Brickhouse v. Hill

DISSENTING OPINION. The Constitution is the organic law of the State, and it embodies the fundamental principles according to which the sovereign power of the people is to be exercised through the governmental agencies created by them for that purpose. Its framers expected it to endure, and they knew that it would apply to unforeseen and ever-changing conditions. For this reason they drafted its provisions on broad and general lines, leaving its particular application to be worked out through the processes of construction and interpretation. It therefore contained the germ of growth, but the growth was merely to be an unfolding of the intention and purpose in the mind of the people when they framed the Constitution, as expressed in its terms. Though subject to construction, the Constitution itself was to undergo no change. It was not to be one thing today, and quite a different thing tomorrow. There was no place in its organic character for variableness, and it was contemplated that there would be an unbroken continuity of its original meaning and mandate throughout its entire existence.

In expounding the Constitution, the court acts under the same weight of responsibility that rested on its framers. It acts under a duty, not a license. Its sole authority is to discover the intention of the sovereign power behind the instrument, as disclosed and exemplified in its language and provisions. It is merely the mouthpiece through which that power speaks. And, when it thus speaks, it is the old voice of the Constitution, expressing its original meaning and its pristine purpose.

It is just as important, just as imperative, that there should be consistency, certainty and stability in the interpretation of the Constitution as in its original *Page 540 framework. The Constitution is unavoidably subject to interpretation and construction, for it is only through those processes that it can attain its final expression. But the very genius of the Constitution, as the fundamental fabric of the whole governmental institution, would be impaired, if not destroyed, if it were construed to be one thing at a given period, and something else at another. It must have an enduring meaning, as well as an enduring existence, if it is to accomplish its function as the fundamental law, and mark at all times, with procrustean exactness, those limitations and restrictions which the people, in their sovereign capacity, conceived to be necessary for the protection of their political rights, and for the promotion and advancement of those blessings to secure which the government itself was created.

When the court places a certain construction on any provision of the Constitution, the construction becomes, in effect, a part of the Constitution itself. It is a judicial determination that the Constitution always has been what the court construes it to be. It fixes the rule by which property rights of the past, as well as those of the present and of the future, must be measured. It draws a line which extends straight back to the adoption of the Constitution, on one side of which all official acts performed by the various departments of State are valid, and on the other side of which they are void. It establishes retrospectively the constitutionality of acts of the Legislature, to which the commercial and social activities of the people have conformed, and under which rights have sprung up and obligations have been incurred. It even determines whether or not amendments to the Constitution itself, previously submitted to and voted on by the people, have been adopted, without regard to the fact that they have been officially declared, under previous constructions of the Constitution, not to have carried, and such official declaration has been long acquiesced in. It is this character, and this all-comprehensive effect of judicial constructions, *Page 541 especially of the Constitution, that should attach to them the qualities of endurance and stability.

Any construction of the Constitution is liable to be questioned, particularly after a lapse of years and a change in conditions. But this very possibility occasions the necessity for, and emphasizes the wisdom of, the principle of stability. Business may be safe, and property secure, under an erroneous construction, if there is a well-founded conviction that it will not be departed from except for extraordinary and overwhelming reasons — reasons far more impelling than the mere fact that the court, at a subsequent time, might feel inclined to hold differently if the question were one of first impression. But there could be neither safety nor security under a judicial practice and sanction of fictitious change. Granted that it is a choice between two evils — between error that charts the sea, and uncertainty that destroys all reckonings — it is a choice without alternatives; for the public can adjust itself to the one, it cannot guard against the other. And in the one case, it is always possible to correct the error, if needs be, by amending the Constitution, which could be accomplished without affecting the status of things, or doing the least violence to existing rights. In the other, there is neither remedy for the evil nor protection against its results.

Section 22 of article 19 of the Constitution of 1874 provides that either branch of the General Assembly may propose amendments to the Constitution, to be submitted to the electors of the State for approval or rejection, and that, "if a majority of the electors voting at such election adopt such amendments, the same shall become a part of this Constitution."

In Rice v. Palmer, 78 Ark. 432, the court, construing this section, said: "The majority necessary to adopt it must be the majority of electors voting at the general election for Senators and Representatives, and not a mere majority voting on the subject of the amendment. The framers of the Constitution of 1874 used plain and simple English. They knew what they wanted, and what *Page 542 they did not want, and this, more than any other Constitution of the State, is full of details and explicit limitations. The time in which it was framed begot positiveness and strong convictions."

