
    John Sebastian, Treasurer of Hamilton County, v. The Covington and Cincinnati Bridge Company.
    1. The general tax law of April 13, 1852, (S. & C. 1439), authorizes corporations previously created by special enactments, to surrender all franchises by which the general taxing power of the State is in any manner restrained or controlled, and to submit themselves thereto.
    2. The seventh clause of the act of Marcn 9, 1849, “to confirm the charter of the Covington and Cincinnati Bridge Company, incorporated by an act of the general assembly of Kentucky, &o.,” (47, O. L. L., 269), which requires that “one-half the capital stock of the company actually paid in, shall, as soon as the company commences taking tolls, be placed upon the duplicate of the treasurer of Hamilton county for taxation for all purposes,” is a franchise, in the nature of a compact between the State of Ohio and the bridge company, that cannot be abandoned, surrendered or modified, without the concurrence of the contracting parties.
    3- The president of the Covington and Cincinnati Bridge Company cannot make a valid surrender of its franchises, in the absence of authority therefor given to him by the corporation. The exercise oí such power is not one of his ordinary functions.
    ■4. The Covington and Cincinnati Bridge Company, not having authorized it, an offer by its president to surrender its franchises contained in the seventh clause of its charter, and to make return of its property for taxation under the existing general law, imposed no obligation on the auditor of Hamilton county to accept and act upon it officially.
    5. The compact in the seventh clause of the Covington and Cincinnati Bridge Company’s charter, not having been waived nor surrendered by it, tie assessment of a rateable tax by the auditor of Hamilton county, after the company commenced taking toll, on one-half its capital stock actually paid in, is valid,
    Error to the court of common pleas of Hamilton county, Reversed in the district court.
    The act of March 9, 1849, to confirm the charter of the Covington and Cincinnati Bridge Company, incorporated by an act of the general assembly of Kentucky, passed February 17, 1846, with certain limitations ” (47 O. L. L. 269), in express terms constituted the company a corporation of this State. By this confirmatory act, the company was empowered to erect and maintain a bridge across the Ohio river, between the cities of Cincinnati and Covington, upon the following, among other conditions, to wit:
    
      “ First. That the said company shall not erect any bridge-over the Ohio river, in the erection or continuation whereol a pier or piers may be requisite.”
    “ Sixth. That nothing herein contained shall be construed to take away the jurisdiction of this State to the centre of said bridge, nor in anywise to acknowledge the jurisdiction of the commonwealth of Kentucky this side of the said centre.”
    “ Seventh. One half the capital stock of the company actually paid in, shall, as soon as the company commences-taking toll, be placed upon the duplicate of the treasurer of Hamilton county, for taxation for all purposes.”
    It was also provided, that “ it shall be the duty of said company, in case the corporation thereof shall accept the provisions of this act, to notify the secretary of state of such acceptance, in writing, over the hands of a majority of thecorporators,” &c.
    Under this legislation, and the acts amendatory thereof, the company erected a suspension bridge, resting on two-towers, situated above the low water level of the Ohio river, in the States of Ohio and Kentucky respectively, and on the first day of December, 1866, commenced taking tolls-thereon. One half the capital stock of the company then actually paid in amounted to $536,884.00, which the auditor of Hamilton county entered for taxation on the treasurer’s duplicate for the year 1867, under the head of “ Value of personal property.” and assessed thereon taxes to the amount of $14,700.00.
    These taxes remaining unpaid, the treasurer of Hamilton county made application, under the 38th section of the tax law of 1859 (2 S. & C. 1454), for a rule against the company, to show cause why it should not pay the same, as provided by the seventh clause of its charter above cited.
    The company answered, setting forth, among other matters, that the seventh clause of its charter prescribed a special rule of taxation, which became and was a contract between the State of Ohio and the company, incapable of being abandoned or modified, except by the concurrence of both the contracting parties; that the constitution of 1851 required the passage of laws prescribing a uniform rule of taxation; that the act of April 13, 1852 (2 S. & C. 1439), prescribed such rule, which, in express terms, embraced the property of existing corporations ; that by the twenty-first section of the act such bridge company is required to list for taxation, at its actual value, its real and personal property, moneys and credits, within this State; and that, by the third section, it is provided that the taxes levied and col lected in pursuance of the provisions of this act, shall be in lieu of all taxes which such company was by former laws required to pay.
    The answer further avers, that the act of 1852, and the several provisions thereof, became and was an offer, on the part of the State, to abandon the special rule of taxation prescribed in the charter of the bridge company, and to substitute the uniform rule of said general law, which, when accepted by the company, should become obligatory upon it; “ that the said company thereafter accepted the offer so made to it, and by reason thereof *, * * became and was subject to the rule of taxation prescribed for bridge companies in the said act;” that, for many years before the company commenced taking tolls, its property was listed for taxation, and the taxes paid thereon, in accordance with the provisions of said act; that, on the 14th day of May, 1867, the company, by its proper officers, made return of its taxable property, at the time and in the manner required by said act; and thereafter, at the proper time, rendered to the treasurer of Hamilton county the amount of taxes due thereon.”
    The answer then negatives all default of the company, and the authority of the treasurer to demand said assessment, and resists the issuing of the rule.
    The reply of the treasurer denies specially each averment •of the answer, except those setting forth the provisions of the constitution; the tax laws passed in pursuance thereof; and the contract rule of taxation prescribed in the company’s charter.
    
