
    Work, Agent of the State of North Carolina, v. Corrington and another.
    1. If the governor of one state make a requisition on the governor of another state for the surrender of a fugitive from justice, and the case is-shown to be within the provisions of the constitution of the United States and the act of Congress on the subject, no discretion is vested in the latter governor, but it is his imperative duty to issue his warrant of extradition.
    2. If a warrant for the surrender of a fugitive from justice is obtained in a case in which it should not have been issued, the governor may revoke-it, whether issued by himself or his predecessor.
    3. Where such warrant has been revoked by the governor, no inquiry will be made, in a proceeding on habeas corpus on behalf of the alleged, fugitive, as to the grounds of such revocation, although, at the time of the revocation, the fugitive may have been in custody of the agent of the demanding state.
    
      Error to the Court of Common Pleas of Hamilton county.
    John R. Corrington was indicted in the Superior Court of Craven county, North Carolina, at the spring term,. 1876, for embezzling eighty-five dollars, on September 1,, 1875, the m'oneys of J. & J. Johnson, at the county aforesaid.
    Prank A. Ammons was also indicted at the same term,, for embezzling fifty-five dollars, moneys of the same firm,, on the same day, at the same county.
    On October 5, 1876, Curtis H. Brogden, governor of' North Carolina, made requisitions, in due form, upon R.. B. Hayes, governor of Ohio, for the rendition of Corrington and Ammons as fugitives from justice. The requisitions contained the statement that embezzlement is a crime' against the laws of North Carolina; and they were accompanied by copies of the indictments, and by affidavits-showing that the crimes were committed in North Carolina, and that the defendants had fled from that state to-escape justice, and taken refuge in Ohio.
    Governor Hayes issued his warrants, directed to the sheriff of "Warren county, for the arrest of Corrington and. Ammons, and their rendition, in pursuance of the act of 1875 (72 Ohio L. 79). That act is as follows:
    “An Act to regulate the practice of the delivery of fugitives from justice-when demanded hy another state or territory. Passed March 23, 1875.. (72 Ohio L. 79.)
    “ Section 1. Be it enacted, etc., That whenever the executive authority of any other state or territory of the-United States shall demand any person found in this state-as a fugitive from such state or territory, and shall moreover produce with such demand the copy of the indictment found, or affidavit made before a magistrate of the state or territory demanding, charging the person so demanded with having committed treason, felony, or other crime within such state or territory, duly certified as au~ thentic by the governor or chief magistrate of the state or -territory from whence the person so charged fled, it shall be the duty of the governor to issue an order or wammt to the sheriff' of the county in which such person so charged may be found, commanding him to forthwith arrest and bring such person before any judge of the supreme court, ■or any judge of the court of common pleas of this state in whose district or jurisdiction such person so charged may ‘be found, to be examined on said charge.
    “ Sec. 2. Upon the return of said order or warrant by •the sheriff with the person so charged in custody, it shall 'be the duty of the judge before whom the person so arrested is brought, and order or warrant is returned, to proveed to .hear and examine such charge, and upon the proof ■made in said examination by him adjudged sufficient, to ■commit such persou to the jail of the county in which said ■examination is so had, for a reasonable time, to be fixed by the judge, and thereupon to cause notice to be given to the ■executive authority making such demand, or to the duly .authorized agent of such executive authority appointed to receive the fugitive, and on payment of all costs such fugitive shall be delivered to the authorized agent of the state ■or territory demanding his surrender, to be thence removed "to the proper place for prosecution.
    “Sec. 3. If no such agent shall appear within such reasonable time so fixed by the judge, and pay all costs and receive the person so committed to be surrendered up to the state or territory demanding, it shall be the du.ty.of the sheriff to discharge the person so imprisoned.”
    On February 22, 1877, Corrington and Ammons, having been arrested by the sheriff of Warren county, were taken before Hon. A. W. Doan, one of the judges of the second judicial district, in Clinton county, who made inquiry pursuant to the above act. In the order in the case of Corrington, the proceedings above referred to are recited, and the judge finds that the person arrested is the identical Corrington mentioned in the indictment and the requisition, and that he is a fugitive from justice from North ■Carolina; and it was ordered that he should be confined in the jail of Clinton county for a period not exceeding •twenty days, and until Work, the person, designated by the governor of North Carolina as the agent of that state, .should come to the county of Clinton and demand the fugitive ; that upon such demand, within the period named, and the payment of costs, the keeper of the jail should •deliver the fugitive to Work; that the clerk should notify Work of the order of the court; and that upon failure to ■demand the fugitive within twenty days, he should be discharged.
    The proceedings in the case of Ammons were precisely • similar.
    On March 5, 1877, Corrington and Ammons were delivered to Work, in pursuance of the foregoing proceedings. On the same day a writ of habeas corpus was issued from the Court of Common Pleas of Hamilton county, requiring Work, who was sued as John Doe, to produce Corrington and Ammons before a judge of that court. To this writ, Work made separate return as to the defendants, setting forth at large the proceedings under which they were '¿held.
    On March 10,1877, Governor Thomas L. Young, successor of Governor Hayes, made and issued an order to supersede the warrants so issued by Governor Hayes. The order, omitting formalparts, was, in substance, as follows :
    On consideration, and adopting and following the rule prescribed in the joint resolution of the general assembly, adopted March 25,1870 (67 Ohio Jj. 171), as the proper interpretation of the constitution of the United States and -the laws in that behalf, the governor is of opinion that the warrants heretofore issued in this matter were unadvisedly issued, and that the same should be revoked, it appearing that the persons named (Corrington and Ammons) are still within the jurisdiction of the state. It is therefore ordered by the governor that each of said warrants, and the •order granting them, be and the same are hereby revoked and canceled.
    
