BRADBURY & STAMM CONSTRUCTION CO., Inc.; Goodyear Aircraft Corporation, a corporation; Telecomputing Services, Inc., a corporation; General Dynamics Corporation, a corporation; Hughes Aircraft Company, a corporation; and The Ryan Aeronautical Co., a corporation, Plaintiffs-Appellants and Cross-Appellees, v. BUREAU OF REVENUE of the State of New Mexico; Robert Valdez, Commissioner of Revenue; Carl Folkner, Director, School Tax Division, Bureau of Revenue, Defendants-Appellees and Cross-Appellants.
No. 7105.
Supreme Court of New Mexico.
June 11, 1962.
372 P.2d 808 | 70 N.M. 226
John W. Chapman, F. Harlan Flint, Sp. Asst. Attys. Gen., for appellees and cross-appellants.
This appeal challenges the constitutionality of Section 1, Chapter 195, Laws of 1961, providing exemption of certain sales to the United States, the State of New Mexico and non-profit organizations from payment of the Emergency School Taxes.
Chapter 73, Laws of 1935, the Emergency School Tax Act, imposed a privilege tax (the so-called Sales Tax) upon gross sales and services, earmarked for the public
The questioned legislation is that which provides exemptions from the so-called sales tax to the government of the United States, its agencies and departments; the state and its political subdivisions; and to certain charitable organizations. The attempt to tax sales of property and services to the United States has had a long and stormy history as shown by the many amendments to the sales tax law providing exemptions to the United States and New Mexico. The Emergency School Tax Law, enacted in 1935, originally exempted from the tax sales made to the United States; the state and its political subdivisions; and, to any business or transaction exempted from taxation by the Constitutions of the United States or New Mexico. Amendments to this section (§ 72-16-5, N.M.S.A. 1953) were enacted in 1941 and 1947 which are not pertinent to the issue now presented. Exemptions from sales to the United States and its agencies were completely removed by Chapter 187, Laws 1957, but the exemptions to the state and its political subdivisions were retained. In 1959, sales of tangible personal property to the United States and sales of tangible personal property and services to the state were exempted from the tax.
Chapter 195, Section 1, Laws of 1961 (
“72-16-5. Exemption of sales to United States, state agencies, societies, hospitals, fraternal and religious organizations not for profit.—None of the taxes levied by the Emergency School Tax Act, as amended * * *, shall be construed to apply to:
“A. Sales of tangible personal property, other than metaliferous [sic] mineral ores, whether refined or unre-
fined, made to the government of the United States, its departments or agencies; “B. Sales of tangible personal property, other than metaliferous [sic] mineral ores, whether refined or unrefined, made to the state of New Mexico or any of its political subdivisions;
“C. Sales of tangible personal property, other than metaliferous [sic] mineral ores, whether refined or unrefined, made to non-profit hospitals, religious or charitable organizations in the conduct of their regular hospital, religious or charitable functions.
“D. The gross receipts from any lump sum or unit price contract for a particular project entered into prior to the effective date of this act, if the contract would not by its terms allow the contractor to increase his price to cover any additional privilege tax which were to be levied against him.”
No dispute exists as to the facts. None of the taxes involved here were paid by reason of the sale of any tangible personal property directly to the United States or any of its agencies or departments. The protested taxes involved arose out of contracts by appellants with agencies of the United States for services. The protested payments, with the exception of Bradbury & Stamm Construction Co., Inc., were all made after the effective date of the 1961 law. Separate judgments were entered, each holding that subsection D of the 1961 act violates the equal protection provision of the Fourteenth Amendment to the Constitution of the United States and of Article II, Section 18 of the Constitution of New Mexico, and declaring the remaining portion of the statute severable and valid. The result was that recovery of the protested taxes was denied in the judgments in the cases of all the appellants except Bradbury and Stamm. Bradbury & Stamm was allowed recovery for those taxes paid under protest by it before enactment of the 1961 statute. Each of the judgments were appealed, and by stipulation and order of court were consolidated for purpose of appeal to this court. The appeal presents no issue as to the correctness of the ruling of the trial court in declaring subsection D invalid, and we express no opinion respecting such ruling.
The questions presented by the appeal are (1) assuming subsection D to be in-valid, are the remaining portions of section 1, Chapter 195, Laws 1961, severable and enforceable? And, (2) does the imposition of the tax upon one rendering services to the United States constitute a prohibited tax to the United States?
