Dissenting opinion of
Justices McClellan and Coleman::The facts and status of the case are sufficiently stated in the opinion of the court rendered by the Chief Justice.
Section 130 of the Code reads as follows :
“ Appointment of Commissioner and term, of offiee. — The-Commissioner of Agriculture is appointed by the Co ver nor,, and holds office for the term of two years, and until his successor is appointed and qualified.”
The act of February 18, 1891, is as follows : “An act to» *656make the office of Commissioner of Agriculture elective.” ■“Section 1. Be it enacted by the General Assembly of Alabama, that the office of Commissioner of Agriculture be hereby declared an elective office, and that at the general election in 1892, and every two years thereafter, there shall be elected one Commissioner of Agriculture, whose term of office shall be two years. Section 2. Be it further enacted, that all laws and parts of laws in conflict with the provisions •of this act be, and the same are hereby repealed.”
There is nothing in the latter act which expressly or impliedly extends the term of office fixed by section 130 of the Code. In the case of City Council of Montgomery v. Hughes, 65 Ala. 206, the words, “and until his successor is appoint ed and qualified,” employed in section 130, supra, were judicially construed and declared. It is there held, that the •clause “was intended to cover the reasonable time which may be necessary for his successor to qualify.” This decision was rendered many years prior to, and was in force at, the time of the passage of section 130 of the Code, in which the same words are used. It is the law, that the substantial reenactment of a statute, which has received a known, fixed .judicial construction, is a legislative adoption of that construction. — 3 Brick. Dig’., p. 719, § 16, and many authorities cited to support the text. The same rule must apply to the use of words which have been judicially declared. Whatever construction may have been given to these words in ■other States, it is not an open question here. We are bound to presume the legislature re-enacted them as judicially construed.’
The term of an incumbent holding by appointment under section 130 of the Code was limited to two years from the day of his appointment, and a reasonable time thereafter, for the appointment and qualification of his successor. Whether the term of the incumbent continued until the expiration of the two years to which he was appointed, or was immediately terminated by the act of February 1*, 1891, is the difficult question in this case.
The act cannot operate prospectively so as not to interfere with the term of the then incumbent, and operate immediately, so as to take away at once the appointing power ol the Governor. In our opinion,, there is no escape from this conclusion, if the act is fairly and impartially construed, ■giving to all its parts some force. If the operation of the act was immediate, so as to make the office at once elective, it took from the Governor the power to appoint, and at the ¡same time, it terminated the term of the then incumbent, *657and, created a vacancy in the office. We will test the act by well known rules of construction.
All courts and text writers of recognized authority, so far as we have examined, hold that when a statute is expressed in ambiguous terms or words, or so framed that it is of doubtful meaning, in arriving at the legislative intent, it is proper to consider the result intended, and consequences to follow its construction; and any construction of a statute of this character, which will defeat its operation, or lead to an absurd conclusion, or injuriously affect the public welfare, as far as possible ought to be avoided. The same authorities, with equal unanimity, recognize that this rule of construction does not apply, and is wholly inadmissible, when the statute is free from ambiguity, when the legislative intent is clearly expressed, and the statute can have but one meaning and purpose. Otherwise, under the rule, courts, instead of donstruing the law, will exercise a supervisory and controlling power over the policy of legislation.
The opinion of the Chief Justice, to our minds, proceeds on the assumption, that the consequences to flow from an act are always to be looked to in arriving at its meaning. That this can not be done where the language of the act is plain and unambiguous, is amply demonstrated by each of the cases cited and relied on by the Chief Justice. Thus in Somerset v. Dighton, 12 Mass. 383, it was doubtful on the words of the acr,, whether it was intended to operate retrospectively, and the court held, on the familiar rule, that statutes are not to be taken as operating in the past, unless the intention to have them do so is manifested by the most clear and unequivocal expressions; that, it being doubtful whether such intent existed, there beingno clear expression ■of it, the statute operated prospectively only, to avoid results which would flow from the contrary construction, never questioning, however, that had such intent been ■clearly expressed, the consequences of executing it could not be looked to. So with the case of Smith v. People, 47 N. Y. 330. The opinion there proceeds expressly on the ground that the language of the act and of another act in pari materia exhibited, in some degree, a legislative intent to limit the effect of an otherwise broad provision, ‘‘sufficient to create a reasonable doubt as to the true meaning of the act, and justify the looking outside of the act for other legitimate evidence of the intent.” The case of Stewart v. Keemle, 4 Serg. & R. 72, involved an act confessedly obscure in its own terms. And in Hoke v. Henderson, 4 Dev. L. (N. C.). referred to particularly by the Chief Justice, the *658learned Ruffin held that, “In construing a statute, if the words are ambiguous, resort should be had to the probable consequences, which would arise from the one or the other construction; but, if the meaning of the language of the act be plain, there can be no such resort.” And he continued: “We can not, under the pretense of interpretation, repeal the act, and thus usurp a power never confided to us, which we can not usefully exercise, and which we do not desire.” Also, in Neenan v. Smith, 50 Mo. 525, it is expressly held, that the doctrine that a resort to the absurdities or inconvenience to flow from an act may be bad in construing it, does not apply, unless the statutory terms are, in themselves, doubtful, obscure and ambiguous. And in the case of The People v. Wilson, 72 N. C. 155. the court start out with the declaration that the words of the statute to be construed, “taken by themselves, are too indefinite to have any particular meaning.”
