Board of Revenue v. Crow

141 Ala. 126 | Ala. | 1904

MCCLELLAN, C. J.

In the House of Representatives of the Legislature of 1903 there was introduced and by it passed a bill to be entitled “An Act to amend sections 897, 898, 900, 914, 915, 916, 917 of Article 1, Chapter 19 of the Code of Alabama.” This bill coming into the Senate, that body adopted a substitute for it, then adopted some amendments to this substitute, then passed the bill as amended by the substitute as amended, and thereupon returned the bill to the House with a mesage that “the Senate has amended as therein shown, and as amended has passed the following House Bill: H. 763. To amend sections 897, 898, 900, 914, 915, 916, 917 of shown by the following entry in its Journal: “The action taken by the House upon this Senate message is shown by the following entry in its Journals: “The House proceeded to the consideration of the Senate-message: And the House non-eoneurred in the Senate amendments to bill, H. 763, the title of which is set out in the above and foregoing message from the Senate, and requested a committee of conference thereon. Com-Ujittee on part of the House: Messrs. Lusk, Foster, of isa, and Benners.” -Of this action the Senate formed by a message from the House, and fcgenate, as its Journal shows, * * * “insisted on its amendment to the House Bill 763 (the title of which is set out in the foregoing message from ¡he House) and acceded to the request of the House for a committee of conference thereon. The president pro tern appointed as the committee on the part of the Senate Messrs. Spraggins, Frazer and Nesmith.” Thus- is shown disagreement of the Senate and House on this House Bill 763, the raising of a committee of conference between the two houses and the submission, of this disagreement to that committee. It is in due course of the discussion to set forth here the nature of the bill upon which this disagreement arose, and the character and scope of the disagreement. As the bill passed the House and went into the Senate it amended section 897 of the Code, which section divided the state into thirteen Judicial circuits, by increasing the number of circuits to seventeen, the addition being of circuits! to be numbered fourteen,- fifteen, sixteen and seventeen, and apportioned the counties of the state to and among these seventeen circuits. It also amended section 898, having reference to the places of 'holding circuit courts; section 900 as to the times of holding courts in the several counties of the several circuits; section 914, as to special terms; section 915, as to notice of special terms, order of business, etc.; section 916, relating to witnesses and process, and 917, relating to adjourned terms. One change wrought by the house bill in section 897 was to- take counties of Limestone and Madison out of the 8th circuit and to constitute of them a new circuit numbered sixteen, leaving in the 8th circuit the counties of Cullman, Lawrence and Morgan. This section of the house bill was amended by the Senate in two particulars, first, bj taking Lawrence county out of the 8th circuit and putting it in the 16th, and, second, by providing for another circuit in addition to those added by the house bill, to be the 18th circuit and to be composed of the counties of Clay, Cleburne and Randolph. Many and material amendments other than -the turn just referred to- were adopted by the Senate to other sections of the house bill by its substitute therefor and its amendments of its substitute. These other amendments had reference in the main to the time for holding courts in several of the 'circuits, but there were others, providing, for examples, that no grand jury should be organized for the circuit court of Montgomery, “unless in the opinion of the presiding judge the public good requires it,” that “the solictor of the ninth circuit now residing in the territory constituting the seventeenth judicial circuit under this act shall discharge and perform the duties of solicitor therein until his successor is elected and qualified,” that “the judge of the ninth circuit as it now exists by law shall hold court and perform all other duties now required by law in such circuit until the' general election in 1904, at which election there shall be elected a judge for the ninth and seventeenth circuits who> shall take charge of their offices as provided by law,” that in the event of the establishment of the circuit court of Jefferson county as provided in House Bill 967, consolidating the several courts, of that .county, etc.,.this act in so far as it relates to the Tenth Circuit shall not go into effect, etc., etc.

Haiving thus in mind, in a general way, the provisions of the house bill when it went to the Senate and the nature of the amendments of it adopted by the Senate, we recur to the journals of the houses for the proceedings and reports of the members of the1 conference committee, and for the proceedings of the respective houses thereon. The Senate journal shows two such reports as follows: “Report of a Conference Committee.

