WYOMING BANCORPORATION, Appellant (Plaintiff below), v. Dwight BONHAM et al., Appellees (Defendants below).
No. 4363.
Supreme Court of Wyoming.
Oct. 16, 1974.
Rehearing Denied Oct. 29, 1974.
Juan L. DeHerrera, Cheyenne, for appellee Dwight Bonham.
Henry A. Burgess, of Burgess & Davis, Sheridan, Richard L. Eason, of Simon, Eason, Hoyt & Malone, P. C. Englewood, Colo., for Wyoming Security Bank.
Before GUTHRIE, MCINTYRE and MCCLINTOCK, JJ.
Mr. Justice GUTHRIE delivered the opinion of the court.
Wyoming Bancorporation1 appeals the decision of the District Court of Laramie County, Wyoming, affirming the order of the Wyoming State Examiner authorizing the issuance of a State bank charter to
Under date of April 27, 1972, a letter transmitting the required number of articles of incorporation was signed by George Acker, one of a group of five incorporators seeking the issuance of the charter, and this letter, the copies of the articles, and a check for $500 were on the next day personally delivered to the examiner at his office in Cheyenne. At this time the examiner delivered to one of the representatives of the group an instruction sheet theretofore prepared by the examiner designating what further information should be furnished to the examiner, but orally informed them that the letter and other papers had been accepted as an application for charter. A letter of the examiner dated May 23, 1972, confirmed acceptance of the letter, articles, and check representing filing fee to accompany the Application for Charter and that requirements for “Completion of Application for Charter” had been delivered to applicants at the time the hand-carried letter had been received, and advised that the further information should be received by the examiner within 90 days.
“Application to Organize a State Bank and Representations of Applicants,” in the form required by the instructions delivered to the applicant on April 28, was mailed to the examiner on July 26 and received by him on July 31, 1972. An independent investigation was conducted by the chief investigator for the examiner, and on September 22, 1972, he filed his report recommending that the charter issue.
On June 14, 1972, Bancorporation mailed to the Regional Administrator of National Banks an application for a bank to be located at Sheridan and to be known as Bank of Wyoming, N. A. This application was acknowledged by the administrator to have been perfected on July 18, 1972, and in the letter advising of such acceptance it is stated that field work to investigate the merits of the application would be undertaken forthwith. Following indication of this acceptance, and on August 31, Bancorporation filed its objection to the Security
In keeping with rules of the examiner entitled “Application Proceedings for State Bank Charters,” adopted effective May 25, 1973, a hearing was held by the examiner on June 20, preceded by a prehearing conference on June 11. At both the conference and hearing Bancorporation took the position that another bank was needed in Sheridan but that because of ownership of Security by persons already interested in the Bank of Commerce, a dominant bank in the Sheridan community, the needs of the community for competition would not be satisfied except through issuance to Bancorporation of the Federal charter then being sought by it. Mr. Howes, President of Bancorporation, testified that it protested Security‘s application on the basis that its Federal application was prior in time and that it would be the only bank furnishing competition to the existing banks. Notwithstanding his expressed confidence that the Federal charter would issue, neither he, as the sole witness for Bancorporation, nor any of the witnesses for Security made any attempt to assess the impact upon the Sheridan community of the issuance of both a State and a Federal charter. The feasibility report prepared by the examiner‘s chief assistant as well as the examiner‘s oral remarks prior to closing the hearing likewise do not consider this point.
Prior to closing the hearing the examiner requested each side to submit a summation of the evidentiary material and to submit proposed findings of fact and conclusions of law, along with memoranda as to their respective legal positions. Following the hearing and on July 5, 1973, Bancorporation was advised by the comptroller that preliminary approval had been granted to organize the Bank of Wyoming, National Association, which information was telephoned to the examiner and incorporated in an affidavit filed with Bancorporation‘s memorandum brief. In this memorandum it is claimed that the situation has materially changed and that action of the examiner granting a charter to Security would be subject to court challenge as being arbitrary for want of sufficient information upon which to make a proper decision. It was argued that the examiner did not have sufficient information to justify the issuance of a fourth bank charter, the entire record being predicated upon the issuance of a charter for a third bank. No request was made for permission to submit further evidence concerning the national charter.
