STATE ex rel. LUTHER CARSON v. GEORGE W. WOOD, Judge, etc., et al.
No. 12935
No. 12936
Supreme Court of Appeals of West Virginia
July 17, 1970
Submitted May 5, 1970. Dissenting Opinion July 17, 1970.
Dissenting Opinion July 17, 1970.
Leo Catsonis, Special Prosecuting Attorney, for respondents.
BROWNING, PRESIDENT:
These are original proceedings in prohibition instituted by the State of West Virginia at the relation of Luther Carson, hereinafter referred to as petitioner, against the Honorable George W. Wood, Judge of the Intermediate Court of Kanawha County, and Patrick Casey, Prosecuting Attorney of Kanawha County, hereinafter referred to as respondents. The purpose of these proceedings is to prohibit the respondents from prosecuting the petitioner under felony indictments No. 3010 and No. 3011, returned by a grand jury of the Intermediate Court of Kanawha County during the September, 1969, term.
Indictment No. 3010 charges petitioner, as an “executive and ministerial officer of the State of West Virginia,” with
Petitioner alleges that he went to work for the State Road Commission on or about June 16, 1965, and terminated his employment with the State Road Commission on or about April 8, 1969. He avers in his petition that he was not an officer of the State Road Commission but merely an employee. He further alleges that no State Road Commissioner, during his period of employment, “promulgated any rules or regulations establishing an office known as ‘Director of Office Services’ and fixing the powers and duties of such office“; that the West Virginia Code does not establish such an office; that he was not required to take an oath of office or file a fidelity bond; and that he did not receive a “certificate of appointment.” Petitioner maintains that his job was “supervised and directed” by the Business Manager of the State Road Commission and that “he had little or no discretion as to how he was to do this job.” Petitioner additionally alleges that “he was never and is not now the holder of an office known as ‘Director of Office Services’ as is alleged in the said indictment returned against him.” Thus, petitioner concludes that he is not a person who can be bribed under
Any executive, legislative, judicial or ministerial officer, or member of the legislature, who shall demand, receive or accept any gift, gratuity, money, testimonial or other valuable thing, or shall exact any promise to make such gift or to pay to him, money, testimonial or other valuable thing, or to do any act beneficial to such officer or member of the legislature, from any person, company or corporation,
under an agreement or understanding that his vote, opinion, judgment or decision shall be given or withheld in any particular manner upon a particular side of any question, cause or proceeding, which is, or may be by law brought before him in his official capacity, or that in such capacity he shall make any particular nomination or appointment, or for any vote or influence he may give or withhold as such officer or member of the legislature, or that such officer will fail to perform or improperly perform any of his official, public duties, shall be guilty of a felony and, upon conviction thereof, shall be confined in the penitentiary not less than one nor more than ten years; and in addition thereto such officer or member of the legislature shall forfeit the office then held by him and shall be forever disqualified from holding any office or position of honor, trust or profit in this State. (Emphasis added.)
It is further asserted that
In answer to the above, respondents deny that petitioner was not an officer of the State Road Commission and deny that he was merely an employee; aver that he was appointed to the position of Director of Office Services by former State Road Commissioner Burl A. Sawyers; and aver that petitioner among other duties “exercised discretionary purchasing authority up to $100.00 per day per vendor and administered the employment of approximately 70 employees of the Office Services Division.” In short, respondents maintain that petitioner was indeed an officer of the State and thus could be bribed under
On March 2, 1970, rules were granted returnable on May 5, 1970, and on that date the cases were submitted for decision upon oral argument and briefs.
