State ex rel. Irvine v. Brooks, 84 P. 488

84 P. 488 | Wyo. | 1906

Beard, Justice.

The relator, William C. Irvine, commenced this action in this court against the defendant Bryant B. Brooks as Governor of the state, praying that a writ of mandamus be issued to the Governor commanding him to deliver to relator a certificate of his election as State Treasurer for the period of four years from and after the first Monday in January, 1905. The allegations of the plaintiff’s petition, so far as necessary to an understanding of the questions presented, are in substance: That at the regular election held in the state in the year 1902,'one Henry G. Hay was duly elected to the office of State Treasurer for the term of four years; that on September 19, 1903, said Hay resigned and the relator was thereupon appointed by the Governor to fill the vacancy in said office until the next general election occurring in 1904. That at that election the relator was duly elected to the office of State Treasurer; that the votes were duly canvassed and the state canvassing board duly certified the result of said election to the Secretary of State, which certificate showed that relator had been elected to said office. That the Secretary of State, who was acting as Governor, by reason of the death of the Governor, which occurred April 28, 1903, did on the tenth day of December, 1904, and after the state canvassing board had filed its certificate in the office of the Secretary of State, sign, seal and cause to be left upon the desk of relator a certificate reciting that relator had been lawfully elected as Treasurer of the State of Wyoming for the remainder of the unexpired term of Henry G. Hay, resigned. That as soon as relator discovered said certificate, on or about December 26, 1904, he requested the Secretary of State, who was still acting as Governor, to execute and deliver to him a certificate showing his right to hold said office of Treasurer for the period of four years from and after the first Monday in January, 1905, which the Secretary of State, acting as Governor, refused to do. That the defendant, Bryant B. Brooks, was duly elected Governor of the state at the general election in 1904 as the successor of Governor DeForest Richards, deceased, and that he qualified and entered upon the discharge of his duties as Governor January 2, 1905. That on or about January 18, 1905, the relator demanded of and from the defendant, as Governor of the state a certificate of election showing his election to the office of State Treasurer and his right to hold the same for the period of four years from and after the first Monday in January, 1905, which the Governor refused to issue.

On the presentation of the petition to the Chief Justice of this court an alternative writ of mandamus was issued against the defendant and made returnable to the court. The defendant appeared by the Attorney General of the state and filed a demurrer to the petition and writ upon the following grounds:

“1. That the court has no jurisdiction of the person of the defendant, or the subject of the action.

“2. That the petition and writ filed herein do not state facts sufficient to. constitute a cause of action.'4

Two questions have been presented for our consideration, and have been ably argued by counsel, viz:

1. Has this court jurisdiction to issue a writ of mandamus against the chief executive of the state?

2. What is the length of plaintiff’s term of office?

On the first question the Attorney General contends' that the court is without jurisdiction for the reason that under our form of government the powers of government are divided into three distinct departments; the legislative, executive and judicial, and no person or collection of persons charged with the exercise of powers properly belonging to one of these departments shall exercise any powers properly belonging to either of the others, except as expressly directed or permitted by the constitution; and that the assumption of jurisdiction by the court to issue a writ of mandamus against the Governor requiring him to execute and deliver a certificate of election in this case would be exercising powers by the court which properly belong to the executive department of the government. If the duty enjoined upon the governor in this instance is political or executive and is such a duty’ as involves the exercise of discretion in the manner of its performance, then it is clear that the court cannot interfere to control that discretion. Whether or not the court has jurisdiction in any case to issue the writ of mandamus to the chief executive is a question upon which the decisions of the courts are not harmonious, nor do the text writers agree in their conclusions. In many of the cases which hold that the court is without jurisdiction, the decisions are based upon the conclusion that the duty, the performance of which was sought to be enforced, was a political duty, in the performance of which the executive had the right to exercise discretion. An early leading case on that side of the question and one most often cited by the courts in which the writ has been denied is Hawkins v. The Governor, 1 Ark., 570. Hawkins applied to the Supreme Court of Arkansas for a writ of mandamus against the Governor to require him to issue a commission to Hawkins as Commissioner of Public Buildings, to which office he claimed to have been duly elected by the General Assembly. The Governor refused to issue the commission on the ground, that at the time the election was held there was no law in force authorizing the Legislature to hold an election for that office. The court declined to. take jurisdiction of the case for the reason that the duty imposed upon the executive was a duty imposed by the constitution and was “strictly and exclusively political” and that the executive was therefore invested' with discretion. But the case does not hold that, had the duty been clearly ministerial, the court would have been without jurisdiction to issue the writ or in so doing would have been assuming powers properly belonging to the executive department of the government. Another case much relied upon and often cited is Sutherland v. The Governor, 29 Mich., 320. That case follows the reasoning in the Arkansas case and is based solely on the ground that the duty imposed upon the governor was a political one, where he had the right to exercise discretion. It is said, “Moreover, it is not customary in our republican government to confer upon the governor duties merely ministerial, and in the performance of which he is to be left with no discretion whatever; and the presumption in all cases must be, where a duty is devolved upon the chief executive of the state rather than upon an inferior officer, that it is so because his superior judgment, discretion, and sense of responsibility were confided in for more accurate, faithful, and discreet performance than could be relied upon if the duty were devolved on an officer chosen for inferior duties.”