“Mr. Spraggins submitted the following report:

“Mr. President: We, the undersigned as a majority of the committee of conference on the disagreement of the two houses on the substitute by the Senate for the house bill, H. 763, To amend sections 897, 898, 900,' 914, 915, 916, 917 of Article 1 of Chapter 19 of the Code of Alabama, beg leave to report that they recommend that the Senate recede from its amendment adding the Eighteenth Judicial circuit and from the amendment taking Lawrence county out of the eighth circuit and-putting it in the sixteenth circuit.

Respectfully submitted,

Robert E. Spraggins, ■of the committee on the part of the Senate.

J. A. Lusk,

J. M. Foster,

Augustus Benners,

Committee on part of the House.”

“Minority Report.

“Mr. President: We the undersigned members' of the committee of conference on the disagreement of the two houses on the senate substitute for the House Bill H. 763, To amend sections 897, 898, 900, 914, 915, 916, 917 of Article 1 of Chapter 19 of the Code of Alabama, report that we rcommend that the Senate do not recede from the amendments to the substitute.

Respectfully submitted,

C. C. Nesmith,

Tom S. Frazer,

Of the Committee on part of the Senate.”

In the further proceedings in the Senate, the report signed by Senator Spraggins and the members on the part of the house of the conference committee ivas styled, and treated as the “majority report,” and that signed by Senators Nesmith and Frazer the “minority report,”, of the committee. On the coming in of the reports, a motion was made to substitute tbe minority report for the majority report. This motion was lost;, and thereupon “the Senate concurred in the report, made by the majority of the committee,” the yeas and nays being entered upon the Journal.

On the House J ournal are the following entries:

“Report of Committee of Conference.

“The following report, was submitted by the House Chairman of the Committee of Conference. Majority report of conference committee: The undersigned, as a minority of the Senate Conference Committee on the substitute for House Bill No: 763, and the House Committee beg leave to re [tort that they recommend that the Senate recede from its amendment adding the eighteenth judicial circuit, and from its amendment taking Lawrence county out of the eighth circuit and putting it in the sixteenth circuit.

Robert E. Spraggins,

On part of the Senate.

J. A. Lusk,

J. M. Poster,

A. Benners,

On part of the House..”

“Minority Report.

“We, the undersigned members of the Conference Committee on House Bill 763 report that we recommend that the senate do> not recede from the amendments to the substitute.

C. ■ C. Nesmith,

Tom S. Frazer.”

“On motion of Mr. Lusk, the majority report of the committee of conference was concurred in. Yeas 37, nays 20.” The names of those voting- are set out on the Journal.

It further appears from the Journals that the bill as enrolled and signed by the Speaker of the House, and the President of the Senate contained all the amendments made by the Senate to the House bill except the two referred to in the reports of the conferees creating the eighteenth circuit) and transferring Lawrence county from the eighth to the sixteenth circuit, respectively; and it was the bill; as thus enrolled which was approved by the Governor.

On the foregoing statements as to House Bill 763 and as to the amendments of that bill by the Senate, and the foregoing excerpts from the Journals- of the two houses, the question for decision in this case is: Did the House concur in the Senate amendments to the bill? By the phrase “the Senate amendments” as here employed we mean all the amendments to- or changes of the House bill effected by the adoption of the Senate substitute and by the subsequent adoption of amendments to- the Senate substitute, other than and except t¡he amendment creating the eighteenth circuit and the amendment transferring Lawrence county from the eighth to the sixteenth circuit, proceeding, as we do in this connection, upon the assumption that the Senate receded from these two- amendments. Such are the. facts upon which the case is presented, and such is the question for decision.