The appellants have marshaled their forces against Rice v. Palmer, and the attack is made with great earnestness and vigor. The court is asked to review and overrule that case, and change the construction which it places on 22 of article 19 of the Constitution.

The assault is met at the threshhold with the clear, direct and explicit language of the section. "If a majority of the electors voting at such election adopt such amendments, the same shall become a part of this Constitution."

Back of this language, crystalline in its lucidity, was a history that penned it, and that selected each word with the most discriminating care. The Constitutions of 1836, 1861 and 1864 provided that amendments could be made by the General Assembly, by a vote of two-thirds of the members of each house. They contained no provision for submitting amendments to the people. By the Constitution of 1868, however, the people took from the General Assembly the power to amend the Constitution, but authorized it to propose and submit amendments, and reserved to themselves the power to approve and ratify. This was the first reservation of power in this State, and the provision was, "if the people shall approve or ratify such amendment or amendments, by a majority of the electors qualified to vote for the members of the General Assembly voting thereon, such amendment or amendments shall become a part of this Constitution."

This language also was clear and unmistakable. In the first experiment of reserving power it was specifically provided that the favorable vote of a majority of the qualified electors voting on the amendment was all that was required for its adoption. But when the people came to write the Constitution in 1874, they did not copy the provision of the Constitution of 1868. On *Page 543 the contrary, they made a radical change in its terms. The change was not made haphazardly or by chance, for nothing was left to chance in that convention. They wrought out of their own experience; and they had the experience of other commonwealths, and the models of their Constitutions, as a guide. They knew that the Constitutions of just four States in the Union, Illinois, Ohio, Mississippi and Nebraska, required a majority of the votes cast at the election for their amendment, while the Constitutions of most of the other States contained provisions similar to that of the Constitution of 1868. A deliberate and intentional change, therefore from "voting thereon" to "voting at such election," must have been purposeful. Harris v. Walker, 74 So. (Ala.) 40. And the conclusion is irresistible that the framers of the Constitution of 1874 intended the words, "a majority of the electors voting at such election," to mean exactly what they say. They certainly did not intend them to have the same meaning as the words "voting thereon" which they had purposely rejected. Knight v. Shelton, 134 F. 423.

Thirty-one years elapsed before any question was raised as to the number of votes required under the provision of the Constitution of 1874. The question was first presented in Knight v. Shelton, supra, which was decided by the Federal court at Little Rock in 1905. In that case the court made an exhaustive research of the authorities, and a painstaking comparison of the Constitutions of the various States, all of which are reviewed in the opinion. And the court construed 22 of article 19 to require a majority of all the votes cast at the election for the adoption of an amendment. The case of Rice v. Palmer followed a year later, and this court, in that case, after a like careful consideration, reached the same conclusion.

The decision has remained unchanged and unshaken from that day to this. It has been affirmed and reaffirmed in every case that has arisen. Railway Co. v. Kavanaugh, 78 Ark. 468; Cobb v. Hammock, *Page 544 82 Ark. 584; State v. Donaghey, 106 Ark. 161; Grant v. Hardage,106 Ark. 508; Hildreth v. Taylor, 117 Ark. 465. It was said by the court in one case, referring to Rice v. Palmer, that "whatever doubts upon that question which may have existed theretofore were finally put at rest by that decision, and it must now be treated as the settled law of this State." Cobb v. Hammock, 82 Ark. 584. The decision has been cited with approval and followed by the courts of other States. Ellingham v. Dye, 99 N.E. (Ind.) 1; In re McConaughey, 119 N.W. (Minn.) 408; State v. Marcus, 152 N.W. (Wis.) 419. And the courts of other States have put the same construction on similar provisions in their own Constitutions. State v. Powell,77 Miss. 543; Kelly v. State, 95 So. (Miss.) 690; Simmons v. Bud, 136 N.E. (Ind.) 14; In re Boswell, 100 N.E. (Ind.) 833; People v. Stephenson, 117 N.E. (Ill.) 747; In re Initiative Petition, 109 Pac. (Okla.) 823; Carton v. Secretary of State, 45 N.W. (Mich.) 429; State v. Brooks, 99 Pac. (Wyo.) 847.

