily for an educational purpose and only incidentally as a home of the school’s employee. The Court denied this claim.”
* * * * * *
“Thus, it is seen that the scope of tax exemption of property of such institution has been steadily narrowed by decisions of this Court under our successive revenue acts, including the Act of 1907 (1932 Code sec. 1085 (2); and that Act was expressly repealed, and the exemption further restricted, by the Act of 1935 (ch. 47, now T.C.A. § 67-502(2).”
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“ . . . . it is quite clear that this Act excepts and exempts real estate of such an institution from the common burden of taxation only if and when such real estate
(1) is ‘occupied by such institution or its officers exclusively for carrying out thereupon one (1) or more of the purposes’ of its charter, and
(2) is being ‘used exclusively’ for such purpose, and any part of such real estate ‘not so used exclusively’ for such purpose, ‘but leased or otherwise used for other purposes,’ shall be taxed to the extent of its value.”
(Supra, pp. 599, 600, 601, 605, 360 S.W.2d p. 464)
In LaManna v. University of Tennessee (1971), 225 Tenn. 25, 462 S.W.2d 877, the Supreme Court merely upheld the constitutionality of T.C.A. 67-502(2) insofar as it provided that: “all property of any educational institution owned, operated, or con*792trolled by the state of Tennessee as trustee, or otherwise shall be exempt from taxation.” 225 Tenn. p. 28, 462 S.W.2d p. 879.
In that case the Supreme Court recognized two standards of exemption, first, for educational properties owned by private institutions and, second, for educational properties owned, operated or controlled by the State of Tennessee, citing State ex rel. Beeler v. Nashville (1942), 178 Tenn. 344, 157 S.W.2d 839.
This Court is not inclined to further extend the “use of proceeds” test by applying it to a leasehold interest which is acquired by lease contract from a private educational institution which leasehold interest is being used for a nonexempt purpose, especially in view of the fact that the application of such test was, at least, partially rejected in Nashville v. Board of Equalization, supra.
When the General Assembly repealed T.C.A. 67-502(8) by enactment of Chapter 226 of the Acts of 1973, that body likewise partially rejected such “use of proceeds” test by expressly forbidding its application in the year 1973 and subsequent years insofar as rent from a private educational institution’s realty is concerned. Supra, Sec. 5, Subsec. 2.
For the foregoing reasons, the petition to rehear is respectfully denied.
SHRIVER and TODD, JJ., concur.