187 P. 1056 | Cal. | 1920
Lead Opinion
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *317 This is a proceeding in prohibition begun in this court to prevent further proceedings in an action pending before Judge Wallace in the superior court of Tulare County wherein Tulare Irrigation District and many others, corporations and individuals, are plaintiffs and Lindsay-Strathmore Irrigation District is defendant.
The ground of this proceeding, stated generally, is that by reason of the ownership by Judge Wallace of a certain lot of land 85 feet by 123 feet in size situated in the city of Visalia, the action is one "in which he is interested" and consequently one in which, under the provisions of section *318
Said action was begun in said superior court on July 16, 1916, and it has proceeded to trial before Judge Wallace, who has signed and filed his decision in writing, stating his findings of fact and conclusions of law upon the issues in the case. It is alleged that he has been the owner of said lot for more than thirty years last past and still remains such owner; that it is situated over subterranean waters which add substantial value to the said lot, and that the judgment sought by the plaintiffs in the action will have the effect of protecting his interest as owner of said lot in the waters underlying the same. The defendant in the action is engaged in pumping water from land, which pumping operations plaintiffs seek to enjoin, and it is claimed that said pumping will deplete the subterranean waters under said lot in the same manner as it will deplete the subterranean waters under the plaintiffs' land and which the plaintiffs by said action are attempting to preserve undiminished. If this claim is well founded, a judgment enjoining such pumping operations would protect the rights in said subterranean waters pertaining to said lot as fully as it would protect the rights of plaintiffs in the action, and under our decisions its claim that the judge is "interested" within the meaning of section
The Kaweah River has its sources in the west slope of the Sierra Nevada Mountains in the eastern part of the county of Tulare. It flows down the mountain slopes and reaches the plains at a point known as McKay Point, where it divides into several channels extending westerly from McKay Point for many miles, forming a fan-shaped comparatively level area containing many thousands of acres, which for brevity we designate as the Kaweah delta. With respect to this Kaweah delta, the complaint contains the following allegation:
"That upon said tract of land extending from said McKay Point, as hereinbefore alleged the said upper Kaweah *319 River Channel has from time immemorial deposited and distributed, and does now, by means of said channels and subterranean flow, deposit and distribute its waters thereon, in consequence of which vegetation has sprung up, agricultural products have been produced in large quantities, and upon which tract are located the cities of Visalia and Tulare, and other towns, and many hundreds of farms upon which are growing fruit trees, timber, alfalfa, and other agricultural crops, and upon which there are many thousands of people, and large numbers of live stock; that all of said farms and lands have required and do now require the whole of the waters of said Kaweah River, both surface and subterranean flow, for the irrigation thereof, and for moistening and keeping the same supplied with moisture from the underground flow thereof, and for watering live stock thereon, and for domestic and other beneficial uses of the persons residing thereon; that even during very wet or flood seasons, which occur but seldom, all of said surface and underground flow is needed and required for said tract of land, for the purposes above alleged."
Also the following: "That at all times during the irrigation of lands in said tract or during times of growing crops or grasses thereon, or in the use thereof, the underground flow from said Kaweah River is necessary to furnish a foundation for the surface waters flowing in said channels and to keep up the supply thereof, and to hold up the underground water tablebeneath the surface of said lands, in order to make the same productive; that any lowering of said water table orunderground flow during such time will greatly diminish the productive qualities of said land and also diminish the amount of surface water carried, during said time, in said channels." (Italics ours.)
The land lying on the northerly and southerly sides of said Kaweah delta tract is slightly higher and is composed of more impervious material than that in said delta, so that the surface and underground flow of said Kaweah River is confined to said Kaweah delta tract. The waters of said river penetrate into and completely fill the lands of said Kaweah delta tract down to bedrock the whole width of said tract. In some places and at some times these waters appear as surface streams, but whether high enough to form such streams or not, they move down always as an underground *320 supply slowly southwesterly toward the westerly portion of said tract.