      The resolution referred to in the order is as follows:
    “ Joint resolution, relative to the surrender of persons charged with treason, felony, or other crimes. (67 Ohio L. 171.)
    “ Whereas, The clause in the constitution of the United States, requiring the surrender of a person charged in any state with treason, felony, or other crime, who shall flee from justice and be found in another state, was intended to subserve only great public interests, and not to apply to trivial offenses, or to be made subservient to private interests, by being used to enforce the collection of debts, ór to-remove a citizen of any state into a foreign jurisdiction,, that he might there be served with civil process; and
    “ Whereas, Great abuses have recently been perpetrated in this regard against citizens of this state; and
    “ Whereas, By the practice of all the states, a discretion has been recognized as proper to be exercised by the executive authority of each state, both as to the cases in which a requisition shall be made for the surrender of an alleged fugitive, and as to those in which the demand shall be granted, and it is proper that this discretion should, as far as possible, be limited and defined; therefore,
    “ Resolved by the y General Assembly of the State of Ohio, That the executive authority of this state, in its action under said clause of the constitution of the United States, should, in the opinion of the general assembly, be governed by the following rule, both in making requisitions on other states, and in allowing requisitions made by other states on this state, namely: No requisition should be made or allowed for an alleged fugitive, unless the governor be clearly satisfied that the requisition is sought or made in good faith, for the punishment of an offense within the proper-meaning of the said clause of the constitution, and that it is not sought or made for the purpose of collecting any debt or pecuniary mulct, or for the purpose of removing the alleged fugitive to a foreign jurisdiction, with a view there to serve him with civil process.”
    On March 13, 1877, the case on habeas corpus was heard "before Hon. N. Longworth, one of the judges of the Court of Common Pleas of Hamilton county. The revocation of the warrants was offered in evidence. Work moved to ■quash the writ of habeas corpus, but the motion was overruled, and he excepted; and thereupon Judge Longworth held that Corrington and Ammons were illegally restrained of their liberty, and he discharged them from custody. Work now prosecutes a petition in error to reverse the judgment, and relies on the following errors:
    1. The returns of Work to the writ were sufficient in law.
    2. Governor Young had no power to revoke .the warrants issued by Governor Hayes.
    