The law applicable to these facts and by which this question is to be determined is embodied in Section 64 of the Constitution, as follows: “No amendment to bills shall he adopted except by a majority oil the House wherein the same is offered, nor unless the amendment with the names of those voting for and against the same .shall be entered at length on the Journal of the House in which the same is adopted, and no' amendment to hills by one House shall be concurred in by the other, unless a vote he taken by yeas and nays, and the names of the members voting for and against the same be recorded at length on the Journal; and no report of a committee of conference shall be adopted in either House, except upon a vote taken by yeas and nays, and entered on the Journal, as herein provided for tire adoption of amendments.” There is no pretense that the House by a yea and nay vote entered on its Journal concurred in any of the Senate amendments to this bill under and in conformity to the second provision of this section, that “no amendment to bills by one House shall he concurred in by the other” except by yea and nay vote entercl on the Journal. To the contrary, the House Journal, as we have seen, shows quite the reverse to be the fact. It not only shows no such, nor any concurrence, but it affirmatively and expressly shows that the House a o»-concurred in all the Senate amendments. This vote for non-concurrence was never reconsidered by the House. It stands to-clay as the action of the House on those amendments unless it can be said that the House subsequenty concurred in these amendments, its original vote of non-concurrence to the contrary notwithstanding, by adopting thel report of a conference committee rcommending concurrence, under and in conformity to the last clause of section 64, providing that “no report of a committee of conference shall be adopted in either House, except upon a vote taken by-yeas and nays and entered on the Journal' as herein provided for the adoption of amendments.” . It has indeed been mooted in this and other jurisdictions whether amendments adopted by one House and disagreed to by the other with request for conference could be constitutionally concurred in by the disagreeing House by the adoption of a conference report recommending such concurrence, the insistence being that under the second provision of section 64, or like provisions in other constitutions that House should rescind its vote of non-concurrence, and then comply with the recommendation of the committee, by a direct vote upon and concurring in the. amendments themselves; but it has been adjudged that a vote adopting such a report of a conference committee is in itself a vote of concurrence in the amendments which it recommends concurrence in. State v. Buckley’s Distributees, 54 Ala. 599; Ex parte Howard-Harrison Iron do., 119 Ala. 484; Browning v. Powers, (Mo. Sup.) 88 S. W. 943. To attain that end, however, in respect of the Senate amendments to this bill by this method of procedure, to effectuate concurrence. therein by the adoption by the House of a report of the conference committee, it was absolutely essential that such, report should■ have recommended concurrence by the House in the ¡Senate amendments. Nobody, questions this proposition. Counsel for appellants confess its soundness. In the nature of things it is clear beyond cavil: The adoption of a report can not. be the adoption of any thing not embraced in the report. As has appeared., the reports from this committee which were adopted by the Senate and House, respectively, referred only to certain two: of the Senate amendments, and to- these for the purpose only of recommending recession from them by the Senate. Neither the report made to the Senate nor that made to the House by the majority of the members of the joint committee recommended that the House concur in any thing. In neither is there the slightest reference to the other Senate amendments. Absolutely no' action by the House is recommended, suggested, or referred to in either of them. And so of the accompanying reports of two of the Senate conferees: They too relate alone and exclusively to the two- Senate amendments which only are referred to in the reports Avhich were adopted. It cannot he. got from any one of the reports or from all of them that the conference committee even considered any other than these two amendments. It cannot he got. from any one or from all the reports that the committee or any of its members intended to recommend concurrence by the House in the numerous other Senate amendments or in any of them. This would seem to he decisive of the question before ns, and the end of this case. But just here is interjected the main, indeed the only, contention of the appellants in support of the integrity of this act. While fully confessing that the reports contain no express' rcommendation as to concurrence in the Senate amendments, nor any sort of reference thereto, counsel for appellants insist that we should read a recommendation of concurrence into the report adopted by the House by implication from the submission to. the committee and the situation upon which it acted. We may concede the application of the doctrine of implication- to the report of a conference committee, and the enlargement thereby of the scope of the report beyond its letter; hut to have such effect the. implication must be a- necessary one-, it must-be one that, is necessary to the effectuation of the intent Avhich is expressed in the report, and Avithout according* operation to AA'liich the- purpose expressed in the report could not be accomplished. If what is expressed may he accomplished without extending the language by implication beyond its awn terms, to- so extend it could not he said to be necessary and it could not he so extended Avith requisite certainty and assurance- that thereby the effect of the report has not been extended- also beyond the intention of the conferees. For- the court to apply the doctrine of implication in such a case Avould be for the court to put into the report something which the makers of it- not only ha.Are not expressed, but which also there is no certainty that they intended should he covered by it — would he not to interpret or construe a report made by the committee, but to make a report for the committee, and to hold that the House, then acted not upon the report before it, but upon the report we now make. — to read into ivliat. they did say something which they obviously and confessedly did not say; and all this because we may be, in greater or less degree of conviction, of the opinion, based upon the probabilities of the situation, that they intended the. report to have larger operation than its. terms import, to say something which they have not said, and to recommend action which they have not recommended. Other judges might be of different- opinion; and though all judges and all courts for all time should concur in that opinion, it would yet he founded upon what appears to. us to be the probabilities in the premises, and never attain that certainty as to what provisions the. two houses have concurred in enacting into, law which the Constitution undoubtedly requires. Por if the Constitution makers may be said to have been more careful and particular and precise in -any one thing more than any other relating to. legislative procedure, it is in this very matter of certainty as to. the agreement of the houses upon the contents of bills, and specially to- the end that there should be no room for doubt, or mere inference, or inconclusive implication as to what amendments to bills in their legislative course have received the sanction of both, houses. The. recent Convention appreciating' the possibility disclosed in the case of Ex parte Howard-Harrisan Iron Co., supra,, of an amendment-by one house being incorporated into an ¡act without actual concurrence therein by the other house, and to eliminate even that possibility of provisions being enacted into law upon which both houses had not in fact concurred, added a new provision in section 64 requiring all amendments, to. be spread upon the Journals. Now, it must not only affirmatively appear upon the Journals that provisions of .an act which were put into, the bill by amendment, received the concurrence by yea and nay vote of each house, but it must also1 appear upon the Journals precisely what those amendments were. The purpose of the Convention in thei ordination of that section manifestly was that- only amendments which are set out on the Journals and which the Journals affirmatively show received the sanction of the house should be incorporated in the bill; and the provisions of that section are apt to the effectuation of that purpose. They require the fact of concurrence of one house in an amendment, adopted by the other to appear with affirmative certainty. They leave nothing to inference', nothing tO' conjecture, nothing to inconclusive implication. If concurrence is not shown with certainty it is not shown at all. If there is only a probability, even in the highest degree-, that concurrence was had, it has not been had. If the action taken can be said to be concurrence only by inconclusive implication, it cannot- be said to be concurrence at all. The implication insisted on here for appellants is of this character: It is an inconclusive implication. It is not. certain. It. is not a ncccunan/ implication upon the report made and the situation disclosed by the Journal on which the committee acted. The argument proceeds thus: There was disagreement- between the houses on all the amendments adopted by the Senate to House Bill 763. The whole matter of this disagreement was referred to the conference committee. The purpose of this reference was that the committee should, if it could, agree upon and report what the houses should do in settlement of the disagreement. The committee having the matter thus before them made a report. That report did not in terms declare that it was to- be a settlement of the whole disagreement; but for that- the whole matter was submitted to them to report a full settlement, if they could .so agree, the report must be read to recommend as a settlement, that the: Senate recede from certain two of its amendments- (which is the sole thing expressly recommended by the report) and by implication that the House concur in the other amendments. But the argument falls to- pieces just here: The committee was not bound to recommend a settlement of the whole disagreement. It was perfectly competent for them to- agree as to a part of the matters in controversy, and to- report, as to that part, disagreeing and making no report as to- the other part. It is by no means a necessary implication from their recommendation that the Senate should recede from certain two of the amendments that they also agreed that the House should concur in the others, and by the report a,s to- the two intended to recommend that the House should so concur. This recommendation of Senate recession from one thing certainly Avas not a recommendation of House concurrence in other things; and there Avas nothing in the situation upon which they acted atffording a necessary and certain implication that they intended also . to recommend House concurrence in other things. They may well ha.ye been unable to agree as to the other amendments; and those of the committee aaíio favored concurrence may have hoped that those tAvo being eliminated by the adoption of their report, the House itself would take independent action on the others by rescinding its vote of non-concurrence in them, or that another conference committee Avould be raised which could agree upon a settlement of the Avhole disagreement, while those of the committee who' opposed all the amendments Avere content AA'ith a report Avhich if adopted destroyed some of the amendments and left Them opportunity to oppose the others in the House. And so, too, the House might Avell have understood the report.' We cannot say, there is no basis for affirming AA'ith assurance of certainty that members of either the Senate or the House in voting to adopt this report, had any other purpose in víoav than the recession of the Senate from tlie two amendments referred to in the report. The Senate, previously insisting on all its amendments, did -nothing by this Amte further than to AvithdraAv its insistence, so far as these tAvo* were concerned, and consent to their being eliminated. Members of the House may Avell have voted for the report to get rid of two of the many amendments to all of which they Avere opposed, Avithout intending to retrace, and Avithout lowing at all in mind that they were thereby retracing their action on the others, and Avithout,intending to consent to their incorporation in the act, but, to the contrary, having it still in mind to persist in their opposition to them.