Perhaps one who is not familiar with the history of the law relating to the bribery of officials and employees of units of government, and even those who are, may be inquisitive as to why the legislature in
The Constitution of this State gives this Court original jurisdiction in prohibition, a point not raised or controverted by the respondents. There can be no question, and petitioner does not deny, that the Honorable George W. Wood is the duly elected judge of the Intermediate Court of Kanawha
The legislature of this State, as it has the power under the Constitution to do, has defined the writ of prohibition as provided for in the Constitution and in 1882 made a material change with regard to that writ. Prior to that time, prohibition would lie only if an inferior court “had not jurisdiction” of the matter in controversy. In 1882, the legislature amended the statute to read, in pertinent part: “The writ of prohibition shall lie as a matter of right in all cases of usurpation and abuse of power, when the inferior court has not jurisdiction of the subject matter in controversy, or, having such jurisdiction, exceeds its legitimate powers.” Acts of the Legislature, 1882, ch. 153, § 1. This is now the entire language of
At this point it is safe to say that the able counsel for respondents would not contend that the respondent judge of the Intermediate Court would not be exceeding his legitimate power if he attempted to proceed to try the petitioner upon a void indictment. However, it is contended in brief and argument that it cannot be determined whether the petitioner is “an executive and ministerial officer of the State of West Virginia” until evidence is taken before the trial court creating
In what might be considered a landmark decision following the 1882 amendment to
The respondents contend that the pleadings in this proceeding show that the petitioner is, within the meaning of the statute, “an executive and ministerial officer of the State of West Virginia” or at least that the contrary is not shown, and, therefore, the burden being upon the petitioner to show a clear legal right to the writ, it should be denied. Prior to the adoption of the
Generally speaking, a public office is a position created by law with duties cast upon the incumbent which involve an exercise of some portion of sovereign power and in which the public is concerned, continuing in their nature, and not merely occasional or intermittent. Among the criteria for determining whether an employment is a public office or not are: that the powers are created and conferred by law, and not by contract; and the fixing of the duration or term of office. That an official oath is required by law is a sign of office, and where a statute prescribes specific duties for an office there is a strong presumption that an office is intended. * * *
One occupying a position created by the law is a public officer; but to be a public officer, his office must be created by law. (Emphasis added.)
For that proposition, the authority cites in the footnotes State v. Bond, 94 W. Va. 255, 118 S.E. 276 (1923), and therefore, let us now consider that case. This is the first syllabus point: “Generally speaking, a public office is a position created by law, with duties cast upon the incumbent which involve an exercise of some portion of sovereign power and in which the public is concerned, continuing in their nature, and not merely
One employed by the Secretary of State, and designated by him as his “chief clerk“, but whose position as such is not created by law, and who takes no oath, executed no bond, has no fixed tenure, and performs no duties except such as may be required by the Secretary of State, is not a public officer, or public agent within the meaning of
section 8, Article IV of the Constitution , but a mere employee.
This language is used with regard to the position held by Mrs. Francis P. Key who was then chief clerk of the Secretary of State:
Now it can not be said that because the petitioner, under the direction of the Secretary of State, affixes the Great Seal of the State to official documents, this is her act and that therefore she exercises a portion of the sovereign power of the state. She exercises no independent power or authority. What she does she does not in her own name and by virtue of her own authority, but in his name. Her duties are not prescribed by law; they are prescribed by the Secretary of State, and he may change them when he sees fit. She takes no oath; gives no bond; has no tenure fixed by law; hence we must hold that she is not a public officer.
In the Weil case, heretofore cited, four indictments were returned by the Intermediate Court of Kanawha County against a person named therein charging him with having bribed or attempted to bribe two members of the Public Service Commission. A writ of prohibition was sought in the Circuit Court of Kanawha County against the judge of the Intermediate Court upon the ground, among others, that the members of the Public Service Commission were not “executive or judicial officials” as provided by the statute then in effect. It will be recalled that the word “ministerial” was not added to the Act until 1923. The writ was awarded and the State appealed to this Court. The decision was reversed and the rule in prohibition was discharged. This language is contained in the opinion of that case:
Members of the public service commission are included in the descriptive terms of the above statute, “any executive or judicial officer.” Those are general terms, intended to include all public officers whose duties are either judicial or executive. The term “executive” is not there limited to the officers enumerated in
Sec. 1, Art. VII of the Constitution , as constituting the executive department of the state government, but it is designed to embrace all officers, whether elected or appointed, whose duties pertain to that branch of the government. Being public officers, whose jurisdiction extends over the whole state, it necessarily follows from the apportionment, by the Constitution, of all the powers of government among three departments, denominated therein as the legislative, the executive and the judicial departments, that the duties of all public officials must fall within some one of those three departments. A fourth department, having powers distinct from the three named, could constitutionally exist. That the public service commissioners are not included in the terms, “members of the legislature,” must be admitted; that they are included in one or the other of the terms “executive or judicial officers,” we think is clear, and it is sufficient, for the purposes, of this writ of error, to class them under the head of executive officers. If their duties are so varied that some of them may properly be classed as executive or ministerial, and others as judicial, they could, for purposes of the bribery statute, be classed under either of the two departments. In so far as they are empowered to investigate rates and charges of public service corporations, and to determine their reasonableness or unreasonableness, they would seem to be performing a quasi judicial function, while, in ascertaining what is a just rate for services to be rendered by such corporations, and prescribing such rate, as a rule to be obeyed in the future, their action would seem to partake somewhat of a legislative character; and in compelling obedience to its orders, by proper proceedings in court, as Sec. 5 of the act creating it requires it to do, its duties are ministerial, coming clearly within the functions of the executive department of government. (Emphasis partially added.)
