Bohmer v. . Haffen

Parker, Ch. J. The Union Railway Company was formed July 5th, 1892, by consolidation of the Harlem Bridge, Morrisania and Fordham Railway Company (which for convenience we shall hereafter call the Harlem Bridge Company) with the Melrose and West Morrisania and the North Third Avenue and Fleetwood Park Railroad Companies, in pursuance of the authority attempted to be conferred by chapter 340 of the Laws of 1892, which amended chapter 361 of the Laws of 1863, entitled “ An act to authorize the construction of a railway and tracks in the towns of West Farms and Morrisania,” under which the Harlem Bridge Company was organized and its railroad constructed and operated. Immediately after such formation the Union Railway Company changed the motive power of so much of its property as was in actual operation, from horse power to electricity, and began the construction of the roads which the other companies had been incorporated to construct, but had never undertaken, and also the construction of extensions and branches, and so continued for a period of about five years, when this action was commenced. It is in form a taxpayer’s action under chapter *398 301 of the Laws of 1890, and § 1925 of the Code of Civil Procedure, as amended by chapter 524 of the Laws of 1892. The prayer for relief, in effect, demands judgment that certain resolutions of the common council, purporting to grant consents to the defendant company to construct and operate a street surface railroad on certain streets and avenues specified therein, be declared null and void, and that they be canceled of record.; that the commissioner of street improvements of the twenty-third and twenty-fourth wards of the city of blew York be permanently enjoined from issuing any permit or granting any other authority to the defendant railroad company to construct railroad tracks; that the permits heretofore given by such officer be declared null and void; that any property or rights acquired thereunder be restored to the city of blew York, and that the defendant railroad company be permanently enjoined from proceeding or acting in any manner under said alleged consents and resolutions. . While the appellant contends that the defendant company did not obtain the consents required by sections 91 and 92 of the Railroad Law before the right to construct a railroad upon the routes mentioned in the various extensions could accrue, in that not only the consent of the common council, but also that of the commissioner of street improvements in the twenty-third and twenty-fourth wards of the city of blew York was required, his principal contention is that the Union Railway Company had no power to acquire franchises, and, hence, that, the consents given were without effect. It is insisted that chapter 361 of the Laws of 1863 (which was amended by chapter 340 of the Laws of 1892), in pursuance of which this defendant company was created, is unconstitu-. tional, because it embraces more than one subject and confers powers not expressed in the title, and that in any event the act of consolidation did not operate as an amendment to the original act, inasmuch as long before its passage the railroad company formed thereunder had ceased to exist on account of its failure to complete its road within the time prescribed by section 4Y of the General Railroad Law. The act of 1.892 is *399 claimed to be void because it is a private or local bill, and embraces more than the one subject expressed in the title; it grants exclusive franchises, privileges or immunities; it grants the right to lay down railway tracks, and does not require the consent of property owners and local authorities as conditions precedent to construction. It is further urged that the Union Railway Company has no power to construct railroads because the original company was not authorized to consolidate with what the appellant is pleased to term paper corporations, and, therefore, no consolidation has been effected. The respondents say that all necessity for the consideration of these questions was obviated by the admissions in the complaint conceding corporate life in the Union Railway Company ; that the statute purports on its face to confer corporate existence, and also to vest the corporation formed in pursuance of its provisions with certain powers, all of which may lawfully be done by the same statute; that if the statutory attempt to confer powers upon the corporation is of no effect, because the title and subject of the statute are not in agreement, and, hence, unconstitutional, it must follow that the attempt to create a corporation by the same statute also fails; in other words, if one attempt fails, both fail; if either attempt is effectual, both are, and, hence, the admission clearly made, that the corporation was created by the act of 1892, prevents the plaintiff from challenging its constitutionality. ' But we shall refrain from passing upon this question, and also from considering the further contention of the respondents, that the statutes do not confer upon a taxpayer the right to maintain actions of this character, and place our decision upon the broader ground that the enactments in question were within the legislative power. Whether the legislation was wise is not for us to consider. The motives actuating and the inducements held out to the legislature are not the subject of inquiry by the courts, which are bound to assume that the law-making body acted with a desire to promote the public good. Its enactments must stand, provided always that they do not contravene the Constitution, and the test of constitu *400 tionality is always one of power — nothing else. But in applying the test the courts must bear in mind that