Since the adoption of the Constitution thirty-nine amendments have been proposed and submitted. Of this number, nine received a majority of the votes cast at the election and were officially declared to be adopted, and now appear as a part of the Constitution in Crawford Moses' Digest. Four amendments which received a majority of the votes thereon, but not a majority of the votes cast at the election, were nevertheless declared to be adopted by the Speaker of the House of Representatives. Two of them were tested in the courts. It was held that the question whether or not they had been adopted was a judicial question, and, further, that they had not been adopted. The remainder of the thirty-nine amendments proposed and submitted failed to receive a majority of the votes cast at the election, and were officially declared by the Speaker of the House not to have been adopted. Proclamations of the Governor were issued in accordance with the declarations of the Speaker of the House. *Page 545

It thus appears that all three of the great departments of State have approved, acquiesced in and followed the construction of the Constitution announced in Rice v. Palmer. It has also been acquiesced in by the people themselves, for the fate of the thirty-nine efforts to amend the Constitution has been determined by its mandate, and they have accepted its arbitrament, and abided by its results. And it is significant that neither the General Assembly nor the people have ever proposed an amendment to change the requirement as to the number of votes necessary for the adoption of amendments, unless it could be said to be embodied in the proposals for the initiative and referendum.

For these very cogent reasons, a majority of the judges decline to overrule the case of Rice v. Palmer.

On January 12, 1911, the people adopted Amendment No. 7, known as the Initiative and Referendum Amendment; and it is contended that this amendment repeals by implication that part of 22 of article 19 which specifies the number of votes required to adopt an amendment. Amendment No. 7 is as follows:

"The legislative powers of this State shall be vested in a General Assembly, which shall consist of the Senate and House of Representatives, but the people of each municipality, each county and of the State reserve to themselves power to propose laws and amendments to the Constitution and to enact or reject the same at the polls as independent of the legislative assembly, and also reserve power, at their own option, to approve or reject at the polls any act of the legislative assembly. The first power reserved by the people is the initiative, and not more than 8 per cent. of the legal voters shall be required to propose any measure by such petition, and every such petition shall include the full text of the measure so proposed. Initiative petitions shall be filed with the Secretary of State not less than four months before the election at which they are to be voted upon.

"The second power is the referendum, and it may be ordered (except as to laws necessary for the immediate *Page 546 preservation of the public peace, health or safety), either by the petition signed by 5 per cent. of the legal voters or by the legislative assembly as other bills are enacted. Referendum petitions shall be filed with the Secretary of State not more than ninety days after the final adjournment of the session of the legislative assembly which passed the bill on which the referendum is demanded. The veto power of the Governor shall not extend to measures referred to the people. All elections on measures referred to the people of the State shall be had at the biennial regular general elections, except when the legislative assembly shall order a special election. Any measure referred to the people shall take effect and become a law when it is approved by a majority of the votes cast thereon, and not otherwise. The style of all bills shall be, `Be it Enacted by the People of the State of Arkansas.' This section shall not be construed to deprive any member of the legislative assembly of the right to introduce any measure. The whole number of votes cast for the office of Governor at the regular election last preceding the filing of any petition for the initiative or for the referendum shall be the basis on which the number of legal voters necessary to sign such petition shall be counted. Petitions and orders for the initiative and for the referendum shall be filed with the Secretary of State, and, in submitting the same to the people, he and all other officers shall be guided by the general laws and the acts submitting this amendment until legislation shall be specially provided therefor."

Amendment No. 7 grew out of a great political agitation, which stirred the people of the whole State, and in which the most tremendous issues were involved. As soon as it was adopted, a violent controversy arose as to its real scope and effect, and three clear-cut and well defined views, which may be called the "revolutionary," the "independent plan," and the "supplementary," developed, and each was earnestly championed.

According to the first, the amendment was radical and revolutionary, covered the whole field of the reserved *Page 547 power as to amendments and acts, and regulated every exercise of that power. This view is forcefully exemplified in the dissenting opinion of special Justices HILL and McCOLLUM in Ferrell v. Keel, 105 Ark. 380, in which it is said: "The amendment prescribes the number of votes necessary to adopt any measure submitted to the people, and provides that the people or the General Assembly may submit amendments to the Constitution, or measures, for adoption or rejection, at general elections, or special elections to be called to vote thereon. The lawmaking power of the State is thereby revolutionized, and all of it is vested, affirmatively or negatively (save alone a limited class of emergency acts) in the people themselves."