On July 31, 1973, the examiner entered his Findings, Conclusions and Order Granting Charter. Three of the findings may be said to relate to the question of
In its petition for review Bancorporation specifically complains of this failure to find that the city or county can economically support a fourth bank despite the fact that Bancorporation has brought home to the examiner the approval of the national institution.
The matter was orally argued to the district court and memoranda were again submitted, with Bancorporation including in its submission the memorandum which had been submitted to the examiner, thereby again emphasizing its claim that a fourth bank charter was being considered by the examiner. Security and the examiner both argued that the question had to be considered on the then status and that the national charter had not yet been finally approved. The examiner also argued that the question of whether a fourth bank charter should issue should be considered by the Federal banking authorities and was not a question for the State court.
A written opinion delivered by the district court expressed the view that the examiner was not required to take cognizance of possibilities that might or might not happen and was entitled to make his decision on the basis of the record as it stood at the time of the presentation to him. It is said that the findings of the examiner embrace the element of competition, location of the bank, growth of the community, and the general character, experience and ability of the incorporation which will tend to sound management and command public confidence. The judgment thereafter entered finds among other things that the examiner inquired into “the convenience and needs of the community to be served by the proposed corporation“; that the examiner was the sole judge as to whether a bank charter should be issued; that his action was supported by substantial competent legal evidence; and that the decision was not arbitrary, capricious, nor an abuse of the examiner‘s discretion and was in conformity with the law.
We agree with certain basic principles cited by Security, namely, that the examiner‘s decision comes to the district court and to us with a presumption of legality and validity, that we may not substitute our judgment for that of the examiner, that the legislature has entrusted to him the determination of approval of bank charters, and that the weight and sufficiency of any evidence in support of the application is for him to decide. All this is underscored by the legislative direction that the examiner shall be the sole judge as to whether or not the charter shall issue. This court has said in Marathon Oil Company v. Welch, Wyo., 379 P.2d 832, 836, citing a number of earlier decisions, that the courts may set aside action of an administrative agency only where its action is “arbitrary or fraudulent or where there is an illegal exercise of discretion; and the
Appellant herein asserts three bases for reversal of this order which it states as follows:
“I. THE STATE EXAMINER ACTED ARBITRARILY AND CAPRICIOUSLY WHEN HE ACCEPTED THE APRIL 27, 1973, LETTER FROM THE APPELLEE AS A PERFECTED APPLICATION FOR A STATE BANK CHARTER.
“II. THE EXAMINER ERRONEOUSLY FAILED TO CONSIDER COMPETITION OR LACK OF COMPETITION IN DETERMINING WHETHER OR NOT TO ISSUE THE WYO. SEC. BANK CHARTER.
“III. THE EXAMINER‘S FINDINGS OF FACT AND CONCLUSIONS OF LAW ARE NOT SUPPORTED BY THE EVIDENCE.”
Appellant seeks to buttress its claim in support of the first-mentioned contention by a showing that the state examiner had made additional requirements for filing of groups seeking State charters in Story, Hanna, and Casper. In our view, this raises a substantial question of standing but we do not decide the question whether appellant might raise these questions which would seem applicable and peculiar only to these applicants about which complaint is made. The fact that we are confronted with a dual system and that each can issue a charter might also raise some interesting questions as to the effect of priority and standing of the parties to raise the same. However, our disposition will not rest thereon. At the time of this filing, April 28, 1972, there were no administrative rules issued by the examiner and the statute was the sole basis of his actions,
Appellant‘s principal contention and upon which it must rise or fall is that the examiner failed to consider the effect of the competition between the Wyoming Security Bank and the appellant, Bank of Sheridan, N.A. This could not have been properly considered by the state examiner, the trial court, or this court, because at the time of the hearing on the issuance of the charter for Security on June 20, 1973, there had been no action at all upon the application of the appellant and nothing could have appeared in the record of that hearing. On July 31, 1973, the date upon which the order was made authorizing the issuance of the charter, there was still no evidence in the record that the appellant bank had been chartered and definite evidence that it did not have any authority to operate at that time, nor was there anything in the record from which the examiner could have made a proper determination that appellant‘s application had been unconditionally approved by the comptroller.
The structure of appellant‘s entire argument must rest solely upon a telephone conversation of July 5,6 and the copy of the telegram attached to the affidavit of Howes dated July 16. The body of this telegram dated July 3 is as follows:
“PRELIMINARY APPROVAL GRANTED APPLICATION TO ORGANIZE NATIONAL BANK AT
SHERIDAN, WYOMING UNDER TITLE ‘BANK OF WYOMING, NATIONAL ASSOCIATION‘. LETTER FOLLOWS.”