it is their duty to give the force of law to an act of the legislature whenever it can be fairly so construed and applied as to avoid conflict with the Constitution. The act of 1863 was passed before the prohibition against the granting of exclusive privileges, immunities, franchises, or a right to lay down railroad tracks became incorporated into section eighteen of article three of the Constitution, and the ground upon which it is now attacked is that the act embraces a subject not expressed in the title. It is entitled “ An act to authorize the construction of a railway and tracks in the towns of W est Farms and Morrisania.” The act contains nine sections, the last of which authorizes the corporation to be formed under the act to lay railway tracks at the termination of its road at Fordham to the village of West Farms, from thence to the village of Westchester, and from thence to the village of Mt. Vernon, in the towns of West and East Chester. So while the title of the act authorizes railway construction in the towns of West Farms and Morrisania only, section nine permits construction in the towns of West and East Chester, and as the subject of the legislation was the building of railroads exclusively in the former towns, it follows that only part of it was expressed in the title. When we read all the provisions of the act the thought is suggested that section nine was not a part of the original scheme, and probably not apart of the first draft, for the eight sections preceding it relate to the construction and operation of a railway and tracks in the towns of West Farms and Morrisania. There is no hint in them of construction in the towns of West and East Chester, and section 9 opens with an authorization to “ the corporation formed under this act,” to lay tracks from the termination of its road at Fordham — a road which it was acquiring the right to build by the prior provisions of the act. The first eight sections provide a complete scheme for the building of a railroad within the towns described in the title, and they are not so interwoven with section 9 as to be incapable of *401 separation from it without affecting the whole scheme of the act, and where an act of the legislature deals with a subject not expressed in its title, and the unlawful provisions are separable from those that are -lawful, and what remains is capable of being executed and stands complete in itself, it is the duty of the court to disregard the. unconstitutional part of the statute and give force and effect to that which is constitutional. (Matter of N. Y. & L. I Bridge Co., 148 N. Y. 540.) It is an interesting fact, although it in nowise affects the question we have been considering, viz., the constitutionality of the statute, that when the Harlem Bridge Company came to file its articles of incorporation with the secretary of state it refused to accept the benefit of the provisions of section 9; later on, however, by an amendment of the articles of association, it attempted to do so, yet neither it nor its successor, the Union Bailway Company, has ever attempted to lay railway tracks over any portion of the route described in section 9. It appears, therefore, that the Harlem Bridge Company was, on the 16th day of Hay, 1863, validly incorporated for the purpose of constructing, maintaining. and operating a street surface railroad from the northerly terminus of the Harlem bridge to Fordham depot, which is the route specified in section 1 of the act of 1863. But the appellant says that even if the court shall so hold, it nevertheless appears from the record that the Harlem Bridge Company failed to comply with section 47 of the Bailroad Law, which provides that if any corporation shall fail to complete its road within ten years “ its corporate existence and powers shall cease.” Assuming, but not deciding, that the legal consequences of the omission of that corporation to complete its road within ten years would have worked out the result for which the appellant contends, still the contention cannot be upheld because of the absence of the facts necessary for its support. Section 4 of the act of 1863 provides that the corporation created thereunder shall build its road from Harlem bridge to *402 Eighth street, Morrisania, in six months, and from that point to the Fordham depot in twelve months from the passage of the act. The first eight sections, as we have already seen, did not .authorize the building of any other road. The evidence is undisputed that the company not only constructed the road for the entire distance from Harlem bridge to Fordham within the period of twelve months authorized by the act, but that such road was completed and in operation within eight months from the passage of the act of 1863. The road that it did not build within ten years, and has never built, is that part of the road the building of which is attempted to be authorized by section 9 of the act, which we have already pronounced unconstitutional. Because that section contravened the organic law it was of no effect and neither authorized nor required the completing of the road described therein. For all purposes, • therefore, section 9 of the statute must be treated as if it had never been written. Thus treating it, as we have seen, there is no foundation for the claim that the Harlem Bridge Company failed to complete its road within the time required by section 47 of the General Railroad Law, even though it be assumed that that section is applicable, notwithstanding the provisions of the special act fixing a different period of time within which the railroad was required to be completed. The act of 1863 was several times amended prior to the act of 1892, which we must presently consider. The