The several plaintiffs respectively own various tracts of land situated in said delta and divers ditches and water rights pertaining to their lands, and rights to take water from the said streams, and they use the waters of the branches of said Kaweah River as aforesaid to irrigate lands within said delta and for domestic use thereon. Some of these water rights are rights by appropriation only and others are rights pertaining to the land as riparian to one or the other of said streams. Certain of said plaintiffs owning land riparian to some one of the said streams have for many years past maintained upon their respective tracts of land wells and pumping plants by means of which each of them has at all times pumped and used water from said underground supply aforesaid for irrigation, domestic, and other purposes. The lands of said plaintiffs so pumping water require the underflow of said Kaweah River underneath said land for irrigation and domestic use thereof, and the whole thereof is necessary to pass by and through said lands for said purposes. The whole of the said underground flow is necessary to support and to supply the surface streams from which the plaintiffs divert water for irrigation and other uses. All of the lands of the plaintiffs are situated within said Kaweah delta and below the point therein wherein said defendant's pumping plant now to be mentioned is situated.
The Lindsay-Strathmore Irrigation District is a public corporation organized under the act of 1897 and amendments thereto. (Stats. 1897, p. 254.) The area of the land embraced in said district is about fourteen thousand acres. It is situated about twelve miles southerly of McKay Point and the lands within its limits are higher in elevation than those of the Kaweah delta. It was organized to obtain water and furnish the same to the lands within its limits for the irrigation thereof. Said Lindsay-Strathmore Irrigation District has not a sufficient water supply to irrigate the lands thereof. In order to obtain an additional supply it has purchased some eight or nine hundred acres of land lying along said Kaweah River and within said Kaweah delta and overlying the said underground body of water supplied by said Kaweah River, which constitutes a common *321 underground supply for all the land included in said Kaweah delta, and has bored wells in said tract of land to a depth of about one hundred feet into said underground body of water and it is now pumping and threatens to continue pumping from said wells water taken from said underground supply and transport the same to the lands within the said Lindsay-Strathmore Irrigation District and there distribute the same for the irrigation thereof. It is alleged that if said defendant is permitted to continue said pumping operations, "the water so taken and diverted by said defendant will substantially diminish the quantity of water in said underground body of water available to the lands of said plaintiffs as riparian owners, pumpers and the stockholders of said ditch company, plaintiffs herein, and the lands of each of said plaintiffs and of the stockholders in said company will thereby be rendered less productive and will be diminished in value, and the early and late supply of water to which each of said plaintiffs is entitled as hereinbefore alleged will be greatly diminished."
It appears from the foregoing, in connection with other allegations of the complaint, that all the waters used by the plaintiffs are derived wholly from the surface streams of the Kaweah River and its branches and from the underground waters of said Kaweah delta tract, and that the lands within said Lindsay-Strathmore Irrigation District to which it proposes to conduct the waters obtained from its pumping plant are "entirely outside of said watershed [of the Kaweah River] and outside of, and not a part of, any land or lands included in said" Kaweah delta tract.
The complaint concludes with the following allegations: "That all of the parties owning lands or diverting water in said tract extending westerly and southwesterly from said McKay Point are united in interest with said plaintiff, in the use of said underground water, but they are so numerous that it is impracticable to bring them all before this court, and therefore said plaintiffs bring this suit in behalf of themselves and also for the benefit of all of said parties."
The relief prayed for is a judgment declaring that the defendant has no right as against the plaintiffs or any of them to take or divert any of the underground waters underlying the said tract or land purchased by the defendant away from said lands or to the lands within the said *322 defendant irrigation district, and that said defendant be permanently enjoined from so doing.
It clearly appears from this statement of facts averred in the complaint that the lot of Judge Wallace, being in the city of Visalia, is within the limits of said tract known as the Kaweah delta. It is alleged that the waters of Kaweah River penetrate into and completely fill the lands of said Kaweah delta tract throughout its width down to bedrock, that they move down always as an underground supply southwesterly toward the lower points thereof, and that this underground flow is necessary to hold up the water-table in the soil, in order to make the same productive, and is needed for the irrigation of the lands therein and for domestic and other uses of the persons residing thereon. These allegations apply to the entire Kaweah delta tract. It necessarily follows that the flow of said underground water extends to and under said lot of Judge Wallace and is available for use thereon. If such flow is beneficial to all lands within the delta, as is alleged, it must be beneficial to said lot in the same way, although the amount of the benefit may be very small, as compared to that which may inure to the larger bodies of land specifically described in the complaint as belonging to the respective plaintiffs who are land owners.