It is well established in this jurisdiction that a part of a law may be in-valid and the remainder valid, where the invalid part may be separated from the
Chapter 195, Laws 1961, does not contain a severability clause, and appellants strongly urge that its absence creates a presumption that the legislature intended the entire section to fail if any of its provisions be invalid. In approaching the question of the constitutionality of a statute, we do so bearing in mind that every presumption is to be indulged in favor of the validity and regularity of the legislative act. State v. Armstrong, 31 N.M. 220, 243 P. 333; State v. Thompson, 57 N.M. 459, 260 P.2d 370; State v. Mechem, 63 N.M. 250, 316 P.2d 1069; Dickson v. Saiz, 62 N.M. 227, 308 P.2d 205.
The fact that the 1959 amendment to
This court is committed to the proposition that all rules of statutory construction are but aids in arriving at the true legislative intent. In re Vigil‘s Estate, 38 N.M. 383, 34 P.2d 667, 93 A.L.R. 1506; A. T. & S. F. Ry. Co. v. Town of Silver City, 40 N.M. 305, 59 P.2d 351, “* * * and should never be used to override same where it otherwise plainly appears * * *” Janney v. Fullroe, 47 N.M. 423, 144 P.2d 145.
Appellants assert that Safeway Stores, Inc. v. Vigil, supra, is controlling and com-
The “and who sells” clause was held to create an improper classification of retailers and to make the definition of retail dealers invalid. Because the act contained a severability clause, it was argued that the in-valid “and who sells” clause could be eliminated from the definition and the remainder held valid. This court held the invalid portion not separable from the remainder of the definition because to eliminate the invalid part would define retail dealers to be something entirely different from the manifest legislative intent. In Safeway, it was said that to delete the “and who sells” clause would clearly result in a definition of retail dealers which the legislature had carefully avoided. Safeway is distinguishable upon its facts. Subsection D of the 1961 Act is not so interrelated nor is it and the remaining portions so dependent upon each other that the remainder cannot stand if subsection D be invalid; it may be separated from the other portions without impairing the force and effect of the remainder.
It is often helpful and important in construing legislative intent to look at the history and historical background of the legislation, that is, to view prior statutes on the same or similar subject matter. Munroe v. Wall, 66 N.M. 15, 340 P.2d 1069; State v. Prince, 52 N.M. 15, 189 P.2d 993; James v. County Commissioners, 24 N.M. 509, 174 P. 1001; State ex rel. Lorenzino v. County Commissioners, 20 N.M. 67, 145 P. 1083, L.R.A. 1915C, 898; Sutherland, Statutory Construction (3rd Ed.) Vol. 2, § 5002.
Chapter 78, Laws 1959, exempted from the sales tax:
“A. sales of tangible personal property, * * * made to the government of the United States, its departments or agencies;
“B. sales of tangible personal property or services made to the state of New Mexico or any of its political subdivisions.” (Emphasis supplied.)
Because of the exemption of the tax on services to the state, district courts in cases not appealed have held the 1959 statute discriminatory and invalid. The 1957 amendment was likewise held unconstitutional by district courts. It appears clear
An analogous situation was present in Huntington v. Worthen, 120 U.S. 97, 7 S.Ct. 469, 30 L.Ed. 588, where a portion of the statute which exempted certain items of railroad property from assessment and valuation were exempted from taxation was held invalid. It was contended there, as here, that the invalid portion was not separable from the remainder, and that the whole must be declared invalid. The Su-preme Court of the United States said:
“The unconstitutional part of the statute was separable from the re-mainder. The statute declared that, in making its statement of the value of its property, the railroad company should omit certain items; that clause being held invalid, the rest remained unaffected, and could be fully carried out. An exemption, which was invalid, was alone taken from it. It is only when different clauses of an act are so dependent upon each other that it is evident the legislature would not have enacted one of them without the other—as when the two things provided are necessary parts of one system—that the whole act will fall with the invalidity of one clause. When there is no such connection and dependency, the act will stand, though different parts of it are rejected.”
See, also, Stillman v. Lynch, 56 Utah 540, 192 P. 272, 12 A.L.R. 552; Northwestern Mutual Life Insurance Co. v. Lewis, 28 Mont. 484, 72 P. 982.