amendatory acts are chapter 715, Laws of 1865; chapter 815, Laws of 1866; chapter 892, Laws of 1867; chapter 658, Laws of 1871 ; chapter 717, Laws of 1873; chapter 553, Laws of 1874, and chapter 295, Laws of 1875. The conclusion which we have reached respecting the act of 1863 makes it unnecessary to consider what,- if anything, would have been the effect of the several amendatory acts upon a corporation organized under the act of 1863, had the appellant’s contention in respect to that act been sustained. Before entering upon a consideration of the objections to chapter 340 of the Laws of 1892, it will be well to have in mind the general situation .which this act was intended to *403 affect. By virtue of the act of 1863 and tlje subsequent amendatory special statutes and proceedings under the general laws, the Harlem Bridge Company had constructed and was operating about ten miles of double track, street surface railroad, nearly nine miles of which it had operated for a period of over twenty-seven years. There was also in existence the Melrose & West Morrisania Railroad Company, which was organized under the provisions of the General Railroad Law, having filed its articles of association in the office of the secretary of state on the 19tli day of August, 1886, wherein was stated the route of its proposed railway. On January 27th, 1890, the ¡North Third Avenue and Fleetwood Park railroad came into being in pursuance of the provisions of the General Railroad Law, by filing with the secretary of state articles of association, wherein was described the route of its proposed railway. Neither one of these corporations had entered upon the work of construction, nor had either obtained the necessary consents. Chapter 340 of the Laws of 1892 is entitled “ An act to amend chapter 361 of the Laws of 1863, entitled ‘ An act to authorize the construction of a railway and tracks in the towns of West Farms and Morrisania,’ and all acts amendatory thereof.” It does not attempt to amend the first five sections of the act of 1863, but section 6 of that act, which provided for the issuing of.bonds or obligations for the construction of the road, is amended so as to read in part as follows: “ The corporation formed under this act may, from time to time, consolidate its capital stock and property with the capital stock and property of any street surface railway company incorporated, or to be hereafter incorporated, for the purpose of building or operating any street surface railroad, * * * the line of which is north or east of the Harlem river, in the city of New York, or the county of Westchester, * * * or may acquire by purchase or lease for years, or other term, the property and franchises of any such street surface railroad company, now or hereafter incorporated for the construction and operation of any such street surface railroad. * * * Such consolidation, purchase *404 or lease to be on such terms and conditions as the directors of said corporations may agree upon.” (Then follows the procedure by which the stockholders were to be given an opportunity to ratify or reject such consolidation.) “ The name of the corporation formed by such consolidation shall be the Union Railway Company of Hew York City.” (Here follows the requirements of the agreement of consolidation, which shall contain certain statements as to the amount of capital stock, etc., after which the statute continues.) “ The original of such agreement of consolidation, and of said indenture of conveyance of lease, or a copy thereof, certified to be correct under the seals of said corporations, by the secretaries thereof, shall be filed in the office of the secretary of state, and from the time of such filing shall be taken and deemed to be the' agreement and act of consolidation, or indenture of conveyance or lease, of the said companies, and binding and valid in law, and a copy of the said agreement and act of consolidation or indenture or lease, duly certified by the secretary of state, under his official seal, shall be evidence in all courts and places of the existence of said corporation, and that the provisions of this act have been fully observed and complied with.” The rest of the section provides a method for increasing the capital stock, if desirable and for financing the company generally. Section 2 imposes upon such consolidated company all obligations imposed by law or contract upon any railroad company or persons so consolidating with the Harlem Bridge Company. Section three provides that sections 93, 95 and 98 of the General Railroad Law shall not extend to the Union Railway Company ; section 93 requiring the sales of franchises to be by public auction in cities of ninety thousand inhabitants; section 95 requiring the payment of a certain percentage on gross receipts to the municipality, and section 98 relating to repairs of streets. In place of these provisions may be found a requirement in section 3 that the company shall keep in permanent repair that portion of the street between the rails of its tracks after the same shall have been paved or macadam *405 ized, and section 4, which provides that the company shall pay one per cent on gross receipts whenever earnings shall during any period of six months exceed an average of seventeen hundred dollars per day, and that an additional annual payment of one per cent of such gross earnings shall he made by said company in like manner for each multiple of seventeen hundred dollars per day. The first question relating to the constitutionality of the act is whether it violates section 16 of article 3 of the Constitution, which provides that “ no private or local bills, which may be passed by the legislature, shall embrace more than one