      The common pleas dismissed the application, without prejudice to the right of the proper authorities to assess and collect the taxes proper under the general law. A bill of exceptions embodying the evidence was signed for the treasurer, on the trial, and the cause taken on error to the district court, wherein it was reserved for decision here.
    The record shows that on the trial the treasurer rested with presenting the entry on the tax duplicate.
    The material part of the defendant’s evidence is in substance as follows:
    In March, 1867, the auditor of Hamilton county notified Mr. Shinkle, president of the bridge company, to furnish him the amount of half its capital stock actually paid in, to be placed upon the duplicate of the treasurer for taxation under its charter. Mr. Shinkle immediately repaired to the office of the auditor, and furnished him the required information, but controverted his right to enter the amount upon the duplicate, or to make the capital stock of the company the subject or basis of taxation, He “ offered to make a return of the property of the bridge company under the general law.” The deputy auditor, with whom the conversation was had, replied that “he could not receive a return for the property of the company under the general law, for the reason that the charter of the company required a different mode of valuing its property for taxation.”
    Mr. Shinkle then withdrew, and returned again to the office in May, 1867. “ He then claimed that, under the general law, the company was subject to taxation for only so much of its bridge as was north of the line of low water of the Ohio river.” The following paper was then written and signed by him, in the office of the auditor, and presented to that officer:
    “ Cincinnati, May 14, 1867.
    “To A. Willioh, Auditor of Hamilton County:
    
    “ The Covington & Cincinnati Bridge Company return for taxation, for the year 1867; two hundred and fifty thousand dollars.
    “A. Shinkle, Prest. O: & C. Bridge Co."
    
    
      The officer “ objected to the amount of the return, because it was not under the charter,” and told Mr. Shinkle “ he could not receive the paper as a return ; that he would take and file if, but that a return of half the amount of the capital stock under the charter would be required.”
    Another witness to the same interview testified • that Mr. Shinkle “ proposed to make a return of what in his (Mr. Shinkle’s) judgment was all the property of the company in Ohio.” * # * “ claimed to return the amount under the general law,” and the officer “ claimed that he must return the amount required by the charter.”
    The company also gave in evidence the original assessment made by the auditor, for the year 1867, “ on $536,-884.00, being one-half the capital stock of the company actually paid in,” and sundry receipts for taxes paid by the company on several parcels of real estate in the city of Cincinnati, between the years 1856 and 1866, inclusive.
    On the cross-examination of the defendant’s witnesses the treasurer offered 1 o prove that the portion of the bridge north of the centre thereof, and north of the centre of the Ohio river, was of the value of $750,000. But, on objection by the defendant, the court ruled the offered proof incompetent; which ruling is also assigned for error, as well as the general finding and judgment of the common pleas.
    The court below having found adversely to the treasurer, he moved lor a new trial and for a second trial, which motions were respectively overruled, and judgment of dismissal entered.
    