In Fairley v. City of Duluth, 150 Minn. 374, 185 N.W. 390, 32 A.L.R. 1258, a wheelage tax was imposed upon motor vehicles and section 3 provided certain ex-emptions. The trial court, there, as here, held the exemption invalid and the re-mainder valid. No appeal was taken from that portion of the judgment declaring the exemption invalid. It was contended that the invalid portion was not separable, but the court said:
“The exemption is not so important nor is it so connected in subject or
purpose with the other portions of the statute that the Legislature would not have passed the statute if subdivision 3 must be omitted. If subdivision 3 falls, and we are not concerned with its future now, chapter 454 is still a working and constitutional law.”
When we consider the prior amendments to
Finally, appellants contend that
The act does leave services performed by contractors as taxable. We assume it is the tax upon these services that appellants refer to as a tax on “sales” to the United States. Appellants rely upon Panhandle Oil Company v. Mississippi, 277 U.S. 218, 48 S.Ct. 451, 72 L.Ed. 857, and Kern Limerick, Inc. v. Scurlock, 347 U.S. 110, 74 S.Ct. 403, 408, 98 L.Ed. 546, in support of their position. There, it is true the court determined that a state tax upon gasoline levied against a distributor could
James v. Dravo Contracting Company, 302 U.S. 134, 58 S.Ct. 208, 82 L.Ed. 155, is based upon facts almost identical to those in the instant case and distinguished and limited Panhandle Oil in its application. There, West Virginia levied a privilege tax on account of “business and other activities” and by one of its provisions im-posed a tax upon persons engaged in contracting. The tax was two per cent of the gross income of the business. The question was whether the tax was invalid as laying a burden upon the operations of the federal government. The court there extensively reviewed the many decisions of that court upon the question, in-cluding the Panhandle Oil Company decision. It was pointed out that the imposition of such a tax upon a contractor doing business with the United States would ordinarily be reflected in the price ultimately paid for such services by the United States. That, of course, is appellants’ position here. In respect thereto the court in James v. Dravo Contracting Company, supra, said:
“But if it be assumed that the gross receipts tax may increase the cost to the government, that fact would not invalidate the tax. With respect to that effect, a tax on the contractor‘s gross receipts would not differ from a tax on the contractor‘s property and equipment necessarily used in the performance of the contract. Concededly, such a tax may validly be laid. Property taxes are naturally, as in this case, reckoned as a part of the expense of doing the work. Taxes may validly be laid not only on the contractor‘s machinery but on the fuel used to operate it. * * *”
The opinion concluded:
“We hold that the West Virginia tax so far as it is laid upon the gross receipts of respondent derived from its activities within the borders of the state does not interfere in any substantial way with the performance of federal functions, and is a valid exaction. * * *”
In Alabama v. King & Boozer, 314 U.S. 1, 62 S.Ct. 43, 86 L.Ed. 3, Alabama im-posed a sales tax on gross retail sales of tangible personal property. The Supreme Court of that state construed the statute as requiring the seller “to add to the sales
“The added circumstance that they [contractors] were bound by their contract to furnish the purchased material to the Government and entitled to be reimbursed by it for the cost, including, the tax, no more results in an infringe-ment of the Government immunity than did the tax laid upon the contractor‘s gross receipts from the Government in James v. Dravo Contracting Co., [302 U.S. 134, 58 S.Ct. 208, 82 L.Ed. 155, 114 A.L.R. 318,] supra.”
See, also, Metcalf & Eddy v. Mitchell, 269 U.S. 514 at 523, 524, 46 S.Ct. 172, 70 L.Ed. 384; Trinityfarm Constr. Co. v. Grosjean, 291 U.S. 466 at 472, 54 S.Ct. 469, 78 L.Ed. 918; Helvering v. Gerhardt, 304 U.S. 405 at 416, 58 S.Ct. 969, 82 L.Ed. 1427; Graves v. New York, 306 U.S. 466 at 483, 59 S.Ct. 595, 83 L.Ed. 927, 120 A.L.R. 1466; E. I. DuPont De Nemours & Co. v. State, 44 Wash.2d 339, 267 P.2d 667.