The affidavit sets out its receipt by Howes on July 5 and that he had advised the state examiner by telephone. Appellant did not at that time or any time ask to reopen the hearing or make any further showing nor was any mention ever made thereafter of the letter to which reference is made and which may have defined or conditioned “preliminary approval.”
The examiner had before him the testimony of Howes at the hearing that an application for a bank to be chartered by the comptroller required approval by the Federal Reserve System.7 The examiner may also have recognized and known this because of his expertise in this field. In absence of trying to get this preliminary approval and its effect into the record, appellant insists that the examiner could or should take judicial notice of this telegram. The area of judicial notice available in administrative proceedings has been well and closely defined by
We are further aware of the statement in Torgeson v. Connelly, Wyo., 348 P.2d 63, 66, as follows:
“* * * In Wyoming our statute does not permit courts to take judicial notice of the occurrences in Federal bureaus, * * *”
so neither the trial court nor this court is free so to do. This telegram and the information therein not being properly in the record and not being adduced before the state examiner nor being a matter of which he could take official notice, he could base no finding of fact thereon,
Appellant has no ground for complaint. First, it made its reliance upon the telegram and affidavit without any request to reopen and make a proper showing in this proceeding. Second, it did not avail itself of the opportunity to even advise the examiner that it wished to pose this definite question when it failed to submit suggested findings of fact and conclusions of law during the 30-day period which it asked for this purpose. There must have been some purpose in the minds of the legislators when they included as a part of the record “any proposed findings,”
Appellant in its memorandum filed with the state examiner raised the question of the competition between the so-called third and fourth banks, stating:
“What, of course, has happened is that since the hearing the basic facts have been changed because the Comptroller of Currency has issued a National Bank Charter to the Protestants. * * *”
again relying on the equivocal telegram, and concludes that because the record was based upon issuance of a charter for the third bank the proceedings are now moot. We might give great weight to this assertion if it is conceded a charter was issued prior to the decision. However, the state
Unless adverse parties appearing before administrators or administrative bodies are required to frame issues and contentions for decision by the hearing body, such hearings will become meaningless charades necessitating upon appeal what would be factually a trial de novo contrary to the purpose and philosophy of the Administrative Procedure Act. For a reviewing court to reach an asserted proposition of an appellant the issue must have been raised for decision before the administrative body or administrator responsible for the decision. This is admirably expressed by the United States Supreme Court in the case of United States v. L. A. Tucker Truck Lines, 344 U.S. 33, 73 S.Ct. 67, 68-69, 97 L.Ed. 54 (1952), where it is said:
“We have recognized in more than a few decisions, and Congress has recognized in more than a few statutes, that orderly procedure and good administration require that objections to the proceedings of an administrative agency be made while it has opportunity for correction in order to raise issues reviewable by the court. * * *”
See additionally, Moog Industries v. Federal Trade Commission, 355 U.S. 411, 78 S.Ct. 377, 380, 2 L.Ed.2d 370 (1958), rehearing denied 356 U.S. 905, 78 S.Ct. 559, 2 L.Ed.2d 583 (1958), and United States v. Elof Hansson, Inc., 48 C.C.P.A. 91, 296 F.2d 779, 781 (1960), certiorari denied 368 U.S. 899, 82 S.Ct. 179, 7 L.Ed.2d 95 (1961), following Tucker Truck Lines, and with a further discussion. Further, objections must have had particularity as to properly identify the question and to give notice of the contention, National Labor Relations Board v. Seven-Up Bottling Co., 344 U.S. 344, 73 S.Ct. 287, 290-291, 97 L.Ed. 377 (1953). Thus, in our view the competition as between these two banks was never properly posed to the examiner and we cannot now consider or order him to consider it. There must be some finality even in administrative proceedings, as in judicial proceedings, Martellaro v. Sailors, Wyo., 515 P.2d 974, 976.