Blue v. Smith, 69 W. Va. 761, 72 S.E. 1038 (1911), was an original proceeding in mandamus in this Court, the primary issue being whether the legislature had the power under the constitutional provision last quoted to create the office of State Tax
Section 8 of article VII prohibits the legislature from appointing, or electing any officers, (but not from creating offices,) and confers upon the governor the right to nominate, and by, and with, the advice and consent of the senate, to appoint, not only officers mentioned in the Constitution, the manner of whose election is not therein provided for, but also, such officers as “shall be created by law.” This is certainly as clear and express recognition of the right of the legislature to create, by law, other offices than those named in the Constitution, as it is a vesting of power in the governor, acting with the advice of the senate to fill such offices by appointment, after they are created. The legislature, of course, cannot create offices which will conflict with, or curtail the constitutional powers of, any of the offices provided for by the Constitution. But the office of State Tax Commissioner does not do so. That office was created as an aid to the executive department in the administration of the laws respecting the state‘s revenues. The governor has the power, together with the senate, to fill it, and the governor alone has power to declare it vacant. The State Tax Commissioner is a subordinate office in the executive department, the incumbent may be removed by the chief executive at his will. His powers and duties are purely ministerial, and do not in any manner conflict with those of any other office created by the Constitution. Our conclusion is that the legislature has the power to create the office of State Tax Commissioner, and that the office is lawfully constituted. (Emphasis partially added.)
No very satisfactory and comprehensive distinction between an “officer” and an “employee” appears in the decision of our supreme court or in the decisions of other courts. Each case must be determined largely on its own merits. However, from the various cases in this as well as in other jurisdictions, a number of criteria appear. No one of these criteria is, perhaps, sufficient alone to be determinative, and the same may be said of various combinations thereof.
In order that a position be an office and not a mere employment it seems necessary that the position be created by the Legislature. * * *
Other criteria to be considered are: whether the legislature in creating the position designated it an office, whether the qualifications for the appointee are prescribed, and whether the duties, tenure, salary, bond, and oath are prescribed or required, and whether the act constitutes the one occupying the position a representative of the sovereign.
* * *
Considering the fact that the act which creates the position of road supervisor does not require of the road supervisor as such any oath or bond, does not prescribe the duties of the position, the tenure or the salary, and does not delegate to the position the exercise of any of the sovereign powers of government by virtue of such position, but, under Section 14 of the act it would seem that such powers and duties as may be required are to be exercised under the direction of the Commissioner, who shall be responsible for such acts, the position of road supervisor . . . is not an office but is a mere employment. 1933 W. VA. ATTY. GEN. ANN. REP. 252.
Note that in the attorney general‘s opinion he referred to a position created by an act of the legislature. In the cases at bar, even that fact is not present.
We believe it significant that in a comparatively short time after the decision of this Court in the heretofore-cited Blue case holding that the office of tax commissioner was a “mere ministerial office” that the legislature for the first time in exactly half a century amended
It is clear that there did not exist by law any such office as “director of office services of the State Road Commission of West Virginia“; that the petitioner was therefore not a de jure officer of the State and furthermore could not possibly have been “an executive and ministerial officer” of the State of West Virginia as provided by
The only other contention made by respondents is that the petitioner was at least a de facto officer. In MICHIE‘S JURISPRUDENCE, Volume 15, page 115, under the title “De facto Officers” is this succinct statement, citing State v. Babb, 124 W. Va. 428, 20 S.E.2d 683 (1942): “To constitute an officer de facto the office must have a de jure existence. . . .” For a full and able discussion of the question of who may be a de facto officer, see Stowers v. Blackburn, 141 W. Va. 328, 90 S.E.2d 277 (1955).