It is suggested by counsel that it is inferable from the Journals that of the Senate amendments, that creating an eighteenth circuit and that transferring Lawrence county from the eighth to the sixteenth circuit were regarded as the important amendments made by the Senate and constituted in reality the “bone, of contention” between the houses and that the other amendments were of secondary importance: and'really unobjectionable to the House, but were embraced in the vote of non-concurrence only because that was the most convenient and expeditious method of reaching a basis of settlement, it being the last day of the session and little time for action being left. All this may be true; it seems indeed not. improbable.. But it only leads to the conclusion, that, while the House deemed these other amendments of sufficient importance to be non-concurred in, or for other reason in fact did non-concur in them, they were never 'afterwards in the minds of either the conferees or the members of the House, so that the former made no recommendation as to them and the latter took no action upon them. However unimportant and secondary these amendments may have been in the estimation of the conferees and of the members, a status of legislative non-existence had' been given them by the vote of the House, and without revivifying affirmative action, which was never had, they continued non-existent. Though so unimportant, as to fail after non-concurrence to challenge the attention of the. committee and of the House, they were material amendments of the House hill, and so long as the legislative situation involved adoption of them by the Senate and dissent from them by the House, there was and could be1 no constitutional concurrence, of the two houses in the enactment of that bill with or without them. That situation transpired upon the non-concurrence of the House, in the Senate’s adoption of them, and it continues to this day. If the House really favored these other amendments it is unfortunate indeed that they should have been went to and inadvertently allowed to remain in the committee of conference.