It does not appear that Judge Wallace directly uses on said lot any part of said underground flow; indeed, it is conceded that he does not. He obtains water on his lot for domestic use and for watering plants and trees from the Visalia City Water Company. This company obtains its water from wells situated within said city, from eighty-five to one hundred feet deep, derived from the same supply as that in which the plaintiffs claim to be interested and which they seek to protect. As a resident of the city he has a right to receive water from that company upon payment of established water rates. It may be that this conditional and secondary right to the water is not sufficient to constitute an interest in the subject of the action, but we need not determine the question. The water underlies his lot and is, while there, a component part of his land. Following natural laws, as it must, when one particle of the water flows out from under that lot, another particle immediately replaces it. This movement insures a permanent supply of *323 water in his soil of which he may avail himself for the benefit of said lot and for any use he sees fit to devote it to thereon. The complaint in the main action proceeds on the theory that each owner of land within the Kaweah delta, which includes Judge Wallace's land, possesses this right as a part of his land, and that consequently each of them has an interest in the continuance of said underflow.
Respondents insist that the proposition that Judge Wallace is interested in the action because he owns said lot is founded on a misconstruction of the complaint and a misapprehension of the object of the action. They say that the only underground water in which the plaintiffs are interested is that from which some of them pump water on their own lands and that which underlies the Kaweah River and its branches at and in the vicinity of the places of diversion of the respective ditches from which the other plaintiffs are supplied with water; that in order to state a good cause of action for the relief asked by the plaintiffs it was only necessary to state that the underflow would be substantially diminished at those places by the threatened pumping operations of the defendant, that its effect elsewhere is immaterial, and that all the averments in the complaint as to such effect are surplusage; that, therefore, the allegations of the complaint to the effect that the waters of the Kaweah River penetrate and fill the soil of the entire Kaweah delta tract down to bedrock, including lands not belonging to any of the plaintiffs, that said underground water is always moving westerly and moistens and makes productive the soil of such lands of other parties, and that all such lands require the continuance of said underflow for that purpose and for domestic use, are all unnecessary to the cause of action sued on and must be disregarded in construing the complaint. If this be done, so the argument runs, there is nothing properly alleged in the complaint from which the conclusion would follow that Judge Wallace, by reason of his ownership of said lot, can be in any manner interested.
[1] There are at least two reasons which completely dispose of this argument. First. These averments now claimed to be superfluous show that there are many other land owners who, with respect to this underflow, are in the same situation as the plaintiffs and who will, in like manner, be injured by the pumping operations of the defendant. *324
Other allegations show that these persons are very numerous, amounting to "many thousands of people," and the last paragraph which we have above quoted states, in apt language, that these persons are united in interest with the plaintiff but are too numerous to make it practicable to bring them before the court and that, therefore, this suit is brought by the plaintiffs for the benefit of all of said parties. These are proper allegations to show that the suit is begun for the benefit of all who are interested therein, and for that purpose the above allegations, which are now claimed to be surplusage, are necessary to show the interest of the other persons. The cause of action is not for plaintiffs, alone, but for all other persons within the delta who have a like interest with the plaintiffs. (Code Civ. Proc., sec. 382.) [2] Second. Even if these allegations had been omitted, it would be competent for the petitioner herein to show the disqualification of the judge by allegations of the facts disclosed in the complaint, and said to be surplusage, coupled with the statement of his ownership in the aforesaid lot, and, upon that showing, to claim the disqualification. The disqualification of the judge, by reason of his interest, need not be shown upon the face of the complaint. It seldom does so appear. He will be held to be disqualified by this cause if the facts stated in the complaint, taken in connection with the extrinsic facts shown in support of the application for prohibition or for change of judge, make his interest appear. For example, in NorthBloomfield etc. Co. v. Keyser,
[3] Judge Wallace has not hitherto used the underflow available in his lot, and it is not shown that he has any intention to do so. The argument that this removes the disqualification is contrary to the theory of the complaint, as above set forth, and contrary to the theory upon which the plaintiffs assume therein to be representing all the owners of land within the Kaweah delta. The complaint, in effect, alleges that they each have the right, at any time, to use the underflow beneath their respective lots, although they have *326 not previously done so and may not presently intend to do so. It does not help the argument if we should admit that this theory is errenous in law, for to the judge is committed the duty of determining the law, as well as the facts, and he may determine it according to his interest as well as contrary to it. [4] The disqualification extends to an interest in a question of law as well as to an interest in a question of fact if it affects or determines the interest of the judge in the property involved. [5] Furthermore, all the persons thus represented are regarded as quasi parties and "may intervene and make themselves actual parties when necessary for the protection of their interests." (15 Ency. of Pl. Pr. 634, 642.) And they are bound by the decree. (Ibid. 635.) The complaint, in effect, made Judge Wallace a potential party to the action.