Why the legislature did not add such language as “and every other employee of the State of West Virginia” to
Inasmuch as the petitioner is not an “executive and ministerial officer of the State of West Virginia,” as alleged in the
Writs awarded.
CALHOUN, JUDGE, dissenting:
Respectfully, I dissent from the Court‘s decision embodied in the majority opinion in these two combined cases.
I am not endeavoring to be dramatic when I state that the Court in these cases, with all their grave implications, should be mindful and heedful of the wise admonition contained in
For reasons stated hereafter in this dissenting opinion, I believe that the indictments in question are valid on their face; that the Intermediate Court of Kanawha County has jurisdiction to proceed under the indictments; that the question whether the petitioner is “an executive and ministerial officer” is a nonjurisdictional question; and that this Court lacks jurisdiction in these prohibition proceedings to determine nonjurisdictional questions which have not been passed upon by the trial court.
With limited exceptions, this Court has only appellate jurisdiction. Its primary function is to review the actions or judgments of trial courts of record. Even in the exercise of its appellate jurisdiction, this Court will not decide nonjurisdictional questions which have not been acted upon and decided by the trial court. Work v. Rogerson, 149 W. Va. 493, pt. 11 syl., 142 S.E.2d 188 (1965). The reason is, in my view, that this Court, in the exercise of its appellate functions, lacks jurisdiction to “review” nonjurisdictional questions which have not been acted upon and decided by the trial court. Appellate jurisdiction means exactly what the term implies.
This Court‘s original jurisdiction is conferred by
Jurisdiction cannot be conferred by an indictment which is null and void because of its failure to allege criminal offense, State ex rel. McCormick v. Hall, 150 W. Va. 385, pt. 2 syl., 146 S.E.2d 520 (1966); nor by an indictment which is void because it is based on an unconstitutional statute. State ex rel. Heck‘s, Inc. v. Gates, 149 W. Va. 421, 425-26, 141 S.E.2d 369, 374 (1965). Conversely, an indictment which is valid on its face confers jurisdiction upon the trial court in which the indictment is pending. Prohibition “does not lie to correct errors or to usurp the functions of a writ of error or certiorari, or of the remedy by appeal.” State ex rel. Cecil v. Knapp, 143 W. Va. 896, 912, 105 S.E.2d 569, 579 (1958).
In these cases, the Court does not hold that the statute upon which the indictments are based is unconstitutional. The indictments are valid on their face and charge offenses in accordance with the language of the statute. They charge that Luther Carson, at the time of the alleged offenses, “was
Though each indictment expressly alleges that Luther Carson “was then and there an executive and ministerial officer of the State of West Virginia” in full compliance with the language of the statute, the Court, nevertheless, holds that the distinguished judge of the trial court cannot proceed in relation to the two indictments. It must be conceded that the valid indictments conferred jurisdiction on the trial court. It cannot be said, with any degree of reason, that the trial court has exceeded its legitimate powers because this Court has prohibited the trial court from taking any action in relation to the valid indictments. I cannot comprehend how this Court can hold that the trial court has exceeded its legitimate powers when this Court prohibits the trial court from exercising any powers whatsoever pursuant to the indictments. We have stated so many times that jurisdiction in a court includes jurisdiction to err and to decide incorrectly as well as jurisdiction to rule and to decide correctly.
As I shall undertake to state hereafter in this dissenting opinion, the Court has based its decision in these cases upon an alleged failure of proof to sustain the allegations of valid indictments. The Court in this respect, in a wholly unwarranted manner, has invaded the domain of the trial court; usurped functions and jurisdiction which rest solely with that court; anticipated that the trial court may err if permitted to proceed; and has undertaken to decide in these prohibition proceedings questions which this Court properly may decide only in the exercise of its appellate jurisdiction after the trial court has acted upon and decided such questions, correctly or incorrectly, in the exercise of its clear jurisdiction.
In deciding these cases on jurisdictional grounds, the Court has erred in undertaking to decide jurisdictional questions upon alleged facts which are of an extraneous nature, contrary to the allegations of the indictments.
“Prohibition will not lie against an inferior court or a judge thereof to deprive it or him of the right to pass upon the extrinsic facts determinative of jurisdiction.” Downs v. Lazzelle, 102 W. Va. 663, pt. 1 syl., 136 S.E. 195 (1926).