We have said that a conference, report may be enlarged beyond its letter by necessary implication, and that thereby is meant that a thing which though not expressed in the report is yet necessary to be done.to consummate the purpose which is expressed, the report by implication covers that thing, and the adoption of the report is by implication the adoption of that thing. The point may be made clearer by illustration : If this report had recommended that the Senate substitute for House bill 763 should become law — or should be enacted; — or should pass — or some equivalent phrase — with the amendments as to the eighteenth circuit and Lawrence county eliminated, the necessary implication would have been that the Senate recede from those amendments and the House concur in all the others, and the adoption by the houses of the report would by necessary implication have been a recission of the Senate as to those amendments and a concurrence by the House in the others. So, too, possibly, if toe report had set forth that the committee as1 and for a full settlement of the whole disagreement between the houses, recommended that the Senate recede from two- certain amendments, the adoption of that report might by necessary implication have involved recission by the; Senate from those amendments and concurrence by the House in the others, since without such action there, could be no full settlement of the whole disagreement. But toe report made was net of this sort. From its terms read in connection with the 'situation nobody can know, and it cannot be affirmed that the committee, intended to recommend concurrence by the House or that the House understood that its adoption was concurrence.

The fact of concurrence by the House must appear' on its Journal by yea. and nay vote. It cannot be shown in any other way. It cannot exist in any other way. Hence1, if it be conceded that this bill was to the knowledge of the House enrolled as having been enacted with these amendments in it, and that no dissent was made, m>. presumption of valid enactment arose therefrom'. If that could be allowed, all the procedure prescribed by the Constitution could be wholly disregarded. There are presumptions which attend a bill which has been signed by the presiding officers and approved by the governor; but tliey do not obtain in respect of any matter which, the Constitution requires to affirmatively appear on the journals. The supposition; of the members of the legislature that they have adopted, or of the two houses that they have concurred in the adoption of an amend-, ment cannot take the place of a yea and nay vote1 entered on the journals.

We are net impressed by the argument that the House must have intended concurrence in the other amendments by voting for a report which in terms recommended only that the Senate recede from two specified amendments, because — -it is said — to accomplish only that recession it was not necessary for the House to vote at all, and unless it intended something more than that, viz., concurrence in the other amendments, its action was vain, useless and foolish. Now, we cannot affirm that the House would not have done a-vain and useless', and, therefore, foolish thing. No man or body of men; is immune from that sort of action. And hence, granting the premises of this argument, the conclusion stated is not demonstrated.. The consideration — standing alone — might tend to the conclusion that the House intended something more than .mere concurrence in the Senate's recession, but it would not enforce that conclusion with the certainty that is requisite here. But it does not stand alone. There is another consideration which deprives it of even evidential force; and that is that, as shown by its Journal, it was the practice and custom of this house to- Arote on all conference reports, whether they recommended, expressly or by necessary implication, action by both houses or action by the Senate alone.