James v. Dravo Contracting Co., supra, distinguished Panhandle Oil Co. upon the ground that there the sale was made directly to the United States and that decision must be limited to facts in which the sale is so directly made. The Panhandle Oil Company decision was referred to by the court in Alabama v. King & Boozer, supra, in the following language:
“So far as a different view has prevailed, see Panhandle Oil Co. v. Mississippi, and Graves v. Texas Co., supra [298 U.S. 393, 56 S.Ct. 818, 80 L.Ed. 1236], we think it no longer tenable.”
We find no merit to appellants’ contention that the statute in question has the effect of levying an unconstitutional tax upon the United States, its agencies or departments.
Bradbury & Stamm Construction Co., Inc. paid taxes under protest and brought suit for refund prior to March 31, 1961. Judgment was entered after that date ordering a refund of such taxes with interest thereon at the rate of six per cent per annum from the respective dates of pay-ment under protest to the date of the judgment. The state cross-appealed from the allowance of interest, contending interest should be limited to two per cent.
“* * * but after payment of any such tax, penalty or interest under pro-test, * * * the taxpayer may bring action against the bureau of revenue * * * for the recovery of any tax, interest or penalty so paid under pro-test. * * *
“* * * In any such judgment, interest shall be allowed at the rate of six per-cent per year upon the amount found to have been illegally collected. Such judgment and interest shall be paid out of the suspense fund hereinafter provided.”
The interest rate was amended by chapter 195, § 2, Laws 1961,
Cross-appellee argues that the statute in force when the protested payments were made and which allowed interest “upon the amount found to be illegally collected” creates an implied contract between the state and the protesting taxpayer, and relies upon People ex rel. Atlantic, Gulf & Pacific Co. v. Miller, 173 Misc. 397, 17 N.Y.S.2d 202, a New York trial court opinion, in support of this contention. How-ever, the New York Court of Appeals in the later case of People ex rel. Emigrant Industrial Sav. Bank v. Sexton, 284 N.Y. 57, 29 N.E.2d 469, reached a different result in a case involving a legislative change in interest on protested tax payments, and said:
“We are here dealing with a case where there has been no express con-tract for the payment of interest. Petitioner‘s right to a refund with interest is statutory only. Interest is given
as damages for delay in payment of the principal obligation.”
Interest generally is of two kinds—it “is compensation allowed by law or fixed by the parties for the detention of money, or allowed by law as additional damages for loss of use of the money due as damages, during the lapse of time since the accrual of the claim.” McCormick on Dam-ages, § 50, p. 205.
The cases cited by cross-appellee in support of its contention that in-terest is always allowable on a claim, the amount of which is ascertainable, are all distinguishable. They all involve claims between individuals. It is the general rule that in the absence of statute, interest is not chargeable against the government be-cause of a delay or default. Engebretson v. City of San Diego, 185 Cal. 475, 479, 197 P. 651; Reclamation District No. 1500 v. Reclamation Board, 197 Cal. 482, 503, 241 P. 552. See United States v. Sherman, 98 U.S. 565, 568, 25 L.Ed. 235. And there is no implied contract of any kind that the state will pay interest on its indebtedness. The state is liable for interest only when made so by statute. Gregory v. State, 32 Cal.2d 700, 197 P.2d 728, 4 A.L.R.2d 924. The requirement that the state pay interest on protested taxes judicially determined to have been illegally collected is therefore only a statutory liability and is in the na-ture of a penalty.
The question is then presented whether such statutory requirement gives to the protesting taxpayer a right or remedy within the meaning of Article IV, Sec. 34 of the Constitution, which reads:
“No act of the legislature shall affect the right or remedy of either par-ty, or change the rules of evidence or procedure, in any pending case.”
We think such a statutory requirement to pay interest requires only the payment of interest prescribed by law during the de-lay in payment by the state. There is no contract, express or implied, to pay in-terest. The requirement that the state pay interest creates no right in the taxpayer, but only a privilege subject to being changed. John E. Ballenger Const. Co. v. State Board, 234 Ala. 377, 175 So. 387; Turner et al. v. Lumbermen‘s Mut. Ins. Co., 235 Ala. 632, 180 So. 300.