It may not be customary to impose ministerial duties upon the chief executive; but if they are so imposed, how can it be said that the character of the duty has been changed from one that is ministerial to one that is discretionary? The character of the duty must be determined by the nature of the act to be performed and not by the office of the performer. If the Legislature might have required plaintiff’s certificate of election to- have been executed and delivered by the Secretary of State or some other officer, and in so doing- he would have been performing a merely ministerial duty, then it must necessarily remain ministerial when conferred upon the Governor.

We have examined many other cases holding that the court is without jurisdiction with the result that in a majority of them the decisions are based upon the ground that the duty enjoined upon the chief executive, the performance of which was sought to be enforced, was a political and not a ministerial duty; while in others, as in Michigan, it is held that all duties imposed upon the Governor, whether by the constitution or statute, are to be regarded as political or executive and therefore involving discretion. A ministerial duty has been variously defined. “The most important criterion, perhaps, is that the duty is one which has been positively imposed by law and its performance required at a time and in a manner or upon conditions which are specifically designated, the duty to perform under the conditions specified not being dependent upon the officer’s judgment or discretion.” Mechem on Public Officers, Sec. 658. “A ministerial duty, the performance of which may, in proper cases, be required of the head of a department, by judicial process, is one in respect to which nothing is left to discretion. It is simply definite duty, arising under conditions admitted or proved to exist, and imposed by law.” State v. Johnson, 4 Wall. (U. S.), 475; 498. “ A ministerial duty is one in respect to which nothing is left to discretion.” Sullivan v. Shanklin, 63 Cal., 247, 251. “Where the law prescribes and defines the duties to be performed with such precision and certainty as to leave nothing to the exercise of discretion or judgment the act is ministerial.” Commissioner v. Smith, 5 Tex., 471; Rains v. Simpson, 50 Tex., 495, 32 Am. Rep., 609.

Discretion in the manner of the performance of an act arises when the act may be performed in one of two or more ways, either of which would be lawful, and where it is left to the will or judgment of the performer to determine in which way it shall be performed. But when a positive duty is enjoined and there is but one way in which it can be performed lawfully then there is no discretion. In this case the state canvassing board had performed its duty and had made and filed in the office of the Secretary of State its certificate containing a statement of the votes canvassed and the result thereof, which showed that relator had received the highest number of votes for State Treasurer. It then became the duty of the Governor to give him a certificate of election. Sec. 351, R. S. 1899. The statute does not prescribe the form of the certificate, but it being the evidence of plaintiff’s title to the office and of his right to take and hold the same, should contain the name of the person elected, the title of the office and the term to which he had been elected. There was nothing left to the discretion of the Governor. The canvassing board had certified that relator had received the highest number of votes and the constitution and laws fixed the length of the term. The duty was purely ministerial and might as well have been enjoined upon some other officer. It was not a duty imposed by the constitution, if that could make any difference, but by the statute only; and that it was not regarded by the Legislature as a political or executive duty, which could properly be performed by the Governor only, clearly appears by Sec. 370, R. S. 1899, where provision is made for determining a tie vote for state officers by the Legislature; in which case the certificate of election of the person so chosen is to be issued to him by the Secretar}'' of State.