      H. M. Moos and J. M. Pattison, for plaintiff' in error:
    Const, of H. S. art. 4, § 2; Act of 1798, 1 U. S. Stat. at Large, 302 ; Rev. Stats. U. S. § 5278; 67 Ohio L. 171; 72 Ghio L. 79; Houston v. Moore, 5 Wheat. 1, 21, 22; Prigg v. Com. of Penn., 16 Peters, 541; Com. of Ky. v. Dennison, 24 Howard (U. S.), 66; Sturgis v. Crowningshield, 4 Wheat. 122, 193 ; Moore v. The People, 14 Howard (U. S.), 13 ; Ex parte Bushnell, 9 Ohio St. 77; Dwarris (by Potter) ■on Constr. of Stats. 364; 2 Story on the Const. 429. Erom these authorities, counsel for plaintiff in error ar.gued at length that the Ohio legislation, set forth in the .statement of the case, is in conflict with the above-mentioned section of the constitution of the United States, and therefore void; that the duty of the governor to issue the warrant of extradition, on the production of the requisition, is ministerial and imperative; that he is vested with no discretion whatever; that he has no power of revocation, especially after the fugitive is delivered to the agent •of the demanding state; that a governor can not revoke a warrant issued by his predecessor; and that the agent of North Carolina held the fugitives by ample authority, and the court below erred in discharging them.
    
      
      John Little, Attorney-General, for defendants in error :
    The power of revoking warrants is exercised in all the-states. Governor Chase, on full argument, held he had the* right, and exercised it. Governors are frequently imposed upon, and find it out after the warrants are issued. In one-case within my own knowledge, the governor of Missouri,, after a warrant had been issued by the governor of this-state, requested that the warrant be revoked, and it was-done. Governor Hayes kept track of twelve eases,-wherein he had issued warrants on charges of getting money by false pretenses, and in eleven the parties were not brought to trial at all, and in the twelfth there was an acquittal. They were prosecutions merely to collect debts. His investigations brought about the joint resolution of 1870, which was adopted at his instance. The President of the United States, under extradition treaties, exercises asimilarpower of revocation, as in the Lawrence case. The attorney-general commented on the constitutional provision, legislation, and authorities relied on or cited by counsel for-plaintiff in error; and he cited the opinion of Attorney-General Henry Stanbery to Governor Bebb, MS. Opinions,, vol. 1, p. 38. In that opinion, Mr. Stanbery said: “ I am aware of a practice ... to use these requisitions for individual purposes, and to coerce the payment of debts, by extending them to persons who have never been within the territorial jurisdiction of (the demanding'state) by a fiction of constructive presence and constructive flight from justice. In such eases, it is the duty, as I conceive, of the-executive upon whom the requisition is made, to refuse to* surrender the citizen.” He also cited the following additional authorities : Com. v. Tracey, 5 Met. 536; Robinson v. Flanders, 29 Ind. 10; Matter of Manchester, 5 Cal. 237; Com. v. Hall, 9 Gray, 262 ; State v. Buzine, 4 Harr. (Del.) 572; Nichols v. Cornelius, 7 Ind. 611; Ex parte Pfitzer, 28 Ind. 440; In re Clark, 9 Wend. 212; Matter of Voorhees, 32 N. J. (L.) 141; In re Troutman, 24 N. J. (L.) 634; Johnston v. Riley, 13 Ga. 97 ; Vallad v. Sheriff, 2 Mo. 26 ; Story on Const. §§ 326,438,441; Gibbons v. Ogden, 9 Wheat. 197; 
      Ex parte Smith, 8 McLean, 121; In re Fetter, 23 N. J. 311 ; In re Greenough, 31 Vt. 279; 1 Am. L. Reg. 529.
    
      Hildebrant j- Bruner, also for defendants in error, cited r
    
      The State v. Sehlemm, 4 Harr. (Del.) 577; Hurd on Hah Cor. 641; Marey v. The State, 44 Texas, 64; Matter of Hughes, Phill. (N. C. L.) 57 ; S. & C. 681; Ex-parte Collier, 6 Ohio St. 55; Ex parte Shaw, 7 Ohio St. 91; Hueston v.. Moore, 12 Wend. 311; 5 Wheat. 1, 21; 14 Peters, 540.
    
    
      
       The Court is indebted to Mr. Amos Layman, executive clerk during the official term of Governor Allen, for a full abstract of the records in the executive department, showing the revocation of warrants of extradition by the governors of this state, from 1856 to the present time.
    
   Okey, J.

We agree with counsel for the plaintiff in error, that the question in this case is of general, and not merely local, importance. It involves the power of a governor to revolee a warrant of extradition of a fugitive from justice, issued on the requisition of a governor of another state. We are not aware that the question has been presented in the courts of the United States, or in the court of last resort of any state. That it is not free from difficulty is conceded.