“A court of general jurisdiction, having jurisdiction of the subject matter and (on the face of the record) jurisdiction of the person will not by writ of prohibition be deprived of its right to pass upon the extrinsic facts determining the jurisdiction of the person.” Cunard Steamship Company, Ltd. v. Hudson, 93 W. Va. 209, syl., 116 S.E. 511 (1923).
“If the question of a court‘s jurisdiction depends upon issues of fact, it has power and jurisdiction to decide them, even though the evidence relied upon to prove the jurisdictional facts is wholly uncontradicted and absolutely conclusive, and it cannot be deprived of its right to do so by prohibition or any other collateral proceeding.” State ex rel. Keeney v. Bland, 89 W. Va. 600, pt. 5 syl., 109 S.E. 716 (1921).
“In determining whether an inferior court has jurisdiction to entertain an indictment, it is only necessary to determine whether the transactions and circumstances therein alleged show that an offense, punishable under the law, has been committed. The technical sufficiency of the indictment will not be inquired into, as if upon a demurrer or motion to quash, to determine jurisdiction.” Weil v. Black, 76 W. Va. 685, pt. 2 syl., 86 S.E. 666 (1915).
For a general discussion of principles stated in the quotations appearing immediately above, see McConiha v. Guthrie, 21 W. Va. 134 (1882). My views in relation to the lack of jurisdiction of this Court by prohibition to interfere with a trial court in its efforts to proceed, correctly or incorrectly, in the exercise of its jurisdiction have been stated in dissenting opinions in State ex rel. Turner v. McClure, 153 W. Va. 855, 173 S.E.2d 167 (1970), and State ex rel. Valley Distributors, Inc. v. Oakley, 153 W. Va. 94, 168 S.E.2d 532 (1969).
The instant cases are predicated on the proposition that Luther Carson was not, in fact, an executive or ministerial officer of the state at the times alleged in the indictments. The indictments allege that, in the position he occupied in
Whether Luther Carson was or was not an executive or ministerial officer is a matter of defense in the trial court, just as would be a defense of alibi, of mistaken identity or of insanity. A determination of any of such defenses in a manner favorable to the accused would prevent his conviction of the offenses charged. It might be argued that an advance determination by this Court of any of such defenses in accordance with the contention of the accused would have the advantage of avoiding an abortive trial. Whether that is a consummation devoutly to be wished or not, the fact remains that the validity or the invalidity of any such a defense is dependent upon proof of facts dehors the indictment. Not only is this Court lacking in facilities for making a determination of such factual issues, it is also completely lacking in jurisdiction to do so, unless in the exercise of its appellate jurisdiction.
For reasons I have undertaken to state, I would not, in these prohibition proceedings, reach the factual decision the Court has made. In the absence of a proper development of that factual issue in the trial court, I will not undertake to state, in these prohibition proceedings, what the correct answer should be. I will proceed, nevertheless, in an effort to state the basis of my opinion that there are no invariable legal guidelines by which that factual determination can be easily and readily made by any court. In this connection, I note that if the Court is correct in stating in the fourth point of the syllabus that the important position occupied by the accused in state government was not an executive or ministerial office because it was not created “by the legislature“, a simple proposition has been belabored and the Court has wasted much effort and language in detailing the indicia of an “office.”
The portion of
We must assume that the legislature, in adopting the 1931 official Code, acted deliberately and with a purpose in adding any “ministerial officer” to the category of persons in state government who may be guilty of the criminal offense by demanding, receiving or accepting a bribe. Bearing in mind the disjunctive character in which the present statutory language is stated, it is difficult or impossible to conceive of any state officer who would not be embraced by the following language: “Any executive, legislative, judicial * * * officer, or member of the legislature.” Why did the legislature add the words, “or ministerial officer“? We are required to assume that the legislature intended to add something to the embracive category which otherwise covered any executive, legislative or judicial officer or member of the legislature. We are required to assume that the legislature acted deliberately and for a purpose in adding a new category of positions characterized as any “ministerial officer.” The words, “ministerial officer,” were obviously designed to embrace some categories of positions in state government in addition to any “executive, legislative, judicial * * * officer, or member of the legislature.”