      Stallo <& Kittredge for plaintiff in error :
    While the provision of the seventh section of the charter of the bridge company is in the nature of a contract between the State and the corporation, it is a contract, not to fix the rate or mode of taxation to which the corporation should be liable, but to determine what should be the subject matter of taxation, and its true value in money for that purpose. In this view of it there is nothing in this pro vision of the charter inconsistent with the subsequent pro* visions of the constitution and the tax laws.
    In .the absence of any express provision of the constitution, or of the laws passed under it, repealing this special provision of the charter, it cannot be deemed to be repealed by implication by the use of general language. The State ex rel Fosdick v. Mayor, &c. 14 Ohio St. 472 ; Williams v. Pritchard, 4 D. & E. 2.
    The legislature have never intended or attempted to repeal section seven of the charter of the bridge company.
    The proof offered to show the value of the portion of the bridge north of its centre, and north of the centre of the Ohio river, was competent.
    
      W S. Scarborough, also for plaintiff in error,
    argued the question whether the middle of the channel at low-water mark on the north side of the river Ohio is the southern boundary of the State, — a question not reached in the decision of the case.
    
      Hoadley <& Johnson for defendant in error :
    1. Article 12, section 2, of the constitution of 1851, (S. & C. 49, 50), and the laws passed in pursuance thereof, are an offer by the State to every corporation entitled to exemption, or special mode of taxation, under previous legislation, to substitute the “ uniform rulé' of the constitution for such privilege, and, if accepted by the corporation, both parties to the prior contract are released therefrom, and no tax can thereafter be imposed on the property of such corporation, except in pursuance of such uniform rule.
    The acts in force when the tax in question was levied, are as follows : S. & C. 1439 ; sec. 1; lb. 762 ; sec. 3, clause 9 ; lb. 1446, sec. 16.
    2. The proof shows a complete waiver of the contract, as to taxation, contained in the seventh clause of the charter, of the bridge company, by the auditor and treasurer of Hamilton County having, for a series of years, at least since 1859, listed the property of the company for taxation, and required payment of taxes, and acquiescence and compliance on the part of the company.
    3. The president of the company offered to return its property, for taxation under the general law. The auditor rejected the offered return, on the assumed existence and continuing obligation of the contract contained in the char ter of the company.
    No question is raised as to the power of the president to make the returns.
    The company has, in a binding and conclusive manner •evidenced its acceptance of the rule of taxation established by the constitution of 1851.
    No question can now be raised, whether the return the president offered to make was sufficient or not. He made the offer ; that was enough.
    The incorrectness of the return, if proved, only authorized the property of the corporation “ to be valued and assessed,” (secs. 16 and 34, S. & C. 1446, 1452,) but did not authorize the auditor to list one half the capital stock.
    The capital stock was not the property of the corporation, but of its shareholders. Coe v. C. P. & I. R. R. Co. 10 Ohio St. 372.
    4. The return was sufficient. The valuation by the president was ample.
    
      Ceo. H. Pendleton also for defendant in error :
    1. The seventh paragraph of the charter of the bridge company, creates a contract between the State and the company, that the company shall be exempt from taxation until it commences to take tolls, and shall afterward be subject to taxation upon one half of its capital stock.
    Sections 10 and 60 of the act of March 2, 1846 (44 O. L. SO), in force when this charter was enacted, establish two propositions : (1). That it was the policy of the State, at the time this charter was granted, to exempt such companies as were intended to subserve the convenience or interest of the public, from taxation altogether, or for a specified time, or to prescribe for them a special rule of taxation. (2). That this charter did exempt this company from taxation until it commenced to take tolls.
    Acts in pari materia are to be considered in ascertaining the intention of the law-makers, and the meaning of laws. Pope v. Utica Insurance Co. 15 Johns. 356; Dresser v. Boone, 6 Barb. 429 ; Rogers v. Bradshaw, 20 Johns. 735 ; McCarty v. Orphan Asylum, 9 Cow. 437 ; Rexford v. Knight, 15 Barb. 627.
    Whether the acts are repealed or not, specially referred to : 1 Kent’s Com. 463 ; 9 Barb. 161.
    General system of legislation may be referred to in order to interpret particular statutes. Foote v. Burgh, 6 Barb. 60, 75.
    2. The constitution of 1851, (art. 12, sec. 2 ; art. 13, sec. 4,) ordains that the policy of the State shall be changed— that all special rules of taxation shall be superseded by one uniform rule.
    The law of 1852, passed in pursuance of this command of the constitution, provides a general, a uniform rule of taxation for all bridge companies then existing or thereafter created; and declares that this rule, if assented to by those companies which were taxed by special rules, shall be in lieu of all such special rules. (50 O. L. p. 135, sec. 1, p. 138, sec. 3, p. 145, sec. 21; S. & C. p. 1438, sec. 1, p. 1441, sec. 3, p. 1446, sec. 16,)
    If the charter prescribed only a rule of taxation or valuation, the law of 1852 changed that rule.
    If the charter contained a contract between the company and the State, as to the mode of taxation, then the constitution and the law of 1852 constituted an offer on the part of the State to abandon the contract, and it only needed an acceptance, on the part of the company, of this offer, to annul the contract and subject the company to the uniform rule of the general law.
    The assent of the company is shown by the fact that it paid taxes under the general law from the moment it acquired taxable property in 1856.
    