The constitution of the United States provides, that “ a person charged, in any state, with treason, felony, or other crime, 'who shall flee from justice and be found in another state, shall, on demand of the executive authority of the state from which he fled, be delivered up, to be removed to the state having jurisdiction of the crime.” (Art. 4, § 2.) To secure uniformity in practice under this provision, Congress, in 1793, passed an act (1 Statutes at Large, 302), which has been slightly changed in phraseology, and is as follows : “ Whenever the executive authority of any state or territory demands any person as a fugitive from justice, of the executive authority of any state or territory to which such person has fled, and produces a copy of an indictment found, or an affidavit made before a magistrate of any state or territory, charging the person demanded with having committed treason, felony, or other crime, certified as authentic by the governor or chief magistrate of the state or territory from which the person so charged has fled, it shall be the duty of the executive authority of the state or territory to which said person has fled, to cause him to be arrested and secured, and to cause notice of the arrest to be given to the executive authority making such demand, or to the agent of such authority appointed to receive the fugitive, and to cause the fugitive to be delivered to such agent, when he shall appear. If no such agent appears within six months of the time of the arrest, the prisoner may be discharged. All costs or expenses incurred in the apprehending, securing, and transmitting such fugitive to the state or territory making such demand, shall be paid by such state or territory.” (U. S. Rev. Stat. § 5278.)

The history of the constitutional provision has been so well presented in Hurd on Hab. Cor. (2d ed.) 598-637; Com. of Ky. v. Dennison, 24 Howard (U. S.), 66; Brown’s case, 112 Mass. 409, and other authorities cited during the argument, that any re-statement of it is perhaps unnecessary. The provision was in the articles of confederation, in substantially the same form, and hence it has bean in force a century. It has received the careful consideration of the ablest lawyers in the country, and many questions arising under it may be regarded as settled. No member of this court doubts that when a case intended to be provided for is presented in regular form, the governor on whom the requisition is made has no discretion. It is clearly his duty to issue the warrant of extradition ; that duty, however, being one of imperfect obligation. The guilt or innocence of the accused can not be tried by him; and, where a crime is actually charged, formal defects as to the manner in which it is stated ought not to be regarded. Nor is it material whether the offense charged is punishable in the state upon which the demand is made; the question is, whether it is punishable as a crime in the demanding state. Com. of Ky. v. Dennison, supra ; Davis’ case, 122 Mass. 324.

But it is a mistake to say that, in determining whether & case contemplated in the provision is presented, the governor upon whom the demand is made is vested with no ■discretion. Under the articles of confederation it was essential that the demand be made on the governor, although this was not expressly so stated; “and it is plain that the mode of the demand and the official authority by and to whom it was addressed, under the confederation, must have been in the minds of the members of the convention when this article was introduced, and that in adopting the same words they manifestly intended to sanction the mode of proceeding practiced under the confederation ; that is, of demanding the fugitive from the executive authority, and making it his duty to cause him to be delivered up.” Com. of Ky. v. Dennison. And this duty is not •devolved merely on the person who may at the time be governor. “ In such cases the governor acts in his official ■character, and represents the sovereignty of the state.” Taylor v. Taintor, 16 Wallace, 366-370. Moreover, it is -unreasonable to suppose that the framers of the constitution did not foresee, when they vested this necessary but -dangerous power in the chief magistrate of a state, that occasion would arise, in the discharge of such duty, for the •exercise of judgment and discretion. In Taylor v. Taintor it is .stated that he is vested with discretion to withhold the warrant, where the fugitive is charged with the commission of crime in the state to which he has fled. Is his discretion limited to that instance ?

Courts have discharged the fugitive on habeas corpus, notwithstanding he was in custody under the warrant of ■extradition, where the offense charged was not a crime, or not punishable by indictment in the demanding state, or was-not triable there as of right by a jury ; where the accused had never been, in person, within the demanding state; or where the papers upon which the application was made were forgeries, or plainly insufficient in matter of sub■stance. The People v. Brady, 56 N. Y. 182. If the courts may rightly discharge in such cases, it is manifest the governor may, for the same causes, withhold his warrant; and if he may withhold his warrant, it seems reasonable that he-should have the power to revoke it on the same grounds. Why should he not have such power ? More than one hundred and fifty judges in this state have the unquestioned authority to discharge where the proceeding is plainly invalid by reason of defects in matter of substance; and I am unable to see why the governor, w7ho grants and issues-the process, should have less power over it. The tribunal, which has exclusive jurisdiction to grant and issue process, has, ordinarily, the power to quash or supersede it, when the fact that it is invalid, or was improperly obtained, is-made to appear; and there is no reason for holding that this process is an exception to the rule.