According to the second, the "independent plan" view, the amendment created a wholly independent plan for the submission and adoption of amendments, radically different from that provided in 22 of article 19, and completely regulated the exercise of the reserved power of initiating amendments by the people, but had nothing to do with the submission of amendments by the General Assembly. This view is vigorously presented in the dissenting opinion of Justices WOOD and SMITH in State ex rel. Little Rock v. Donaghey, 106 Ark. 56, in which it is said: "A comparison of the provisions of 22 of article 19 of the Constitution and its enabling act with the provisions of Amendment No. 7 and its enabling act, set out above, will discover two radically different and wholly independent plans for the submission and adoption of amendments to the Constitution. The one representative, by the Legislature, the other direct, by the people themselves." And they contended that 22 of article 19 controlled exclusively amendments submitted by the Legislature, while amendment No. 7 controlled exclusively amendments initiated by the people.

The third, or "supplementary" view, occupied middle ground between these two extremes. According to it, the amendment was not revolutionary in any sense, *Page 548 and was only intended to add to the reserved power of the people in the matter of amending the Constitution and enacting laws. By the Constitution, the power of proposing and submitting amendments and of enacting laws was vested exclusively in the General Assembly. The people reserved no power to propose amendments, and no legislative power whatever. The sole reservation was of the power to approve or reject amendments proposed by either branch of the General Assembly, and agreed to by a majority of all the members of each house. And the theory was that the people, in framing Amendment No. 7, confined their efforts to the one purpose of enlarging their power in the matter of proposing amendments, and inserted no provision or specification as to the manner of exercising the power. It was not necessary to insert them, because the specifications were already provided by 22 of article 19. An amendment initiated by the people would at once therefore come under the specification of 22, which would be controlling in so far as there was nothing in the amendment in irreconcilable conflict therewith.

When Amendment No. 7 came before the court, all three views were pressed on its attention. But the court held that its duty was to interpret the amendment according to the established canons of judicial construction, and that it was not concerned with the partisan views of its advocates and opponents. "We decline to consider them as proper aids to the judicial determination of its meaning. * * * "The people of the State have approved the principle of the initiative and referendum by the adoption of the amendment, and that has ceased to be a political question. It remains only for the court to give it a rational interpretation for the purpose of carrying out the popular will as expressed by the language used in the instrument which the people have voted upon and have adopted." Hodges v. Dawdy,104 Ark. 583. Applying the ordinary rules of construction, it was held: "The constitutional amendment whereby the people of the State reserve to themselves the power *Page 549 to legislate directly by the initiative or referendum does not abrogate the existing Constitution and laws of the State except such provisions as are necessarily repugnant thereto." * * * "The amendment being the last expression of the popular will in shaping the organic law of the State, all provisions of the Constitution which are necessarily repugnant thereto must, of course, yield, and all others remain in force. It is simply fitted into the existing Constitution, the same as any other amendment, displacing only such provisions as are found to be inconsistent with it. Like any other new enactment, it is a fresh drop added to the yielding mass of the prior law, to be mingled by interpretation with it."

The court, true to its noblest traditions, stood far above the arena of political strife, and pronounced its judgment in the calm majesty of the law. It refused to be swayed from the sound principles which must determine the construction of constitutions and statutes alike, if there is to be stability and security in popular government. And it applied those principles in construing the amendment, without the slightest regard to how the result would be looked upon by the political factions of the day.

Amendment No. 7 was before the court again in Ferrell v. Keel, supra, and the question was whether the enacting clause specified in the amendment applied to acts passed by the Legislature. The court approached the question in the same judicial manner. It announced the canon of construction that has always been followed in this State, and then applied it. Quoting from State v. Scott, 9 Ark. 270, a case which involved the construction of an amendment to the Constitution, the court said: "In determining the intention of the framers of the amendment, we must keep in view the Constitution as it stood at the time the amendment was made, the evil to be remedied by the amendment, and the amendment proposed by which the evil is to be remedied. No interpretation should be allowed which would conflict with any other provision of the Constitution, or which is not absolutely *Page 550 necessary in order to give effect to the proposed amendment. On the contrary, such construction should be given as will, if possible, leave all the other provisions in the Constitution unimpaired and in full force." And it was held that the provision with reference to the enacting clause in the amendment did not conflict with 19 of article 5 of the Constitution. "They are not in conflict because one relates to legislation by the General Assembly and the other relates to legislation by the people. They could only be repugnant if the initiative and referendum amendment covered the whole scope of legislation. This, in our judgment, it did not do. The amendment not only does not deal with the whole scope of legislation, but it shows on its face affirmatively that it is only creating an additional legislative power and regulating the manner of its exercise. Instead of dealing with the whole scope of legislation, the initiative and referendum amendment leaves absolutely untouched the many provisions of the Constitution contained in article 5 that relate to the exercise of legislative power by the General Assembly."