Appellant‘s last contention that the findings of fact and conclusions of law are not supported by the evidence has been covered in some particulars in the factual statement and preceding remarks. However, it bases this assignment on the following, which it styled “Pertinent Facts“:
“(1) There are presently two existing banks in Sheridan, Wyoming;
“(2) Wyo. Bancorp. has filed an application for a national bank charter in Sheridan, Wyoming, which was perfected July 18, 1972
“(3) Wyo. Sec. Bank has filed an application for a state bank charter in Sheridan, Wyoming, which was perfected July 31, 1972
“(4) The Wyo. Bancorp. national bank charter was issued by the Comptroller of the Currency on July 3, 19738
“(5) Wyo. Sec. Bank state bank charter was issued by the Examiner on July 31, 1973.”
It is apparent that these contentions, although interrelated, do not become operative unless we recognize the asserted claims of priority, first as to filing, and second as to the issuance of a charter. From what has been heretofore said, this position is not viable and we see no reason for further discussion of this matter.
The judgment of the trial court is affirmed.
MCCLINTOCK, Justice (dissenting).
As I understand the majority opinion, it holds that while the question of overbanking a community may be of importance, it was not an issue in the administrative hearing held by the Examiner at the request of Bancorporation, no evidence was presented on the issue at the hearing, and evidence relating to the approval of a national charter for Bancorporation‘s Bank of Wyoming, N.A., was not properly before the Examiner and did not have to be considered by him. Moreover, such evidence as was improperly presented showed only the possibility of such issuance of a national charter and the Examiner did not have to concern himself with mere possibilities.
I must dissent from this view on the principal basis that
I think that this is the case even if we hold that the Examiner, the district court, and this Court were required by niceties of administrative procedure to ignore the undisputed fact, brought to the attention of the Examiner by telephone call and by documents attached to its brief in opposition to the application of Wyoming Security, that on July 3, 1973 the Comptroller of the Currency gave preliminary approval to the issuance of a bank charter for Bank of Wyoming, N.A. I think it is the same if we are required to ignore the further undisputed fact, brought to our attention by counsel for the Examiner by attachment of documents to his brief in this Court, that the Federal Reserve Board had likewise approved the charter, thereby clearing the way for commencement of business by Bank of Wyoming, N.A.
If it is said that I am second guessing the Examiner on the basis of facts that he could not properly consider, my reply is that were the application by Bancorporation still pending, without action thereon by any national authority, it would nevertheless in my opinion be incumbent upon
In reaching this conclusion I accept as premises that the courts may set aside action of an administrative agency only where its action is “arbitrary or fraudulent1 or where there is an illegal exercise of discretion; and the burden of proving arbitrary, illegal or fraudulent action is on the complainant“. Marathon Oil Company v. Welch (Wyo.1963), 379 P.2d 832, 836.
It is also true that the principal function of the reviewing court is “to ascertain whether the administrative board‘s findings of fact are supported by substantial evidence“, Johnson v. Schrader (Wyo.1972), 502 P.2d 371, 374, although basic findings of fact will not be implied from ultimate findings, Chicago and Northwestern Ry. v. Hillard (Wyo.1972), 502 P.2d 189, 193, and cases there cited.
The concept of burden of proof has a place in an administrative proceeding, Pan American Petroleum Corporation v. Wyoming Oil & Gas Conservation Commission (Wyo.1968), 446 P.2d 550, 555, and in administrative proceedings, “as in courts, the burden of proof rests upon complainants“. Chicago and Northwestern Ry. v. Public Service Commission of Wyoming (1958), 79 Wyo. 343, 350, 334 P.2d 519, 521. This is entirely consistent with the general rule stated in First National Bank of Morrill v. Ford (1923), 30 Wyo. 110, 216 P. 691, 694 that “the burden of maintaining the affirmative of the issue involved in the action is upon the party alleging the fact which constitutes the issue * * *“.
I do not believe that the majority intends to hold that the legislature has intended that the Examiner shall be without judicial supervision and direction in the determination of what is required of him under the law. As to whether action is to be considered arbitrary and capricious, it has been said in Marathon Oil Company v. Pan American Petroleum Corporation (Wyo. 1970), 473 P.2d 575, 577 that such action is “wilful and unreasoning action, without consideration and in disregard of facts and circumstances. Bishop v. Town of Houghton, 69 Wash.2d 786, 420 P.2d 368, 373“. The agency must have before it information for the finding of those facts from which it pretends to act, Johnson, supra, Monahan v. Board of Trustees of Elementary School District No. 9, (Wyo.1971), 486 P.2d 235, 237, Pan American Petroleum Corporation, supra, and the agency may not “exclude from consideration facts and circumstances relative to its inquiry which upon due consideration may be of persuasive weight in the exercise of its discretion“. Lake DeSmet Reservoir Company v. Kaufmann (1956), 75 Wyo. 87, 292 P.2d 482, 486, quoting from Am.Jur. Public Administrative Law § 148, p. 492, n. 6.2 Arbitrary and capricious action does not arise only from action that is morally censurable but results from the failure to consider pertinent factors, J. Ray McDermott & Co., Inc. v. Hudson (Wyo.1962), 370 P.2d 364, 370.