In State ex rel. Sparling v. Hitsman, 99 Mont. 521, 44 P.2d 747, 748, 750, the stat-ute imposed penalties and interest on de-linquent taxes. After such delinquency, legislation was enacted providing that a delinquent taxpayer whose property had been sold for delinquent taxes “shall be permitted to redeem the same by paying the original tax due thereon, and without the payment of any penalty or interest thereon.” Laws 1935, c. 88, § 1. Consti-tutionality of the act was questioned as violative of a provision that:
“No obligation or liability of any person * * * held or owned by the state * * * shall ever be remitted, released * * * or in any way diminished by the legislative as-sembly; nor shall such liability or ob-ligation be extinguished, except by the payment thereof into the proper treas-ury.” Const. art. 5, § 39.
That court was called upon to decide whether statutory interest and penalties imposed on a delinquent taxpayer consti-tuted an obligation or liability due the state which could not be released without pay-ment thereof. Interest on delinquent taxes was held to be in effect a penalty. See, also, Livesay v. De Armond, 131 Or. 563, 569, 284 P. 166, 168, 68 A.L.R. 422; State ex rel. First Thought Gold Mines v. Superior Court for Stevens County, 93 Wash. 433, 161 P. 77; Biles v. Robey, 43 Ariz. 276, 30 P.2d 841; State ex rel. Crutcher v. Koeln, 332 Mo. 1229, 61 S.W.2d 750; Henry v. McKay, 164 Wash. 526, 3 P.2d 145, 77 A.L.R. 1025; 3 Cooley on Taxation, § 1274.
The Montana decision went on to say:
“We, therefore, hold that the penal-ties, which include interest, are no part of the tax, and therefore are not a part of the obligation; and that the remission, reduction, or postponement of such penalties does not impinge upon the provisions of section 39 of article 5 of the Montana Constitution.”
Other courts holding statutory interest to be a penalty and not an obligation in-clude, Farr v. Nordman, 346 Mich. 266, 78 N.W.2d 186; State ex rel. Hardy v. The State Board of Equalization, 133 Mont. 43, 319 P.2d 1061; Jones v. Williams, 121 Tex. 94, 45 S.W.2d 130, 79 A.L.R. 983; Grieb v. National Bank of Kentucky‘s Receiver, 252 Ky. 753, 68 S.W.2d 21.
Certainly if a statutory impo-sition of interest and penalties upon a de-linquent taxpayer creates no obligation from the taxpayer to the state within the meaning of the Constitution prohibiting remission of any obligation or liability held or owned by the state, a statutory require-ment that the state pay interest on refunds of taxes judicially determined to have been illegally collected, cannot be said to create an obligation of the state to the taxpayer which gives rise to a vested right in the taxpayer within the meaning of the con-stitutional provision. It is a statutory re-quirement only which may be changed without violating the provisions of Article IV, section 34 of the New Mexico Con-stitution. O‘Brien v. Young, 95 N.Y. 428, 432. Furthermore, we do not believe this provision of the Constitution is applica-ble to the instant case in view of our de-cisions. See Hildebrand‘s Estate, 57 N.M. 778, 264 P.2d 674 and cases cited therein.
Finally, cross-appellee concedes that the Legislature may change the interest rate if
It has long been the rule in this jurisdiction that statutes are presumed to operate prospectively only and will not be given a retroactive effect unless such in-tention on the part of the Legislature is clearly apparent. Gallegos v. A. T. & S. F. Ry. Co., 28 N.M. 472, 214 P. 579; Wilson v. New Mexico Lumber & Timber Co., 42 N.M. 438, 81 P.2d 61; Board of Education of City of Las Vegas v. Boarman, 52 N.M. 382, 199 P.2d 998; Davis v. Meadors-Cherry Co., 65 N.M. 21, 331 P.2d 523.
The general rule applicable to statutory interest on tax refunds imposed upon the government where there has been a change of rate was applied in Gregory v. State, supra, and People v. Sexton, supra, and is stated thus in McCormick on Damages, § 52, p. 211:
“If the statutory rate is changed after the cause of action accrues, the interest should be allowed at the old rate before, and at the new rate after, the altering enactment takes effect.”
Following the above rule and ap-plying the interest provided by § 2, chapter 195, Laws of 1961, only after its effective date would not be giving the 1961 statute a retroactive effect, Gregory v. State, supra. We find nothing in the language of the act indicating a legislative intent that it have retroactive effect. Construing the 1961 statute as prospective only, as we do, cross-appellee, Bradbury & Stamm Con-struction Co., Inc. is entitled to receive interest on the refunds found to be due it by the judgment from the respective dates of such protested payments to March 31, 1961 at the rate of six per cent per annum and thereafter at the rate of two per cent per annum.