      3. The court properly excluded the testimony as to the value of the bridge to the middle of the river.
    If the value the property was returned at, was too small the auditor should have corrected it.
    The object of the statute (sec. 38, S. & C. 1454) is to enforce the collection of taxes assessed by the auditor. The court has no power to revise the assessment.
   West, J.

Several matters are assigned for error on the record, of which those deemed material to be considered, are the following:

1. The ruling of the common pleas against the admission of evidence tendered by the plaintiff.

2. The overruling of plaintiff’s motion for a new trial.

3. The entering of judgment adverse to the application.

I. In the view entertained by the court, the ruling of the common pleas against the admission of evidence tendered by the plaintiff to prove the value of one half, or any portion of the defendant’s bridge, was not material. The issue sought to be established by it was not involved.

II. On the authority of The State Bank of Ohio v. Knoop (16 Howard (U. S.) 369) the seventh clause of the act of March 9, 1849, “ to confirm the charter of the Covington and Cincinnati Bridge Company” &c. (47 O. L. L. 269) which required that “ one-half the capital stock of the company actually paid in, shall, as soon as the company commences taking tolls, be placed upon the duplicate of the treasurer of Hamilton county, for taxation for all purposes,” must’ be held to have constituted a contract between the State of Ohio and the bridge company, prescribing a special rule of taxation, in a qualified sense, which could not be abandoned or modified without the concurrence of the contracting parties.

No special rate is limited by the clausé, nor is any fixed or ascertainable sum reserved as a royalty. The act does not require the levy or payment of any rate or sum as, or in lieu of, taxes. It determines and defines what shall constitute the subject of taxable valuation in all cases of assessments against the company, but leaves the rate and amount thereof, and the mode of levying the same, and of enforcing ita payment, to the unlimited discretion of general and ever varying legislation.

It is probable that the clause had its origin in the general policy of taxation then prevailing in the State. The inequality of special rates, and the justice of taxation according to money values, had been recently recognized in the general legislation of 1846. True, the processes for attaining accuracy were not perfected, and equality could only be approximated ; but the theory was established, and has since been carried into the constitution of 1851, and the legislation had under it.

The general tax law of 1846, (44 O. L. 85,) in force when the defendant’s charter was granted,’ provided, in its first section, “that all property, whether real or personal, within this State, and the moneys and credits of persons residing therein, * * * shall be subject to taxation ; and such property, moneys and credits, or the value thereof, shall be entered on the lists of taxable property for that purpose, in the manner prescribed by this act.” In the tenth section it is enacted “ that each and every * * * bridge company in this State * * # shall list for taxation, by its president, secretary, or other proper accounting officer, the full amount of the capital stock of said company paid in by individual stockholders, at the true value of said stoc7c in money; and said stock so listed shall be subject to taxation, as provided in this act.”

If the defendant’s charter had been silent in regard to taxation, the “ full amount” of its capital stock would have been subject to the provisions of this general law. But a sense of the injustice that would be wrought by asserting an unlimited power of taxation over the full amount of the taxable interest in a great inter-state improvement, partly within the jurisdiction of two sovereignties, and equally depending for its existence on the co-operation of both, doubtless induced the legislature to concede and guarantee the exemption of one-half thereof from the power of Ohio taxation. But instead of employing negative words, the guaranty assumed the form of au affirmative compact, subordinating one-half to the authority of general legislation, and exempting the other by the rule of expressio unius ex-clusio alierius. Such is clearly the origin, import and effect of the seventh clause of the defendant’s charter.