We are further to inquire whether the discretion and power of the governor are limited to cases in which defects-of the character above mentioned are found to exist. And it seems to me they are not. The provision was inserted in the articles of confederation, and subsequently in the-constitution, to subserve public, and not private purposes. The object was to secure the punishment of public offenders, and not to enforce the payment of private claims,, whether well or ill founded. To employ this extraordinary process for public purposes tends to secure peace and good order; but to prostitute it to the advancement of private-ends is to bring it into great disfavor. True, the theory is-that the demanding state will hold the offender for trial, even though he be brought into the state fraudulently, or forcibly, and without process; but experience shows that where the end sought is private, the accused is rarely brought to trial. No satisfactory reason is perceived why a governor should issue or obey a requisition where he is satisfied that the sole object of the party complaining is to enforce the payment of a private claim for money. Such an abuse of process is equivalent to a fraudulent use of it. Nor is the governor’s power in such case limited to a refusal to act. Judgments the most solemn may be-impeached for fraud. Service of process in any civil matter, obtained by fraudulent contrivance or means, will be set aside on motion, whatever the process may be. Pardons obtained by fraud are held to be void. Eor reasons equally strong, a governor from whom such warrant is obtained for the advancement of private ends, fails to discharge his duty if he neglects to revoke the process on discovering the fraud. No doubt the framers of the constitution intended to invest him with that power ; and the reason for its exercise, in a case of that sort, is far greater than where the defect, however great, is in the requisition or other documents. Still, where money has been embezzled, or obtained by false pretenses, the offender is not likely to be brought to justice unless the injured party prosecutes;. and steps to obtain a restoration of the money are not 'incompatible with measures to secure the conviction of the-fugitive. The duty of the governor, in cases of that class, is, therefore, one of great delicacy ; and all that I have said as to his authority in refusing to issue or obey a requisition,, or in revoking a warrant, has relation to cases where thei-e is no real intention to prosecute criminally, if the money-demand is satisfied.

There is, as we have seen, no decision of the courts of the United States, or the court of last resort in any state, of the question under consideration. In the absence of such decision, we are warranted, by reason and authority, in looking to the practical construction which the constitutional provision has received in the executive department. We find that men who have occupied the highest positions in the state and federal governments have expressed, strong opinions on the subject. Attorn ey-Gen eral Henry Stanbery, in an opinion to Governor Bebb, referred to by counsel for defendants in error, insists that a govern or may,, under some circumstances, withhold the warrant. In an opinion of the chief executive of Maine (Governor Pair-child), in 6 Am. Jurist, 223, he said : There is “ no question, in my mind, as to the power to recall the warrant: which has been issued in this case.” In the matter of Adams, 7 Law Reporter, 386, it appears that Governor Thomas W. Bartley revoked the warrant which he had issued for one ■charged with obtaining money by false pretenses. On July 6, 1857, Governor Salmon P. Chase revoked a warrant he had issued on the requisition of the governor of Illinois ; and this was done, it appears, after full argument by learned counsel. In one case, Governor John Brough ■stated on the record, as a reason for the revocation, that •“ soon after the issuing of the warrant, information was ■received that this requisition had been obtained for an ulterior object.” In another case, Governor J. B. Cox, in revoking a warrant, says it was done “ on affidavits showing that the complainant'in the case is unworthy of belief, and that the affidavits on which the requisition was issued were made under an assumed name.” Without multiplying instances, it appears from the abstract of the records in the executive department, and the case in 7 Law Reporter, ■386, that Governors Thomas W. Bartley, S. P. Chase, John Brough, J. D. Cox, R. B. Hayes, William Allen, and ’Thomas L. Young, each, in one form or another, revoked a warrant of extradition, and some of them exercised that .authority repeatedly; and it is well known that other governors of this and other states have often exercised, the same power.