The judgments appealed from are af-firmed except that the judgment directing a refund to cross-appellee, Bradbury & Stamm Construction Co., Inc., is remanded with instructions to vacate the judgment and to re-enter it allowing interest in ac-cordance with the views expressed herein.
IT IS SO ORDERED.
COMPTON, C. J., and CHAVEZ, J., concur.
CARMODY and MOISE, JJ., dissenting in part.
MOISE, Justice (dissenting in part).
I concur with the opinion of the majori-ty except insofar as it holds that cross-appellee, Bradbury & Stamm Construc-
The disposition of the interest problem disregards totally the provisions of Art. IV, Sec. 34, of our Constitution, and fol-lows decisions from jurisdictions which are in no sense restricted by a constitution-al provision such as ours. Absent such a provision, I would agree that the result reached is supported by respectable au-thority. However, I can not reconcile the conclusion of the majority with what seems to me to be the plain language of Art. IV, Sec. 34. It reads as follows:
“No act of the legislature shall affect the right or remedy of either party, or change the rules of evidence or proce-dure, in any pending case.”
That the case was pending when Chap. 195, N.M.S.L.1961, became effective can not be questioned. The issue, then, is, was the “right or remedy” of Bradbury & Stamm “affected” when the interest rate was reduced from 6% to 2%? The ma-jority concludes that it was not because ordinarily a litigant is not entitled to in-terest against the government by virtue of its delay or default and a statute providing for interest creates no contract to pay interest, nor does it create any vested right in the taxpayer.
I agree that if we had no statute pro-viding for the payment of interest, none would be due. I also agree that there is no contract to pay interest. However, to say that no vested right to interest was created in the taxpayer under the facts here being discussed is to beg the question.
It seems to me that when Bradbury & Stamm filed suit to recover the taxes paid under protest while the law provided for 6% interest, to say that no vested right resulted, is to totally disregard the con-stitutional proscription against changing the “right” of a litigant in a pending case. Possibly the right was not a vest-ed one in the sense that the term is or-dinarily used. However, that Bradbury & Stamm were entitled to 6% interest when they filed their suit is clear. The nature of the entitlement can not be al-tered by saying it was not a “vested right.” The constitutional provision quoted above prohibits any change of a right by legis-lative act after suit had been commenced. The “rights” of the parties became fixed with the filing of the suit and it is of no consequences that so long as no suit was filed the State could grant, alter or take away the right to collect interest. Once the State became a party to a suit the con-stitutional provision applies with equal force to it as it does to any other party.
I see nothing in In re Hildebrand‘s Es-tate, 57 N.M. 778, 264 P.2d 674, and the
Oklahoma has a provision in its consti-tution which provides: “* * * After suit has been commenced on any cause of action, the Legislature shall have no power to take away such cause of action, or de-stroy any existing defense to such suit.”
It was pointed out in the Oklahoma deci-sion that the cases relied on as authority for a contrary rule are either cases where no suit had been instituted before the law was changed, or from states having no provision in their constitutions such as their
The case of State ex rel. Sparling v. Hitsman, 99 Mont. 521, 44 P.2d 747, is, to my mind, no support whatsoever for the position of the majority. I see no similarity between the situation here present and a holding that penalty and interest provided to be paid by taxpayers on delinquent taxes are in the nature of a penalty and can be forgiven by the state as not being an “obli-gation or liability” due the state, and which the constitution provided could not be re-mitted or extinguished. The obligation here is from the state to the taxpayer—not the reverse, and we are not discussing whether there can be forgiveness of obliga-tions, but rather whether rights present when a suit was filed can be changed by the legislature while the case is pending.
I would also make mention of the fact that I do not think any discussion of wheth-er legislation should be given retroactive or prospective application is called for. The only problem to be resolved so far as this case is concerned is whether or not the 2% interest rate provided for in Chap. 195, N.M.S.L.1961, can be applied to a recovery by Bradbury & Stamm in a suit which had been filed before the act became effective. I think the answer must be in the negative. Since the majority has de-cided otherwise on this aspect of the case, I dissent. I would affirm the case without remand.
CARMODY, J., concurs.