The duty being ministerial, we think the weight of authority and the better reasoning is in favor of the jurisdiction of the court to. issue the writ and is not an assumption of executive powers. The court does not attempt to perform the act; but simply interprets the provisions of the constitution and laws under which the Governor is required to act. That is the peculiar province of the judiciary, and its interpretation of the law is as binding upon the executive as upon any other citizen. In discussing this question the Supreme Court of Ohio in the case of The State ex rel. Whiteman v. Governor, 5 O. St., 528, said: “It is claimed, on the part of the defense, that, inasmuch as the government is by the constitution divided into three separate and co-ordinate departments, the legislative, the executive, and the judicial, and inasmuch as each department has the right to judge of the constitution and laws for itself, and each officer is responsible for an abuse or usurpation in the mode pointed out in the constitution, it necessarily follows that each department must be supreme within the scope of its powers, and neither subject to the control of the other for the manner in which it performs, nor its failure to perform, either its legal or constitutional duties. This argument is founded on theory rather than reality. That each of these co-ordinate departments has duties to perform in which it is not subject to the controlling or directing authority of either of' the others, must be conceded. But this independence arises not from the grade of the officer performing the duties, but by the nature of the authority exercised. * * * * In Marbury v. Madison, 1 Cranch, 170, Chief Justice Marshall said: ‘It is not by the office of the person to whom the writ is directed, but the nature of the thing to be done, that the propriety or impropriety of issuing a mandamus is to be determined,’ and further on in the same opinion the court says: ‘But there is nothing in the nature of the chief executive office of this state which prevents the performance of some duties merely ministerial being enjoined upon the Governor.. While the authority of the Governor is supreme in the exercise of his own judgment or discretion, the authority of the judiciary of the state is supreme in the determination of. all legal questions involved in any matter judicially brought before it.’ ” In that case the application was for a writ pf mandamus against the Governor to require him to issue a certificate to a bank as a branch of the State Bank of Ohio, and it was held that the duty to do so imposed upon the Governor was ministerial, and that the court had jurisdiction; although the writ was denied for other reasons.

In the case of Magruder v. Swann, Governor, 25 Md., 173, which was an application for a writ of mandamus against the Governor to require him to issue to the petitioner a commission as Circuit Judge, after reviewing the decisions on the question of jurisdiction, the court said: “The Governor, in his political and executive duties requiring the exercise of his judgment and discretion, is entirely independent of any other authority. But all judicial power is as absolutely committed to the Judiciary Department, as political or executive power is to the Governor. Among these judicial duties is the decision of controversies between man and man, whether they involve the right to office, life, liberty or property, or arise under the provisions of the constitution, statute or common law.” The court held that it had jurisdiction and ordered the writ to issue. This decision was followed and approved in Groome, Governor, v. Guinn, 43 Md., 572.

We cite the following cases, but without reviewing them here, which hold that duties such as are imposed upon the Governor in this case are merely ministerial and that the court has jurisdiction to issue a writ of mandamus against the Governor requiring their performance. (Greenwood Cemetery Land Co. v. Routt, 17 Colo., 156 (31 Am. St. Rep., 284.); Chumasero v. Potts, 2 Mont., 242; McCauley v. Brooks, 16 Cal., 11; Middleton v. Low, Governor, 30 Cal., 596; Harpending v. Haight, Governor, 39 Cal., 189; Martin, Governor, v. Ingham, 38 Kan., 641; State ex rel. Bates v. Thayer, 31 Neb., 82; State ex rel. Wright v. Savage, 90 N. W. Rep. (Neb.), 898; Cotton v. Ellis, Governor, 7 Jones Law (52 N. C.), 545; Traynor v. Beckham, Governor, 25 Ky. L. Rep., 283, 74 S. W. Rep., 1105.) In Nevada.the court took jurisdiction, although the question was not raised or discussed. (State ex rel. Wall v. Blasdel, Governor, 4 Nev., 241; State ex rel. Laughton v. Adams,, Governor, 19 Nev., 370. See also State ex rel. Lockwood et al. v. Kirkwood, Governor, 14 Ia., 162, and The State v. Foster, 38 O. St., 599.)