The rule of uniformity in making assessments on the subjects of taxable valuation, as required by the statute of 1846, is enjoined by the constitution of 1851, and preserved in the general legislation under it. If, then, the charter compact has not been surrendered by the contracting parties, and the subject of taxable valuation continues as guaranteed therein, the condition of the company is not different, under the operation of existing laws, from what it was originally.

III. That the compact may be surrendered by the concurrence of the contracting parties, and the bridge company submit its property, without restriction, to the general powers of tax legislation, we think is clear. It is equally obvious that the existing laws constitute an offer on the part of the State to accede to such surrender and abandonment. Had the bridge company indicated its acceptance of the-offer, and its assent to the substitution of the existing statutory subject of taxable valuation, in such authoritative manner as to make it available in its defense to this proceeding ? In its answer this is averred. By the reply it is denied. The affirmative of the proposition is with the company.

The production of sundry receipts for taxes paid by the company, on several parcels of real estate in Cincinnati, is insufficient to establish such acceptance.

The general tax law of 1852, (2 S. & C. 1439,) in its first sections, enacts that “ all property, whether real or personal, in this State; all moneys, credits, investments in bonds, stock, joint-stock companies, or otherwise, of persons residing therein; the property of corporations now existing, or hereafter created, * * * shall be subject to taxation;' and such property, * * * or the value thereof, shall be entered on the lists of taxable property for that purpose, in the manner prescribed by this act.” This is, in effect, and almost literally, a transcript of .the first section of the act of 1846.

The sixteenth section enacts that “ the president, secretary or principal accounting officer of every # * * bridge company * * * shall list for taxation, verified by the oath or affirmation of the person so listing, all the personal property, which shall be held to include * * * such realty as may be. necessary for its *' * * operation,” &c. * * * moneys and credits of such company or corporation in this State, at the actual value in money, in the manner following : in all cases return shall be made to the several auditors of the respective counties where such property is situated. * * * It shall be the duty of the accounting officer aforesaid to make return to the auditor of State, in the month of May of each year, of the aggregate amount of all property returned by him, as required by the provisions of this act, to the several auditors,” &c. It also provides that all property so listedshall be subject to and pay the same taxes as other property listed in the ward, city or incorporated village or township.” This section modifies, and is substituted for section ten in the act of 1846.

The compact in the defendant’s charter was an agreement between it and the State, as to what should constitute its personal property ” subject to taxation; and the general law of 1846 prescribed the mode of listing it for that purpose. The mode of listing, prescribed by the act of 1852, by its own vigor, substituted that of 1852 ; but not the subject property to be listed. This, without the concurrence of the defendant, is determined by the charter compact.

Prior to 1867, the defendant had not, by act or resolution, indicated a purpose to abandon the stipulations of its charter, and accept the provisions of existing legislation. It neither made nor offered to make a return as therein required. It listed no “ personal property,” either including or excluding “ realty, moneys and credits.”

The payment of taxes on sundry parcels of realty suffered to remain on the duplicate after their purchase, was neither in substance nor form a compliance with, nor an acceptance of, the general law. They were neither listed nor assessed under the law, as the property of a bridge company ; and it is doubtful whether, for this irregularity, the collection of the taxes could have, been enforced, or a sale for delinquency would have vested title. The payment was, therefore, voluntary, while the omission to make return under the law, well comported with the right and purpose to assert, in future, the rule of the compact.

The defendant claimed to be aided by the ninth clause of section three. It enacts that “ the taxes upon banks, banking companies, and all other joint stock companies, or corparations, of whatever kind, levied and collected in pursuance of the provisions of this act, shall be in lieu of any taxes which such bank, or banking company, or other joint stock company, or corporation, was, by former lazos, re- guired to pay.”

This provision is restricted, in its application, to corporations in whose charter has been reserved some special rate or royalty, as in the sixtieth section of the act incoporating the State Bank of Ohio. To give it any broader application is not demanded, for taxes imposed by repealable laws are always subject to the power of general legislation.

No i-ate was prescribed, nor royalty reserved, nor tax in any form required, by the charter of the defendant. In the manner and to the extent that the property of individuals was, so the one-half of the defendant’s capital stock was subject to taxation under the repealable law of 1846. If the ninth clause of section three, in the existing law, by which that of 1846 is repealed, be necessary to relieve the defendant from the operation of the latter, it is difficult to perceive why some similar legislation is not necessary to the like protection of individuals.