[6] The respondents claim that, inasmuch as the lot of Judge Wallace can suffer but a very slight injury from the diversion in question, he would not be allowed to maintain an action for injunction to restrain such diversion or to intervene in such action, and, therefore, that he is not a party interested in this action. In support of this proposition they citeNewport v. Temescal W. Co.,
One of the principal points urged by the respondent is that the possible injury to the lot of Judge Wallace from the effect of the threatened diversion in lowering the underflow in said lot is so entirely unsubstantial and inappreciable that it comes within the operation of the maxim stated in section
From the admissions and facts shown at the hearing it appears that the pumping plant of the defendants is in the Kaweah delta on the Kaweah River and is situated about twelve miles easterly of the said lot; that the said delta tract slopes gently from the site of said plant to and beyond the city of Visalia. Affidavits were filed on behalf of the respondents to the effect that while the pumping proposed to be done by the defendant will, in time, lower the plane of the water-table under the lands of the plaintiffs and those who are receiving the water distributed by the corporation plaintiffs and will greatly reduce the crops that may be grown on said lands, it would not "in any way affect the value or productive qualities of said lot of Judge Wallace, because it is not used for any such purpose as are the lands of said plaintiffs . . . or for the production of crops of any kind, or anything which requires the use of said, or any, underground water," and that, consequently, even if the waters underlying said lot should be diminished *328 or lowered by such pumping, the productive qualities and value of the lot would not be affected.
It is conceded by the petitioner that its proposed pumping operations threaten no immediate injury to said lot and that the lowering of the water plane in said lot, so far as may now be seen, will never be very great, and it is also freely admitted that the well-known high character of Judge Wallace for probity and fairness would preclude all who know him, or who know his well-earned character, from entertaining the suspicion that he would be influenced by such an interest, or that he would consent to sit in a case as to the result of which he knowingly had an interest or in which he was conscious of any bias whatever. But this, they assert, does not determine the case, inasmuch as even with the showing made by the respondents, the lot of Judge Wallace will be, to some slight degree, directly affected by the pumping threatened by the defendants and its potential qualities will be either protected or endangered to some extent by the result of the judgment, which, they contend, is sufficient to disqualify him.
It cannot be said that, as matter of law, the possible injury that may accrue to said lot from the pumping operations of the defendant will be inappreciable. The appearance of thousands of windmills throughout the state, both in the country and in the smaller cities, with the accompanying water-tank, demonstrate the fact that wherever there is an underground supply of water it is customary to obtain water therefrom by means of wells and pumps. It is a well-known fact that a very large part of the extensive region cultivated to citrus fruits in the part of the state in which this controversy arose has been irrigated with water obtained in this manner from the ground beneath the orchards. The owner of this lot could, readily become independent of the Visalia City Water Company and supply himself with the same quality of water by putting down a well to the underflow and installing a pump to be moved by wind, electricity, or gasoline. And if, as suggested by the respondents, the lot is so near to the business section of Visalia that it is likely to be soon devoted to business uses, so that water for grass and plants will become unnecessary, the underflow will still be a material element of its possible value. It is not uncommon for the owner of a business *329 block over such underflow to erect a tank on the roof, sink a well, install a pump and keep the tank filled with water by that means, as a protection against fire and for ordinary uses within the building. Such possibilities add materially to the value 'of such property, as well as to residence or farm property. The defendant, in its answer to the complaint, avers that it intends to take out of said water supply a constant flow of seventy-five cubic feet of water per second. They also allege that the total annual run-off from the entire watershed which collects and supplies the streams and underflow in question amounts to three hundred and forty thousand acre-feet, of which the plaintiffs and other users of water in said delta use for irrigation, and other purposes, two hundred and twenty-five thousand acre-feet, and that of the remaining one hundred and twenty-five thousand acre-feet the defendant proposes to take thirty thousand acre-feet. The depth of the water-bearing stratum in which the underflow lies is not made to appear. But these figures show that the defendant proposes to takeout and away from said delta region approximately one-tenth of the entire water supply coming into it from the only sources available — the rainfall and snows of the watershed. If proper allowance is made for run-off, wastage, and for evaporation and other losses, it will far exceed one-tenth. And it is not unreasonable to suppose that this estimate of the natural supply is not minimized by defendant to its own disadvantage and that it may be much more than one-tenth. That the extraction of this quantity of water from the underflow will lower its level materially throughout its extent must be obvious. Plaintiffs allege that it will have that effect. Such lowering would, of course, increase the expense of obtaining water on said lot by pumping and it is altogether probable that the increased cost would amount to an annual sum that would be very appreciable. At all events the court cannot say that it would not be so, and, unless this can be said with certainty, it cannot declare that the injury threatened is too slight to be measured or to be the subject of judicial cognizance, even if that would answer the objection.