Another reason, presented by the Attorney General, and stated in some of the cases, why the court should not take jurisdiction is, that the governor might refuse to comply with the order of the court; and being the commander in chief of the military forces of the state could successfully resist the enforcement of the writ; and that it would be humiliating for the court to render a judgment which it had not the power to.enforce. The answer to that objection is that the jurisdiction of the court does not depend upon its physical ability to enforce its judgments; but upon its right to hear and determine the matter in controversy; oí-as the word itself means, the right to declare the law. To> refuse to take jurisdiction for that reason would be to assume, which this court will not do, that the Governor might knowingly violate the constitution and his oath of office-which require him to take care that the laws are faithfully executed. In but few of the states where the question has-been decided are the constitutions and statutes like those-of this state. Our statute, Sec. 4194, R. S. 1899, defines, the writ of mandamus as follows: “Mandamus is a writ-issued in the name of the state to an inferior tribunal, a corporation, board or person commanding the performance of an act which the law specially enjoins as a duty resulting; from an office, trust or station.” And Sec. 3, Art. V, of the Constitution provides: “The Supreme Court shall have original jurisdiction in quo warranto and mandamus as to all state officers, and in habeas corpus.” It may be said that it was the intention of this section to confer original jurisdiction upon the Supreme Court. That is undoubtedly true; but we must assume that the framers of the constitution, among whom were a number of able lawyers, were aware of the conflict of authority upon this important question and that they used the words “as to all state officers” advisedly.

We are of the opinion that the duty imposed upon the Governor in this instance is purely ministerial; that the court has jurisdiction; and that the writ should issue, if the contention of the relator that his term of office is four years from and after the first Monday in January, 1905, is correct.

The length of plaintiff’s term of office depends upon the proper construction of the constitutional provisions, and so far as they relate to the office of State Treasurer are as follows:

Art. IV, Sec. 11. “There shall be chosen by the qualified electors of the state at the times and places of choosing members of the Legislature, a Secretary of State, Auditor, Treasurer and Superintendent of Public Instruction, who shall have attained the age of twenty-five years respectively, shall be citizens of the United States, and shall have the qualifications of state electors. They shall severally hold their offices at the seat of government, for the term of four (4) years and until their successors are elected and duly qualified, but no person shall be eligible for the office of Treasurer for four (4) years after the expiration of the term for which he was elected.”

Art. VI, Sec. 5. “All general elections for state and county officers, for members of the House of Representatives and the Senate of the State of Wyoming, and Representatives to the Congress of the United States, shall be held on the Tuesday following the first Monday in November of each even year. Special elections may be held as now, or as may hereafter be provided by law. All state and county officers elected at a general election shall enter upon their respective duties on the first Monday in January next following the date of their election, or as soon thereafter as may be possible.”

Art. IV, Sec. 7. “When any office from any cause becomes vacant, and no mode is provided by the constitution or law for filling such vacancy, the Governor shall have the power to. fill the same by appointment.”

Art. XXI, Sec. 20. (Schedule.) “Members of the Legislature and all state officers, District and Supreme Judges elected at the first election held under this constitution shall hold their respective offices for the full term next ensuing such election, in addition to the period intervening between the date of their qualification and the commencement of such full term.”

The constitution of the state was adopted at a general election held November 5, 1889, and the state was admitted into the union by an act of Congress, approved July 10, 1890, and the first election held under the constitution was held September 11, 1890.

Before proceeding to the consideration of the question of the length of the term of office of the relator in this case, it may be well to state what we consider to be the rules of law governing such cases, and we cannot do so better than by quoting the rules as stated in A. & E. Enc. Law, as follows : “Where the time of the commencement and termination of the term of an office, as well as its duration, are definitely fixed by constitutional or statutory enactment, and provision is made for filling vacancies therein by appointment or election, but without any provision as to the duration of authority of a person so appointed or elected, such person is entitled to serve for the remainder of the unexpired term. But where the term of an elective office is fixed by the constitution or statute, but without any time being established for its beginning or ending, a person elected to the office will be entitled to hold for the period established as the full term thereof, whether he was elected upon the happening of a casual vacancy or at the expiration of a complete term.” (23 Enc. Eaw (2nd Ed.,) 418, and cases cited in notes. See also Parcel v. State ex rel. Lowrey, 110 Ind., 122. Tansey v. Stringer, 76 S. W. (Ky.), 573; Adams v. Doyle, 73 Pac. (Cal.), 582; State ex rel Godard v. Andrews, 67 Pac. (Kan.), 870; Ladd v. Board of Trustees, 80 Ill., 233.)