The examiner concluded that the proposed bank would “serve the convenience
Conceding that the record may be said to justify the addition of one more bank in the Sheridan community, I believe that the Examiner has failed to consider the effect upon the economic health of the banking community of the possible addition of two banks. I would hold that this failure to consider the effect of two additional banks and the possible overbanking of the community is a direct failure to comply with the legislative mandate and constitutes arbitrary and capricious action on his part, without consideration and in disregard of facts and circumstances, Marathon Oil Company v. Pan American Petroleum, supra.
It seems fairly obvious from the record that it will be more convenient to the businessmen and residents in the south Coffeen Avenue area to have a bank at that point rather than a mile and a half further into the city. But this is not need, otherwise we might permit a bank on every street corner. The statute itself does not refer to the convenience of a small segment of the community; it refers to the need of the whole community and the record clearly shows that the community for this bank as well as the existing Bank of Commerce and First National Bank, and for the then potential Bank of Wyoming, N.A., was not and is not that little portion of the city within a few blocks of its particular location, but was and is all of Sheridan County and even into neighboring counties. Yet the Examiner refers only to a need for better service in the south Coffeen, Big Horn, and Story areas, ignoring the balance of the city and county.
I have no doubt that the danger of overbanking is what the legislature sought to protect against when it directed that the Examiner should inquire into the needs of the community. The question does not appear to have come up frequently in other jurisdictions, but pertinent decisions where need has been considered clearly indicate that bank charters should not be authorized merely on the basis of convenience without regard to the actual need therefor. Thus, in Schaake v. Dolley (1911), 85 Kan. 598, 118 P. 80, 85, where the statute directed the banking authority to investigate “the public necessity of the business in the community in which it is sought to establish the bank“, the court observed: “An unnecessary bank in a community is not a thing of passive uselessness only, and so merely of no benefit. It is an active disturber of the financial peace, to the detriment of the public welfare * * *”3
The question appears to have come arisen in connection with action of the Comptroller of the Currency in issuing certificates for branch banks, particularly in North Carolina, and the federal district courts of that state have not hesitated to interfere with the Comptroller‘s action. Thus, in Bank of Haw River v. Saxon (D.C.M.D.N.C.1966), 257 F.Supp. 75, 79 the district court found that the service area of the proposed bank was served by existing banks offering a full range of services, “that no substantial public or business interest, need or necessity would be served by the establishment of the new bank; and that a new banking facility in the area would not be economically feasible“, and granted injunction against the issuance of the certificate. Similarly, in Bank of New Bern v. Wachovia Bank & Trust Company, N.A. (D.C.E.D.N.C. 1972), 353 F.Supp. 643, 654 the court considered provisions of the North Carolina law found to bear upon the Comptroller‘s powers. This law required consideration of such factors as whether the establishment of the branch or teller‘s window “will meet the needs and promote the convenience of the community to be served by the bank“, with the added requirement that public demand be found to be such as to assure solvency. Finding that the size and strength of the parent bank were such as to assure the solvency of the branch, so that the only real question was the need and convenience of the community, and answering the argument that the Comptroller should be permitted to apply the expertise of his office in making the determination of need, the court made this statement, most pertinent to our own problem:
“* * * Where the choice is between conflicting evidence of future prospects, this is undoubtedly true. * * * But there should be some evidence that prospects for future economic growth are favorable. Here the evidence is at best speculative, and in the view of this court it falls short of establishing that the entry of a new bank into the New Bern market ‘will meet the needs and promote the convenience of the community’ at this time.”