[8] Furthermore, the well-established rule is that if the judge has an interest in the subject matter of the action, or has property which may be directly affected by the result of the judgment that may be rendered therein, the court will *330
not consider the extent of the interest nor inquire into the effect it would have upon his rulings. It is sufficient to disqualify him if it is a certain, definable, pecuniary, or proprietary interest or relation which will be directly affected by the judgment that may be rendered. (Adams v. Minor,
Finally, it is contended that the defendant in the action, by its conduct, has waived the objection on account of the disqualification of the judge and that it is now estopped to raise it in this manner, or otherwise than by a motion for a new trial or by appeal.
In support of this contention it has been shown that the judge has owned and resided on the said lot for the last thirty-four years; that the deed conveying said lot to him was duly recorded in the office of the county recorder in the year 1887; that the trial of the action was begun on October 25, 1917, and was not concluded until May 15, 1919; that the taking of testimony therein occupied 164 days, and that on July 9, 1919, said judge announced his decision in favor of the plaintiffs; that during the entire proceedings no objection or suggestion was made to the court by any of the parties that the judge was disqualified to act by reason of his interest; that two of the petitioner's attorneys have resided in Visalia for more than twenty-five years, during all of which time they knew that the said judge resided and had his home on the said lot; and that no objection to the qualification of said judge to sit and act in the trial of said action was made until after the announcement by said judge of his decision in favor of the plaintiffs as aforesaid. It is apparent, also, that the trial has been very expensive. If an estoppel can arise upon facts of this character to prevent a party from applying for a writ of prohibition, the facts in this case would, we think, be sufficient for that purpose.
[9] The provisions of section
Section 111 of the act of March 16, 1851 (Stats. 1851, p. 27), provided that a judge should not "act as such" in an action or proceeding in which he is interested. This provision has been continued in force from that time until the present. It has received interpretation in many cases. InPeople v. De la Guerra,
[11] It is also the uniform rule, under these statute, that where such disqualification exists, consent of the parties cannot impart validity to the proceedings and that a party to the action who desires to attack them is not estopped from doing so by the fact that he attended during the trial without raising the objection. (Adams v. Minor,
"But where no jurisdiction exists by law it cannot be conferred by consent — especially against the prohibitions of a law, which was not designed merely for the protection of the party to a suit, but for the general interests of justice. It is the design of the law to maintain the purity and impartiality of the courts, and to insure for their decisions the respect and confidence of the community. Their judgments become precedents which control the determination of subsequent cases; and it is important, in that respect, that their decisions should be free from all bias. After securing wisdom and impartiality in their judgments, it is of great importance that the courts should be free from reproach or the suspicion of unfairness. The party may be interested only that his particular suit should be justly determined; but the state, the community is concerned not only for that, but that the judiciary shall enjoy an elevated rank in the estimation of mankind.
"The party who desired it might be permitted to take the hazard of a biased decision, if he alone were to suffer for his folly — but the state cannot endure the scandal and reproach which would be visited upon its judiciary in consequence. Although the party consent, he will invariably murmur if he do not gain his cause; and the very man who induced the judge to act, when he should have forborne, will be the first to arraign his decision as biased and unjust. If we needed an illustration of this, the attitude which the counsel for the moving party in this case assumed toward the court, the strain of argument which he addressed to it, and the impression which it was calculated to make upon an audience, are enough to show, that whatever a party way consent to do, the state cannot afford to yield up its judiciary to such attack and criticism as will inevitably follow upon their decisions made in disregard of the prohibitions of the law under consideration."