But the provisions of section three are unnecessary for and inapplicable to either. No statute, existing or former, required the assessment against or the payment by defendant of any tax other than the one in controversy. This was assessed by and under the existing law, of which section three is part. There is, therefore, no former law against the requirements of which the defendant can be relieved by its provisions. It cannot then aid the defendant.

It is insisted, however, that, if the continued payment of taxes in the manner shown does not establish a surrender of the charter compact, and an acceptance, b}' the defendant, of the existing general laAv, the offer of its president, on the 14th of May, 1867, to make return in accordance with that law constituted such surrender and acceptance.

It is a reasonable and salutary limitation on the powers of corporation officers, that does not permit them to sui’render, abandon, or barter aAvay the franchises they are delegated to exercise and protect. This limitation is founded in a just and wise public policy.

The seventh clause of the defendant’s charter is a corporate-franchise. Its surrender, and the substitution of the statutory subject of taxation, by the president of the bridge-company, was not within the scope of his presidential functions, without its presumed authorization or subsequent ratification by the company.

Such authorization is not shown. No previous act or resolution of the corporation or its directory is exhibited, from which it can be inferred. So far as the record discloses, nothing done or declared by the company estopped it from asserting the franchise ; no authorization of, or direction to, the president tended to place it in a position to be concluded by his acts. His offer to make return, under the general laAV, was voluntary. The auditor was, therefore, not bound to accept and act upon it as authoritative.

Nor could any subsequent recognition of an unauthorized offer by the president, not accepted nor acted upon by the-officer of the revenue, render it effectual as a surrender and acceptance by the company, as of a date anterior to its approval. In the nature of things, a proposition not accepted nor carried into effect, is incapable of effectual ratification. It would be the legal confirmation of a nonentity.

If the officer had received the president’s return, and an official assessment, made or entered thereon, had been confirmed by subsequent payment, the surrender of the franchise,. and the acceptance of the general law by the company, might well be presumed therefrom. It would be charged with notice of the official transaction, done in pursuance of law, by a public officer. But the evidence discloses nothing occurring prior to the filing of the answer herein, from which any connection of the corporation, either by previous authorization or subsequent approval, with the president’s offer to surrender the franchise, or his tender of the tax claimed, to be due under the general law, is presumptively shown. No public record of an assessment, in accordance with the rejected return, existed ; no payment on account of such public assessment was made; no previous authorization or subsequent affirmance, or evidence of sanction by the corporation, is exhibited, except the fact of pleading the president’s acts, in the defence of this proceeding.

This sanction, first disclosed in a judicial proceeding, and, for ought that appears, existing now for the first time, cannot have relation back to vitiate the ground of the proceeding originally valid and legal.

In the absence of an authorization b'y the company to its president, the auditor was not bound to act upon his proffered surrender of the corporate franchise. It was his clear right, therefore, to make the assessment on the basis of the compact, and, when made, it could not, after its delivery to the treasurer, be legally avoided by the company.

It is true, the auditor might and probably should have received the return, increasing the amount, if not satisfied therewith, to include the value of one-half the company’s bridge. Thus would have been raised the great jurisdictional question, so ably presented in argument, but which the view entertained by the court renders it' unnecessary to consider, whether the several limitations engrafted upon defendant’s charter, are not conditions of its grant. Whether the State did not confer, and the company accept, its franchise, upon the condition that it would not assert any right, power or liberty under its charter incompatible with these limitations; and whether it is not estopped, by the clear implication of the sixth clause, from denying the jurisdiction and sovereignty of Ohio to the centre of its bridge, are grave inquiries, upon which the court is not now required to pass. Nor are we called upon to consider the effect of the president’s assertion, accompanying his offer to make return under the existing statute, that no portion of the defendant’s bridge, other than that situated north of the line of low water in the Ohio river, was subject to taxatioii in Ohio.

The compact in the seventh clause of the company’s charter not having been authoritatively waived or surrendered by it, the ássessment made by the auditor of Hamilton county, after the company commenced taking tolls, on one-half its capital stock actually paid in, was valid.

The judgment of the common pleas is, therefore, reversed, and the cause remanded for further proceedings.

Welch, C. J., and White, Dav and McIlvaine, JJ., concurred.  