If we should hold that the governor has no power of revocation where the objection only goes to the sufficiency o± the papers, in matter of form, or the motives of the party ■complaining, the same result would follow. We have seen in Taylor v. Taintor, supra, that the governor has the authority to withhold the warrant where the fugitive is in •custody, charged with the commission of crime in the state where he has taken refuge ; it can not be doubted that he should also withhold it where it is made to appear that the requisition is a forgery; nor can any serious question be made, if, in either of these cases, the warrant has inadvertently been issued, about his right to revoke the process. As the governor had power to revoke them for some causes, the court below properly held that no inquiry could be made on habeas corpus as to the particular ground upon which these warrants were revoked. Indeed, while the-courts will discharge a fugitive on habeas corpus, where the-proceedings in his case are void, neither the general nor-state government will. otherwise interfere with the Governor in the discharge of his duty, or failure to discharge it, in cases of this sort. Com. of Ky. v. Dennison; Taylor v. Taintor; State of Mississippi v. Johnson, 4 Wall. 475 High on Ex. Rem. § 120. The State ex rel. v. Chase, 5 Ohio St. 528, in no way militates against these authorities, for the doctrine was fully recognized in that case, that where the governor is vested with a discretion, his action can not be controlled by mandamus. In any view, therefore, the-court below properly discharged the prisoners from custody.

An objection has been made, that while it might be very proper to revoke a warrant before the fugitive is delivered to the agent of the demanding state, yet that when such delivery is actually made, the power of the governor is at an end, and the general government, and the state in which the crime was committed, have acquired rights which can not be taken away. In one case, when Governor Allen exercised the power of revocation, the fugitive was in custody of the agent of the demanding state, though he was-still within our territorial limits, and he was discharged. How it was in this respect in the other cases I have referred to,-does not appear. As we have seen, “the governor acts in his official capacity, and represents the sovereignty'of the state,” and “ if he refuse, there is no means-of compulsion.” Taylor v. Taintor. Exclusive jurisdiction over the subject is vested in him. Taney, C. J., in Com. of Ky. v. Dennison, says, “Jffiere is no power delegated to the general government, either through the judicial department, or any other department, to use coercive-means.” He says, furthermore, that “ such a power would place every state under the control and dominion of the-general government, even in the administration of its internal concerns and reserved rights.” A fortiori, the demanding state can use no coercive power. “In the event of refusal, the state making the demand must submit.. "There is no alternative.” Taylor v. Taintor. If the executive of the demanding state had the authority, through his agent, to remove the fugitive from the state of refuge, in opposition to the will of its executive, he would have the right to send an army to enforce the authority, and no •one is bold enough to claim that this may be done. The fact is, the warrant of extradition is, in substance, a consent to remove the alleged criminal beyond our territorial limits, and there can be no removal without a valid warrant. Botts v. Williams, 17 B. Mon. 687. An independent-.government does not hesitate to arrest the removal of a fugitive at any time before he is taken beyond the nation’s territorial limits, if it be discovered the case is not clearly •within the extradition treaty. In re Windsor, 6 B. & S. (118 E. C. L.), 522; 3 Whart. (C. L.), § 2973. The governor of a state has precisely the same power, if he discovers that the requisition is a forgery, or that the case is one not intended to be provided for in the constitutional provision ; and if he exercises the power cautiously, and only in the cases to which I have referred, or in othei’s of a like character, much may be done to prevent the abuse, without impairing the efficiency of extradition proceedings.

Further objection is made that Governor Young had no authority to revoke a warrant issued by Governor Hayes. But we have seen that the governor acts in his official capacity.” The warrant is not process of the person holding the office of governor, but a warrant issued by an officer. We all agree that Governor Young had the .same power to revoke a warrant issued by his predecessor, that he had to revoke one issued by himself.

Much has been said as to the constitutionality of the legislation set forth in the statement of this case. There is legislation on the general subject in nearly or quite all the states. Reference to much of it, and the decisions relating to it, will be found in 18 Albany L. J. 166. The view taken of this case renders it unnecessary for us to-express any definite opinion on the subject.

If it is true that the views here expressed are in conflict -with, some general expressions in Com. v. Dennison, it is «equally certain that nothing in this opinion will be found in opposition to anything decided in that case. Expressions in-that case can not he reconciled with some things said in Taylor v. Taintor, and yet the decisions are in harmony. Questions of conflict between cases are determined not merely by differences of that sort, but by first ascertaining what may fairly be regarded as decided in each •case.

Judgment affirmed.  