Section 22 of article 19 of the Constitution provides that only three amendments shall be proposed or submitted at the same time. Amendment No. 7 is silent as to the number of amendments that may be submitted. The question in State ex rel. v. Donaghey, supra, was whether or not Amendment No. 7 repealed by implication 22 of article 19 in this respect. The court again recurred to the rules of construction from which it has never departed. "No interpretation of an amendment should be allowed which would conflict with any other provision of the Constitution, or which is not absolutely necessary in order to give effect to the amendment. Such construction should be given as will if possible, leave all the other provisions of the Constitution unimpaired and in full force." And it held that there was no unavoidable conflict no absolute repugnancy, between the amendment and the provision of the Constitution, and that the former, which limited the number of amendments *Page 551 to be submitted at the same time, remained unimpaired and in full force. The decision was by a unanimous court.

The court, in the foregoing cases, was always consistent. It simply applied the recognized and long established rule of construction, and the result in each case was logical and inevitable. By this process it fitted the amendment into the body of the existing Constitution, as a component part thereof, leaving all the provisions of the Constitution which were not in irreconcilable conflict with the amendment in full force and effect.

The next case was Hildreth v. Taylor, 117 Ark. 465, and it has received the brunt of the attack in the present controversy. In that case the question was whether or not the provision of 22 of article 19, "if a majority of the electors voting at such election adopt such amendments the same shall become a part of this Constitution," was repealed by the provision of Amendment No. 7, "any measure referred to the people shall take effect and become a law when it is approved by a majority of the votes cast thereon, and not otherwise." In determining this question, the court cast its decision in the same mold which had been used in every case construing not only Amendment No. 7, but every amendment that has ever been brought before it. It examined the amendment to ascertain whether anything in it was in irreconcilable conflict with, or necessarily repugnant to, 22 of article 19. It found no such conflict or repugnancy. And, in harmony with established principles, and consistent with its prior decisions, it held that the requirement of the Constitution with reference to the number of votes necessary to adopt an amendment applied to all amendments, whether proposed by the General Assembly or initiated by the people. The court said:

"It is contended, however, by learned counsel for appellees, that Amendment No. 10 specified a different rule with reference to amendments initiated by the people, and they base their argument upon the following language found in the amendment: `Any measure referred *Page 552 to the people shall take effect and become a law when it is approved by a majority of the votes cast thereon, and not otherwise.' The contention is that the language just quoted is broad enough to cover measures of every kind, statutes and amendments to the Constitution initiated by the people, as well as referred bills of the General Assembly. It is argued that the word `referred,' as used in that connection, means all measures submitted to the people in any manner under the provisions of Amendment No. 10. A consideration of the sentence quoted above, when viewed in its connection with other parts of the amendment, does not, we think, bear out that contention. Any argument that can be made in support of the view that that sentence includes anything more than legislative bills referred to the people is erroneously based upon the assumption that the people, by framing and adopting this amendment, intended to tear away all other provisions of the Constitution and substitute this in place. The argument is necessarily based upon the idea that Amendment No. 10 is revolutionary, and that every sentence contained therein must be considered without reference to its relation to the provisions of the unamended Constitution. This, we think, is an entirely erroneous view to take of the amendment and the design of the people in adopting it. We have said in other cases dealing with the provisions of the amendment that it was intended to take its place in the Constitution as other amendments and to be considered with reference thereto, and that it only repealed other provisions which are found to be necessarily repugnant. Hodges v. Dawdy, 104 Ark. 583; State ex rel. v. Donaghey, 106 Ark. 56; Grant v. Hardage, supra."