It was therefore determined that the findings of the Comptroller were not supported by substantial evidence and motion for summary judgment invalidating the certificate was granted.4
In this case Security sought the issuance of the charter so it properly follows that it had the burden of showing facts establishing the need for issuance of a charter to it. That question could not be decided without consideration of Bancorporation‘s application and the probable results thereof. Therefore, it is unimportant whether the approval given to that application was final or only preliminary. Its possible issuance was a factor of the utmost importance in determining whether a state charter should also issue, and I think that in the proper exercise of his administrative discretion, at any time that information was presented to him concerning the existence of another application, even if to a different authority, the Examiner had the statutory duty to consider what effect approval of the other charter would have upon the Sheridan community should he elect to issue a state charter, and this regardless of what had been disclosed at the hearing. The issue was squarely before him whether the community could support two new banks, but the Examiner took no evidence and gave no consideration to the issue. I think it significant that there is no word of the Examiner referring to this national bank. He makes no finding with respect thereto and while it may perhaps be assumed that because he ordered the charter issued he tacitly found that it was of no importance or that the federal authorities might back away from issuing the national charter, there is nothing to show that, and the plain uncontroverted fact is that the Examiner has not made a record determination on a matter of vital importance in the exercise of his duty to protect the financial soundness of our banking system.
This dissent has already been too long, but I think that the basic difference between the majority and me is in our disagreement as to the function of the Examiner in the consideration of charter applications. I cannot accept
In my opinion, however, the issue is not one of mere procedure, burden of proof, or taking official notice. The statutory right of the Examiner to be the sole judge whether a charter shall issue is at all times subject to the qualification that he must act according to law and not arbitrarily. A decision reached upon a record that omits facts essential to the determination is one taken without sufficient information and is therefore arbitrary, Monahan, supra.
I would not suggest that an exercised discretion is to be reviewed as to the merits of the decision and I would not want this dissent to be taken as an indication of any belief on my part that overbanking will result in the Sheridan community. That would be a question for the Examiner to decide, but since I am of the opinion that he has failed to consider a vital and important element essential to the public interest and his right to issue an additional charter, I therefore believe that within the most restrictive concepts of judicial review of administrative action the matter should be remanded to him for the purpose of considering the possibility of overbanking in the Sheridan community.
ON PETITION FOR REHEARING
PER CURIAM:
Wyoming Bancorporation has filed herein its “Petition for Reargument“, requesting the court to withdraw its opinion in the matter and schedule the appeal for reargument before Justices Guthrie and McClintock (both of whom participated in the decision handed down herein on October 16, 1974) and a third justice or judge as may be designated, or, in the alternative, before a panel of five judges. The basis of the application is the hospitalization of Mr. Justice McIntyre, who was the third member of the panel hearing oral argument upon the case and whose concurrence in the majority opinion as written by Mr. Justice Guthrie is questioned.
This Court has no rule and has rendered no decision pertaining to reargument but our
“A very fine and I think nonexistent distinction is drawn when it is contended, as plaintiff contends here, that an order granting a reargument is one thing and an order granting a rehearing is another
thing. After all, what is a rehearing? In an appellate court it is nothing more than a reargument. It was so ruled by the Supreme Court of Missouri in just those words in Granite, etc., Co. v. Park View Realty & Improvement Co. et al, supra [270 Mo. 698, 196 S.W. 1142]. In that case it was said (270 Mo. loc. cit. 700, 196 S.W. 1142, 1143) ‘that the term “rehearing” indicates, i. e., that the case is for reargument and resubmission.‘”
We therefore treat the petition as an application for rehearing. We have previously recognized that our rule does not specify the grounds upon which a rehearing will be granted, but we would concede that the hospitalization of a justice who has heard the oral argument as a member of a three-justice panel as permitted by
This is not such a case. Mr. Justice McIntyre, as was his continuing practice, carefully considered the briefs in the matter prior to the oral argument, participated actively in the argument, and in oral conference following the argument, and specifically considered and rejected an opinion of Justice McClintock, tendered by him as the opinion of the panel, and then considered and joined in the opinion tendered by Justice Guthrie. We therefore have no hesitation, with the complete agreement of the dissenting justice, in stating that concurrence by Justice McIntyre, whose hospitalization has been of such a nature as not to preclude conference with other judges and thoughtful consideration of the facts and issues involved in the cause, represents a thoughtful and active concurrence in the majority opinion as heretofore rendered and filed herein.
The petition for rehearing is therefore denied.