The petitioner has called our attention to the question of the disqualification of Judge Wallace under subdivision 5, added to section
This subdivision was considered by this court inSacramento etc. Drainage Dist. v. Rector,
One of the main objects of this statute evidently was to prevent a judge, even if he is not interested, from sitting or acting as such in a cause which is of general interest to the community in which he lives and concerning which there is likely to be developed an active local public opinion and strong feeling which might greatly embarrass him, or affect him, consciously or unconsciously, in his decision, particularly in cases where the other party to the action was an outside agency operating in a manner that would directly affect local affairs and property interests. [12] Irrigation districts are not specifically mentioned, but they come within the meaning of the phrase "or any public agency." They are public agencies of the same character as those particularly named, and they are organized for the same general purposes to accomplish similar objects. There is no essential difference in these respects between an irrigation district and a reclamation district or a swamp-land or drainage district. The latter are organized to reclaim land by draining off the surplus water. Irrigation districts are *336 organized to reclaim land by supplying water thereto. In the desert land regious the word "reclamation" is in common use to indicate the bringing of water on the land for the irrigation thereof. If we apply the ejusdem generis rule of interpretation as is proper in such cases, we must hold that the above phrase was intended to include irrigation districts, although it may not include public corporations in general.
The facts disclosed in the present case show that it comes within the purpose of the act. The Kaweah delta embraces a very large area of land inhabited by many people. The general use of water from the underflow and from the streams fed or supported thereby makes the region very productive. Judge Wallace has lived there for thirty-four years and has seen a large part of the country about him gradually change from a comparative desert to a fruitful garden. The petitioner is an outside public agency organized for the benefit of another community. It proposes to take water from the same source as that which has for years supplied the growing needs of the delta region. The conditions naturally tend to engender feelings of antagonism and to arouse local public opinion. A sound public policy would so provide that the local judge may be relieved from the embarrassment of having to try such a case. We are of the opinion that Judge Wallace is disqualified by reason of the provisions of this subdivision, as well as under the provision of the first subdivision of the section.
The conclusion is that the judicial acts and proceedings of Judge Wallace in said action must be deemed invalid, and that the action must proceed again from the beginning before some judge who is not disqualified.
In view of the extreme length of the trial and the expense incurred therein, it may be unfortunate that the result cannot stand without impeachment, except by appeal, and for reasons going to the merits. But the courts cannot change the statute on the subject. We can only suggest to the legislature that it may be possible to frame a provision for avoiding such a miscarriage and which will not contravene a sound public policy on the subject.
Let a writ issue commanding the superior court of the county of Tulare and Honorable W.B. Wallace, as judge thereof, to refrain from proceeding further in said cause, *337 except that if a qualified judge is called to act as judge thereof the court may proceed with a new trial of said action before such judge.
Lennon, J., Wilbur, J., Angellotti, C. J., and Lawlor, J., concurred.
Concurrence Opinion
I concur, but only on the ground that Judge Wallace is disqualified by subdivision 5, section
The main opinion might possibly be thought to intimate that under our code section a judgment of a court rendered by a judge thereof disqualified because of interest or otherwise is void for want of jurisdiction. I am satisfied that this is not true. It is, however, not necessary to determine the point for the purposes of the present decision, and as I understand it no opinion is expressed upon it by the main opinion.
I also do not concur in the statement that under our statute a party may not estop himself from asserting the invalidity of proceedings theretofore taken before a disqualified judge. But in order that such estoppel exist, it should affirmatively appear either directly or by reasonable inference that the party attempting to assert the disqualification *338 knew previously both of the disqualification and of his right to insist upon it, and, nevertheless, made no objection, but permitted the proceedings to go on. This does not appear in the present case. But if it had, I think the petitioner would have been estopped. It would seem to me intolerable to permit a party to play fast and loose with the administration of justice by deliberately standing by without making an objection of which he is aware and thereby permitting the proceedings to go to a conclusion which he may acquiesce in, if favorable, and which he may avoid, if not.
Rehearing denied.
All the Justices concurred.