subject, and that shall be expressed in the title.” The title reads as follows: “ An act to amend chapter 361 of the Laws of 1863, entitled ‘ An act to authorize the construction of a railway and tracks in the towns of West Farms and Morrisania,’ and all acts amendatory thereof.” Section 1 expressly amends section 6 of the act of 1863, which authorized the Harlem Bridge Company to issue bonds. The new matter provides exclusively for the consolidation of the Harlem Bridge Company with any street surface railway company within a given territory. Section 2 treats of the same subject-matter, and the provisions of sections three and four have already been sufficiently adverted to. While the last- three sections were not expressly declared to be amended sections of the act of 1863, they as effectively amended the act as if they had been incorporated into it as amended sections thereof. The act is local, for operation under it is confined to a small territory. Its title purports to effect a single object, namely, the amendment of a particular statute, and necessarily calls attention to the fact that the purpose is to add to, or deduct from, the authority granted by it. In that respect at least the usual method of amendatory legislation has been followed, and, because it authorizes something not permitted by the original act, it does not necessarily add to the number of subjects embraced in the legislation. The amendatory act of chapter 715, Laws of 1865, authorized the use of “ dummy engines,” and of course no *406 one would suggest that the legislation embraced a new subject that should have been expressed in the title in addition to those already therein expressed ; the title given was, “ An act to amend an act entitled ‘ An act to authorize the construction of a railway and tracks in the towns of West Farms and Morrisania,’ ” and no one would suggest such a thing because, while the title refers to the construction only of a railway and tracks, .the regulation of the operation of the completed railroad belongs to it andgoeswith.it. Anything germane to the general subject of building and operating a railroad might have been included in the original act of 1863, provided always it was not prohibited by some constitutional provision. And that which might have been included in the original act without offending the constitutional provision under consideration, may be incorporated into it subsequently by amendment without a change of title. The original act as entitled might have provided not only for the construction of the Harlem Bridge railroad, but for its consolidation after completion with other street surface railroads, without offending against the provisions of section 16, for it would have related to the one general subject, namely, the building and operation of a railroad, either by itself or in conjunction with others under the plan authorized by the act. This amendment accomplishes no more than that, and, therefore, violates neither the letter nor the spirit of the Constitution. The views of this court upon that subject found expression in Matter of the Prospect Park & Coney Island R. R. Co. (67 N. Y. 371). That was a special proceeding instituted by the Prospect Park & Coney Island Bailroad Company to acquire a right of way by condemnation. Its right to do so was vigorously contested upon the ground, among others, that the act under which it based its claim of corporate life was violative of the provisions of section 16 of article 3 of the Constitution. It seems that the Prospect Park & Coney Island Bailroad Company had been formed by the consolidation of two previously existing companies, to wit, the Park Avenue Bailroad Company, with a route wholly within the city of *407 Brooklyn, and the Greenwood & Coney Island Railroad Company, with a route on Greenwood avenue in the towns of Gravesend and Hew Utrecht, wholly outside of the city of Brooklyn. A special act for the purpose "of effecting a consolidation was passed, entitled “ An act for the relief of the Park Avenue Railroad Company, in the city of Brooklyn, and to authorize the extension of its tracks through certain streets and avenues in the said city.” While section 1 of the act authorized the Park Avenue Railroad Company to extend its tracks in certain streets specified in the city of Brooklyn, section 3 authorized it to consolidate “ with any company or corporation now having the right to run and operate a railroad in and through any of the streets and avenues or highways in the county of Kings, * * * and such new* company, when organized and a certificate filed in the office of the secretary of state, shall have the right to lay and construct such parts of the road as are not already constructed, ' and to maintain and operate the whole road upon the route or routes of each of said companies so consolidating.” The court reached the conclusion that the consolidation was valid and in the course of its opinion said: “ The title of the act of 1874 does express the subject of the act sufficiently for all the purposes of the Constitution. The act does not treat of more than one subject; all that is in it might have well been in an act incorporating this company. It would have been the details of the one general subject. An act for the relief of a railroad company must be one to remove some restriction upon its powers or to give it greater powers. An act entitled, for the relief of such a corporation expresses such subject.” We shall next inquire whether the act violates that provision of section 18, article 3 of the Constitution, which provides : “ The legislature shall not pass a private or local bill * * * granting to any corporation, association or individual the right to lay down railroad