We have not overlooked other cases construing somewhat similar provisions in constitutions and statutes where it has been held that the person elected to fill a vacancy would hold for the full term; but upon a careful examination of all of the authorities at our command we think the rules above stated are sound in reason and in accordance with the policy of our constitution and laws.

There is no contention in this case that the relator was not properly elected at the general election in November, 1904, to fill the vacancy caused by the resignation of Hay. The Attorney General concedes that the appointee of the Governor held only until the vacancy could be filled by election. The duration of the official term is definitely fixed by the constitution at four years, and it is also admitted by both parties that Hay was elected for the full term commencing on the first Monday in January, 1903. From the time of the admission of the state up to the time of the resignation of Hay there had been no vacancy in the office of State Treasurer by the death or resignation of the Treasurer or ■otherwise than by the expiration of the term. Up to that time each incumbent of the office had served for the full term and his successor had been regularly elected at the general election next preceding- the expiration of the term. It is true that the year in which the first state officers’ full terms should commence was not named in the constitution, nor could it be. The state had not been admitted when the constitution was framed and adopted and it could not be known at that time when, if ever, the territory would be admitted as a state and the constitution take effect. Therefore, in order to definitely fix the beginning of the full term of the first state officers, it was provided, that all state officers elected at the first election held under the constitution should hold office for the full term next ensuing such election in addition to the period intervening between the date of their qualification and the commencement of such full term. The state having been admitted in July, 1890,. the full term of the -state officers elected at the first state election, which occurred in that year, commenced on the first Monday in January, 1891, and the full term being four years, that term necessarily ended on the first Monday in January, 1895, when a new term commenced, and so on, one term ending and a new term commencing every four years from the first Monday in January, 1891. In our opinion the constitution not only fixed the length of the official term of the State Treasurer, but also definitely fixed the date of the commencement and end of the term.

We are very much aided in construing these provisions, of the constitution by the construction placed thereon by the-first Legislature of the state which convened on the 12th day of November, 1890. By Chap. 68, S. L. 1890-91, after-providing in Sec. 1 of that chapter for the holding- of a general election in the state on the Tuesday next following the first Monday in November in the year 1892 and each second, year thereafter, at which elections certain named county and precinct officers should be elected, further provided in-Sec. 4, “At each of said general elections there shall also-be elected such state officers as may be required to be elected to fill any vacancy occurring by operation of law, or the constitution of this state, including any vacancy or vacancies in the office of Justice of the Supreme Court.” And in Sec. 5, provision was made for the election of presidential electors at the general election in-1892 and each fourth year thereafter. And by Sec. 6, “At the general election held in the year one thousand, eight hundred and ninetjr-four, and at the general election held every fourth year thereafter, there shall be elected a Governor, a Secretary of State, an Auditor, a Treasurer, a Superintendent of Public Instruction, and such other state officers as are, or may he, created by law and made elective, whose election shall occur, or ought to occur at such general election.” The act, having been passed by the legislature, was approved by the Governor January 10, 1891. It requires no argument to show that both the Legislature and the Governor construed the constitution to mean that the state officers named in the section last above quoted were to be elected for full terms every four years by Sec. 4; and that vacancies occurring in such offices prior to the intermediate elections should be filled at such intermediate elections for the balance of the term, and that the full terms of such state officers were to commence on the first Monday in January, 1895, and each four years thereafter; the full term of the first set of state officers having commenced on the first Monday in January, 1891. This interpretation having been placed upon these provisions of the constitution by the first State Legislature, while not conclusive, is certainly entitled to much weight in determining the true meaning of the language used in the constitution.