We must bear in mind that we are not here concerned with what is meant by “officer,” “state officer,” “state official” or state “executive officer.” We are concerned with the legislative intent in including the words, “ministerial officer,” in relation to this particular statute, not in some other connection. We are not here concerned with the meaning of “officer”
The majority opinion requires the conclusion that, if a bribe were demanded, received or accepted by the state road commissioner, that would constitute a crime under the statute; but that if the state road commissioner, in order to distribute the burdens of his office, or because of a protracted illness or in order to take a vacation in Florida, or for some other reason, should delegate the performance of the duties and responsibilities of his office to an assistant in his department, for a matter of weeks or a month, the assistant could not be guilty of a crime under the statute if he were to demand, receive or accept a bribe in such circumstances as to constitute a crime if the same acts were performed personally by the state road commissioner. The assistant could demand, receive or accept a bribe with complete impunity. See United States v. Hartwell, 73 U.S. (6 Wall.) 385 (1867). So far as the public is concerned, the evil is the same whether the forbidden conduct be performed by the state road commissioner personally or by some other person whom he has designated to perform a portion of his official duties.
The factual question presented for decision in this case cannot be determined on the basis of the title or other designation given to the position held by Luther Carson in the performance of important functions in state government. The question must be determined upon a basis of proof of the nature of the position held and the governmental functions performed by him. “It is no defense to an indictment for attempted bribery of a public officer, that he was not a de jure officer; his official character can not be thus collaterally assailed; it is sufficient that he was a de facto officer.” Weil v. Black, 76 W. Va. 685, pt. 10 syl., 86 S.E. 666 (1915).
These cases clearly present a question of first impression for this Court. There is a paucity of appellate court decisions defining “ministerial officer.” So far as I have been able to determine, our attention has not been directed to any reported court decision from any jurisdiction which defines “ministerial officer” as contradistinguished by statute from any “executive, legislative, judicial * * * officer, or member of the legislature.”
The principles by which we should be guided in these cases are stated in Hartigan v. Board of Regents of West Virginia University, 49 W. Va. 14, 20, 38 S.E. 698, 701 (1901), as follows:
“* * * What is a public office? The word is used in so many senses that it is impossible to give a precise definition covering all cases. It depends, not on what we call it, or even on what a statute may incidentally call it, but upon the powers wielded, the functions performed, and other circumstances manifesting the character of the position. State v. Kennon, 7 Ohio St. 546.”
In Haynes v. Commonwealth, 104 Va. 854, 52 S.E. 358 (1905), it was held that a police officer of a city was an “executive officer” within the meaning of a statute making it a crime for any person to bribe “any executive, legislative, or judicial officer.” In that case the Court quoted with approval the following language from THROOP ON PUBLIC OFFICERS, Section 23:
“The duties imposed upon the officer are supposed to be capable of classification under one of these heads, the legislative, executive, or judicial, and to
pertain accordingly to one of the three departments of government designated by those names. But the classification cannot be very exact, and there are numerous officers who cannot be classified at all under these heads. The reason will be apparent if we name one class as an illustration. Taxing officers perform duties which in strictness are neither executive nor judicial, though in some particulars they must execute the orders of superiors, and others they judge for themselves what is to be done; but sometimes, also, their duties partake of the legislative. All such officers are usually called administrative, while inferior executive officers are designated ministerial.”
The general rule is stated in 67 C.J.S., Officers, Section 2, pages 99-100, as follows:
“Because of the variety of meanings or shades of meaning in which the terms ‘office’ and ‘officer’ may be employed, in determining whether or not a given employment is an office within the meaning of a particular statute or other written law, each case must be determined by a consideration of the particular facts and circumstances involved and of the intention and subject matter of the enactment. The nature of the duties, the particular method in which they are to be performed, the end to be attained, the depositary of the power conferred, and the whole surroundings, must all be considered when the question as to whether a position is a public office or not is to be solved. When the term is used in a statute its meaning must be determined by a construction, not only of the particular section in which it is used, but by the statute as a whole and by other statutes of which the particular one forms a part as being in pari materia; and, also, constitutional provisions should be looked to as aids in deciding the question. Furthermore, the wording of particular statutes may be such that the same position may be held to be an office for one purpose and not for another.”
For reasons stated, I would deny the writs of prohibition in these cases.
I am authorized to state that Judge Berry concurs in the views expressed in this dissenting opinion.