tracks.” The act certainly does not in terms provide' that the company to be created by the consolidation shall have authority to lay down railroad tracks, nor does it purport to grant any *408 such right. But it is said that the Union Bailway Company has, as matter of fact, laid down railroad tracks, and, if they were lawfully laid, where did it get the authority if not from the statute ? The answer is very simple and it is this :" True, the Union Bail way Company has put down many miles of track since it came into existence, not, however, by virtue of any grant to it by the act of 1892, but solely because it has succeeded to the rights which the consolidating companies had to lay down tracks. An illustration will, perhaps, serve to make the absolute verity of the answer appear more readily. Assume that the Harlem Bridge Company had been authorized to build only from the Harlem river to Eighth street, Morrisania, and had done so; that the Melrose Company had been incorporated to build from the terminus of the former at Eighth street to Fordham, had acquired the necessary consents, prepared for building the road and would have soon completed it but for the passage of the act of 1892, the outcome of which was consolidation under the corporate name of' the Union Bailway Company, and that then the latter laid down the tracks. Ho one in that case would hesitate for a moment to say that the Union Bailway Company derived its authority to lay down tracks from the Melrose Company. The authority to build such railroad was vested in the latter company, and in it alone, through the machinery provided by the legislature, which could not thereafter take the right away and give it to another corporation. The draughtsman of the act of 1892 appreciated the situation, and, hence, there is not a syllable in the act, from beginning to end, that suggests an intent to grant to the consolidating corporations the powers which of right belonged to and were vested in the corporations that were to be the subject of consolidation. The act provided for a consolidation of the capital stock and property of any street surface railroad within the territory described in the act, and the effect of a consolidation was to enable the new corporation to succeed to all of the rights and privileges of the consolidating companies, whatever their nature and character, including such rights as they had, or, under the *409 General Railroad Law of this state, might be permitted to acquire in'the nature of extensions of, or branches from, the road already built or those which were at the time simply located. We have thus briefly called attention to the distinction that the courts have been frequently called upon to make between the grant of a right and the regulation of rights previously granted. In Matter of the N. Y. El. R. R. Co. (70 N. Y. 327) this court had under consideration a special act known as chapter 595 of the Laws of 1875. It was contended that the act violated the constitutional provision we are considering, in that it conferred authority to lay down railroad tracks and granted exclusive privileges; it was held, however, that the act did not confer any new franchises, but only confirmed and regulated those previously possessed by another company, and that it did not authorize the laying down of railroad tracks, but simply confirmed the authority previously granted to the company to which the elevated railroad company had succeeded; and the court, through Judge Earl, said: “These constitutional provisions do not prohibit a private or local bill to amend the charter of a private corporation by regulating the powers, rights, privileges and franchises which it previously possessed. Such a bill may not be passed to give to an existing corporation any new right to lay down railroad tracks, or any new exclusive privileges or franchises; but it may be passed to regulate and control the right to lay down tracks previously existing, or to give new privileges or franchises^ provided they be not exclusive.” The decision of this court in Matter of Gilbert El. Ry. Co. (70 N. Y. 361) is also in point. While the act of 1892 does grant an exceptional privilege it does not grant “ an exclusive privilege, immunity or franchise ” within the meaning of the Constitution. (Matter of Union Ferry Co., 98 N. Y. 139.) The contention that the act is void because it does not require the consents of the abutting owners and of the local authorities is met by the argument made while considering *410 the question whether the act of 1892 operated as a grant of the right to lay down railroad tracks. The act does not attempt to do away with the necessity for the consents which the Constitution and the statutes require. It does not attempt to provide the procedure for the building of a railroad, but for the consolidation of the Harlem Bridge Company with other companies, two of which were in existence and were organized under the General Railroad Law ana made subject to its provisions, as was the Harlem Bridge Company. To such rights as those corporations had, the act, in effect, provides that the consolidated corporation shall succeed, and it expressly provides, among other things, that the latter corporation, when created, shall succeed, not only to the rights of the existing corporations, but also to their burdens, obligations and liabilities imposed by law. Those corporations could not, prior to the passage of the act of consolidation, build the roads located by them, or extensions or branches thereof, as authorized by the General Railroad Law, without obtaining the consent of the municipal authorities and of the abutting owners in the manner and to the extent required by the statute. The act of 1892 simply