OPINION ON PETITION TO REHEAR
In this case we held that T.C.A. § 40-2707 was not unconstitutional as a violation of the separation of powers concept set out in Article II of the Constitution of Tennessee, that being the only basis for attack upon the statute that was properly before this Court. See Rules 14(2), 14(4) and 14(5).
The Supreme Court case of Farris v. State, Tenn., 535 S.W.2d 608, 1976, held T.C.A. § 40-2707 to be unconstitutional because of an improper caption, but only one justice was of the opinion that it violated Article II of the Constitution of Tennessee. Under our rules, that was the only viable question in this case. Hence, Farris is not in conflict with the opinion heretofore entered.
In its opinion on the Petition to Rehear in Farris, supra, filed March 30, 1976, relief was again denied Farris because he had not properly assigned the error, the Supreme Court having “neither the disposition nor the duty to search the record and decide cases and controversies on the basis of unassigned error”.
In our original opinion we relied upon Sharp v. State, Tenn.Cr.App., 513 S.W.2d 189 (1974), which was dispositive of the actual question presented. In Farris, supra, our Supreme Court explicitly said:
“In Sharp, the Court of Criminal Appeals * * * sustained Chapter 163 of the Public Acts of 1973 in the face of a challenge asserting that the Legislature invaded the province of the Judicial Branch of the government; however, *339that case did not touch upon the issue here presented. (Emphasis supplied.)
* * * * * *
“In summary, as to the precise question herein involved, we address a matter of first impression. * * * ”
We hold that Farris does not mandate a rehearing in this case.
Upon reviewing the case sub judice, we find no reason to strain to apply Farris to this case, as justice has been done in sentencing Jackson to eighty years for a vicious killing of an innocent robbery victim.
WALKER, P. J., and DUNCAN, J., concur.ON PETITION TO REHEAR