The foregoing is the crux of the decision, and was determinative of the case. But the court went further, not so much for the purpose of fortifying its decision, as to show that a critical analysis of the language of Amendment No. 7 would lead to the same result as the one obtained by the application of the fundamental principles of constitutional construction. The court prefaced *Page 553 the remainder of the opinion with the statement: "But it is by no means necessary to rest the case upon the application of that principle, for the reason there are so many other indications in the amendment, when considered as a whole, which show that the framers did not have it in mind that the words `measure referred to the people were to be interpreted as meaning all amendments to the Constitution submitted in any manner." It is noteworthy that every criticism made in the briefs in the present case, as well as in the arguments at the bar of the court, is leveled at the reasoning employed in this part of the opinion. No one has assailed the real principle on which the decision rests. Indeed, it could not be assailed, without a like attack on the principle which controlled in Hodges v. Dawdy, State v. Donaghey, and Grant v. Hardage, supra. It is remarkable, to say the least, that an assault that was prosecuted with sufficient vigor to carry it all the way back to Rice v. Palmer should take a circuitous route that left the Dawdy, Donaghey and Hardage cases unscathed.

A corollary of the rule of construction that every provision of the Constitution which is not in irreconcilable conflict with, or unavoidably repugnant to, the provisions of the amendment must be allowed to stand unimpaired, is the subsidiary rule that, when the language of an amendment is susceptible of two interpretations, one in harmony with the provisions of the Constitution, and the other repugnant to such provisions, the interpretation which avoids a conflict and results in harmony should be preferred. It was under this rule that the court in the Hildreth case discussed the meaning of the words "measure referred." The words are undoubtedly susceptible of two interpretations. They occur in the referendum clause of the amendment, in immediate connection with the specifications on that subject. And it was contended that their meaning in ordinary parlance, as well as that derived from the context with which they are associated, indicates their appropriateness to acts passed by the Legislature and referred to the people, *Page 554 and their inappropriateness to amendments to the Constitution. It was insisted, on the other hand, that the word "measure" was used in its collective sense, and that, by relation back, it was intended to have the meaning of the same word as used in the first paragraph, which speaks of amendments as well as laws. The first interpretation harmonized the provision with 22 of article 19; the second brought it into absolute repugnancy to that section. The court, following the general rule, that is not questioned even in the present case, adopted the interpretation which established harmony and avoided all conflict.

The Hildreth case was decided by a unanimous court. The judges who decided it compose the court today, but are disqualified to sit in the present cases. If they could speak, they would decide now as they decided then, for the canon of construction on which the case was based has undergone no change. Moreover, the ruling of the case has been affirmed and followed. Whittemore v. Terral, 140 Ark. 493. And the case itself, decided nearly ten years ago, is strengthened, if that be needed, by stare decisis. "It is essential that there should be stability and uniformity in the construction and interpretation of the law. The conduct of the affairs of State, the rights and interests of individuals, the uniformity of the enforcement of the law, and the proper administration of justice, require in these matters that there should be settled rules. It becomes necessary, as a general rule and as a matter of public policy, to uphold the principles which are announced in the decisions of the court of last resort after they have been followed and acted upon. Relying upon these decisions, public policies are formulated, and the property rights of individuals acquired and fixed." Rhea v. State, 104 Ark. 162. And the court had declared that this doctrine is applicable with peculiar force to decisions construing provisions of the Constitution. "Without it, it would be difficult, if not impossible, to build up and preserve any valuable system of jurisprudence; and especially is this rule *Page 555 applicable to decisions on constitutional questions, when such decisions may settle the basis of important public interests, or some system of laws, the overthrow of which might vibrate throughout the State, and tend to produce anarchy and confusion." Ex parte Hunt,10 Ark. 289. If the court, speaking through its accustomed judges, declares itself bound by its own decisions, for much greater reasons should the court, composed of judges who wear the ermine only for a day, respect and follow them. A change of decisions with every change of judges would be intolerable. If such a possibility were once admitted, judicial precedents would be written on the sand, and the courts, which are the steadying and cohesive force in popular government, would become the sport of designing interests, the coveted prize for which factions would contend. Mabardy v. McHugh,202 Mass. 148; London Street Tramway Co. v. London County Council (1898), A.C. 375.

MANN, Special J., concurs in this dissent.