It has been urged that inasmuch as the constitution, Art. IV, Sec. 11, provides that a State Treasurer shall be elected at the “times and places of choosing members of the Legislature” who shall hold his office for four years; and that the relator having- been elected at a general election his term is necessarily for the full term of four years. That is not, in our opinion, the meaning- of the section. The purpose was to avoid frequent elections and in case of a vacancy in any state office or when the terms of state officers would expire before the next general election, those places should be. filled at the same elections at which members of the Legislature were chosen. In the case of In re Moore, 4 Wyo., 98, decided in 1892, it was held that an election for governor to fill the unexpired term of the former Governor, who had resigned, was properly held at the general election and that the person so elected would enter upon the duties of his office on the first Monday in January following his election. The election in that case was held in November, 1892, and was not at the time for the election of state officers generally. Conaway, J., who delivered the opinion of the court, said: “Still it is contended that the election of Governor Osborne was not, within the meaning of the constitution and the statutes, 'at a general election;’ that as to the office of Governor, the election was special; that vacancies in office for unexpirecl terms must necessarily be filled at special elections, and conversely that the election of an officer at a general election is necessarily for a full term. Such is not the idea of the constitution in providing that ‘if a vacancy occur in the office of a Justice of the Supreme Court the Governor shall appoint a person to hold the office until the election and qualification of a person to fill the unexpired term occasioned by such vacancy, which election shall take place at the next succeeding general election.’ (Const., Art. V, Sec. 4.) Such is not the idea of those statutes in providing, in accordance with the constitutional idea and policy, for filling vacancies for unexpired terms at general elections. Such is not the idea of the Legislature of Wyoming on this subject for many years preceding the adoption of the state constitution. It has been the uniform policy to fill remaining- portions of unexpired terms of officers in cases of vacancy, as far as practicable, at general elections. And this is the evident policy of our constitution and of our present statutes.” While the question in that case was not the length of the term of the Governor elected to fill a vacancy, the language used by the court clearly indicates that a state officer elected at a general election to fill a vacanc}'- would hold only for the remainder of the unexpired term. Although that case cannot be regarded as an authority on the question we are now considering, yet it has a strong bearing upon the question and aids materially in the proper interpretation of the constitution. It is also argued that the people have construed these constitutional provisions and having done so the court should follow that construction or at least consider it of great weight in determining the question; and counsel call attention to the situation in three of the judicial districts of the state where judges elected to fill vacancies have been permitted to hold during the full term of six years. That a uniform popular construction of a constitution or statute, fairly made and long acquiesced in, is a-strong reason for maintaining such construction cannot be doubted. But in this state the so-called popular construction of somewhat similar constitutional provisions with regard to other offices has not been uniform. In at least one of the districts referred to, that construction was challenged by a proceeding in this court in the case of State ex rel. Sammon v. Chatterton, 12 Wyo., 168, where the question was sought to be raised; but the case went off on demurrer for the want of necessary allegations in the petition to raise the point.

In 1892 Governor Osborne was elected to fill a vacancy in the office of Governor caused by the resignation of Governor Warren. He served for the unexpired term only, and no claim was made that he was entitled to a full term. Both political parties placed candidates in nomination for Governor in 1894 and at the eleection in that year Governor W. A. Richards (a Republican) was elected (Governor Osborne being a Democrat) and no objections were made to Governor Richards assuming the duties of the office on the first Monday in January, 1895, although at that time the struggle for political supremacy between the two political parties in this state was at high tide. So that so far as the popular constructions of similar provisions of our constitution to those we are now considering are concerned, they have not been uniform and are of but little if any aid in determining the question. The term of a Governor or a District Judge elected to fill a vacancy is not, however, involved in this case.

The vacancy which was created by the resignation of Hay was in his term only. By his resignation he could create no vacancy in a term which was not to commence until the first Monday in January, 1907, no part of which he was entitled to hold; and no election could be held in 1904 to fill a vacancy in that term because none existed or could exist until after the election in 1906, which would be the general election next preceding the commencement of that term. It was said in The People ex rel. Jackson v. Potter, 47 N. Y., 376, “Mr Justice Rosekrans could not resign that which he did not hold. He did not hold nor was he entitled to hold the term beginning- January 1st., A. D. 1872, nor airy part thereof. He could not then resign that term nor any part of it. Plence the resignation which he made could create no vacancy in the office for that term to lie filled, nor for any part thereof. The vacancy which he did create was for the remainder of his unexpired term, and for no other time. This was the vacancy to be filled and no other.” That case is cited and approved in Simpson v. Willard, 14 S. Car., 191.

Our conclusions are, that plaintiff was elected at the general election in 1904 for the unexpired term of ITenry G. Hay, resigned, only; and that the Governor rightly refused to issue to him a certificate of election for any longer period.

The demurrer of the defendant to plaintiff’s petition is, therefore, overruled as to the first ground of demurrer, and is sustained as to the second ground. A peremptory writ of mandamus is denied.

Potter, C. J., and Scott, J., concur.