places the consolidated corporation in the shoes of the then existing corporations, with the exceptions expressly provided by sections 3 and 4 of the act, which, as we have already seen, relieve the consolidated corporation from the necessity of complying with sections 93, 95 and 98 of the General Railroad Law, and substitute other requirements in their stead. But it is said: If it be true that the General Railroad Law is applicable to the consolidated corporation, then the construction of new lines was without authority because no consent was granted by the local authority of the annexed district. It is conceded that the requisite consents of the abutting owners were obtained, and the common council of the city of Hew York, by appropriate resolution, duly gave consent to such construction. The appellant, however, insists that the legislation relating to the powers and duties of the commis- ■ sioner of street improvements of the twenty-third and twenty- *411 fourth wards of the city of New York, conferred upon that officer exclusive control of the streets and avenues within those wards, and, hence, that his consent was necessary. As that officer interpreted the statute, the consent of the municipal authorities, by which the franchise to construct and operate a railroad in a given street is obtained, was completed by the consent of the common council given in conformity with law, but before the company could enter upon the work of constructing its railroad in such street, it was necessary for it to obtain his permit. In conformity with his understanding of the law he did, from time to time, grant permits for such construction, so that, as matter of fact, the Union Railway Company has not only acquired the consent of the municipal authorities for all of the construction entered upon by it, but has had, in addition, the permit of the commissioner of street improvements. If a permit only were required, then the proceedings were in all respects regular. If, on the .other hand, the commissioner was the local authority for that district, whose consent was made necessary in order to create a franchise under the provisions of the General Railroad Law, then that consent was not obtained, for the statutory notice of the application was not given. The Appellate Division reached the conclusion, with which we are in agreement, that the statutes did not confer upon the commissioner of street improvements such exclusive control of the streets in such wards as, under section 91 of the General Railroad Law, required the consent of such commissioner in addition to the consent of the common council for the construction of street railroads in such streets; and as we are content with the reasoning of the learned presiding justice, we shall omit a discussion of the question. It is further urged that the Union Railway Company has no power to construct railroads, because the original company was not authorized to consolidate with paper corporations, and, therefore, no consolidation has been effected. A legislative grant of a right to consolidate is not forbidden by the Constitution. (Matter of Prospect Park & Coney Island R. R. *412 Co., supra.) The only question, therefore, is whether this act was broad enough to authorize the consolidation • made, for there is no room to doubt that the legislature had power to authorize such consolidation. The fact is, as has already been observed, that the Melrose Company and the West Morrisania and the North Third Avenue and Fleetwood Railroad companies had not obtained the necessary consents to the building of the roads located by them, and of course had not entered upon the work of construction; but they were duly incorporated under the General Railroad Law and had located their routes. Each company possessed capital stock, divided into shares of fifty dollars each, of which three hundred and fifty had been subscribed at the time of the incorporation. Necessarily these subscriptions had been partly paid, otherwise the companies could not have been legally incorporated. The subscriptions unpaid constituted an indebtedness to the company and were assets and property of the company. Each was incorporated for the purpose of building a railroad within the specified territory. Each company, therefore, had capital stock and property with which the capital stock and property of another surface .railroad corporation could be consolidated with the permission of the legislature. Turning to the act of 1892, we find that section 6 of the act of 1863 is so amended as to provide that the corporation formed under this act may, from time to time, “ consolidate its capital stock and property with the capital stock and property of any street surface railroad company incorporated or to be hereafter incorporated for the purpose of building or operating any street surface railroad. * * * ” Thus it appears that the terms of the act were sufficiently comprehensive to authorize the consolidation actually made. Some of the steps taken by the consolidated corporation have been challenged, but we do not think the questions raised merit discussion. Our conclusion is that the enactments to which the Union Railway Company owes its existence and under which it has acquired the property and fights now in its possession were within the legislative power, and, therefore, may not be inter *413 fered with by the courts whatever may be their view of the propriety of the legislation, and that the proceedings resulting in, and those taken subsequent to, consolidation were substantially in conformity to the statutes applicable thereto and valid. The judgment should be affirmed, with costs. All concur, except Bartlett, J., dissenting, and Martin, J., absent. Judgment affirmed.