Moreover, we are not prepared to say that it is a vain, useless and foolish thing for the House to1 adopt the report of a conference committee which recommends only that the Senate recede from an amendment which1 it has made to a house bill. To the contrary, it would seem that such adoption is necessary to get the amendment out of the bill. Such bill, is in the House: The Senate lias lost control of it, and is powerless so .long as it remains in the House to amend it by striking out an amendment it has engrafted upon. So long as this sit-nation obtains, tbe only way for the Senate to recede from such amendment is with the consent of the Hon.se and by the adoption of a, conference report recommending it, and like adoption by the House is the recognized mode of evidencing the consent of the House to recession by the Senate. Indeed we think it may be said generally that nothing can be accomplished through or by a conference report unless both houses adopt it. So, we conclude, that the fact that-the House also adopted this report proves nothing nor tends to prove any thing beyond its concurrence in the Senate’s recession from the two specified amendments.

It is claimed for appellants.that- the. case of Abernathy v. State, 78 Ala. 411, has a bearing on the question here favorable to their1 position. This question, nor any like it was raised, discussed or decided in that case. In the opinion, however, there is a statement as to what the report of a conference committee-recommended, etc., Avliieh gives to that report some similitude ix> this one, and it appears that legislative action beyond the express terms of the report as stated by the court was had and upheld as valid; but the Journals of that legislature demonstrate that this action which might appear from the opinion to- have resulted from the adoption of the report was in fact taken before the conference was requested, and was effected by votes of the. Senate amending a House amendment and then adopting it. as amended. The proceeding may have, been anomalous, but it •was not open to the objections made here.

We believe we have discussed all the positions taken by counsel in support of the claim that this bill as signed and approved became a valid enactment, and we have stated the facts and considerations which have constrained us to the conclusion that it was never constitutionally passed by the legislature; and this opinion might properly end here. But it is thought that one other point made by the bill of. complaint should be discussed in a tentative way. That point is that the conference committee made no report at all on House Bill 763. There .are, as we have seen, only two- ways, by 'which one House can concur in amendments adopted by the other. One is by yea and nay vote of concurrence-The other by adopting by yea and nay vote the “report of a, committee of conference” which recommends concurrence. — Const. § 64; State v. Buckley's Distributees, supra; Ex parte Howard-Harrison. Co., supra. Now, by all the authorities and in the nature, of things, a report of a conference committee must be one in which a majority of the conferees of each house concurs, for a conference committee is essentially two distinct committees each of which acts by a majority, and its “report must be. signed by a majority of the members of each House composing fihe commd'ttee.”-^-Const. Manual & Dig. p. 314; Cushing Par. Law.

This sort, of report, the only report indeed which can be. said to be the report of a conference committee, must have been, intended by the Conistitutional Convention in the ordination of Section 64, and it would Seem therefore, to be the only sort of report to constitute a basis for concurrence in amendments under the last clause of that section. Of course, the dissenting House could upon the failure of a conference committee to make, this sort of report, reconsider its vote of non-concurrence and thereupon by yea and nay vote as provided in the second clause of section 64 upon the amendments themselves concur in, them, but it would seem that upon such failure that course is the only one by which the House could concur. No report of a conference committee was made to either house in this instance-. One report made to each lionise was signed by all the House members of the dual committee and by a mmorlty of the Senate conferees, and the other report made to- each house was sign eel by a majority of the. Senate conferees and by none of the House members. The reports -which were adopted by the Senate and House, respectivey, show that only one of the three Senate conferees concurred in them. We use the plural in this connection, because what are styled “majority” reports- on the Journals of the two houses, are not identical in language. We decide nothing on this point; but it seems to us-at--least open to grave doubt whether even had these so called majority reports recommended that action, the houses by adopting them would- constitutionally have eliminated the two- specified Senate amendments and concurred in the others.

Tbe decree of tlie chancery court overruling the de.murrers to and tlie motion for want of equity to- dismiss tlie bill of complaint proceeding as it did, upon tbe ground that this bill, signed' approved and published as an act was not passed by the legislature, must be affirmed.

Affirmed.