It is quite true, that in the case of Board of Works &c. v. Spackman, L. R. 13 Q B. 758, relied on by the Chief Justice, Brett, Master of the Rolls, held that the consequences might be looked to in construing a statute which is plain and unambiguous, since, as he argued, the legislature could not be said to have meant what it had clearly expressed, and he proposed to give a meaning to the act in consonance with his views as to what the law should have provided ; but his associates on the Queen’s Bench, Bowen and Pry, constituting a majority of the court, repudiated this doctrine in toto, held precisely the contrary, and judgment went accordingly.
It would seem that no better or additional authorities, than those relied on and quoted from by the Chief Justice, are needed to put our position in this regard beyond the pale-cf controversy; but we cite, without further comment, the following, each one of which is directly in point to the proposition. that when the terms of an act are plain and unambiguous, they must be so expounded and executed, wholly regardless of the court’s views as to the inconveniences, or even absurdities, to result from giving effect to the statute according to its terms. — Sutherland on Stat. Cons., § Abbey v. Dale, 73 E. C. L. Rep. 390; Douglass v. Freeholders, 38 N. J. L. 214; Rex v. Commissioners, &c., 6 A. & E. 7 ; Clark v. R. R. Co., 81 Me. 477; Dudley v. Reynolds, 1 Kan. 289; Bartlett v. Morris, 9 Port. 268; Maxwell v. State, 89 Ala. 150.
It would be an unsafe innovation, beyond judicial discretion, to use a rule of law, intended as an aid to interpret-*659laws of confused or doubtful meaning, to beget a doubt in the statute by reference to extraneous matters, and then use this illegitimate product of the rule to defeat or thwart the clearly expressed intention of the statute.
Let us apply these ascertained and universally recognized principles to the statute under consideration. The act provides that “The office of Commissioner of Agriculture be hereby declared elective.” It would be difficult to express the legislative intent in clearer and more unmistakable language. These words admit of but one construction, and that is, the office of Commissioner of Agriculture is thereby ■declared elective. The act further proceeds, “and that at the general election in 1892, and every two years thereafter, there shall be elected one Commissioner of Agriculture, whose term of office shall be t wo years.” We have examined the language as a whole, and the words used separately, and have been unable t,o discover, in either view, anything ■suggestive of a doubt or ambiguity. It does not occur to us, that the office of Agricultural Commissioner could be declared elective, and provision made for his election at the general election m 1892, in more simple, unambiguous and intelligible language. We take it, that there can be no doubt or confusion as to the meaning and purpose of tbe act.
Is there any doubt as to the time when the act shall go into operation ? We will test this contention also in the light of settled rules of construction, based upon sound principles of law as declared, not only by the decisions of this court, but those of the Supreme Court of other States.
In Illinois the constitution provides that “no public act of the General Assembly shall take effect, or be in force, until the expiration of sixty days from the end of the session at which the same may be passed, unless, in case of emergency, the General Assembly shall otherwise direct.” On the 27th day of January, 1853, the legislature of that State passed an act providing “that from and after the first day of March next, it shall not be lawful,” &c., to allow sheep and swine to run at large in certain named counties. The “first day of March next,” after the passage of this act — the legislature having adjourned meantime — was within the sixty days which the constitution required to elapse before the acts of that session went into operation, unless the General Assembly should otherwise direct. It would seem, at first glance, that this act did contain such direction, in that it, in terms, made •acts done within that time unlawful. But the Supreme Court of Illinois held otherwise, in the following language : *660“The object of this provision of the constitution no doubt was, to enable those who are to be governed or affected by a law, to become informed of its provisions, while at the same-time, in cases of emergencies, a discretion is vested in the legislature to dispense with this provision of the constitution, and direct that the law shall sooner go into operation. It may not be denied that this discretion can not be revised by the court, and that the General Assembly is the sole-judge of the emergency, which shall induce them to anticipate the constitutional period when a law shall go into operation. But such direction must be made in a clear, distinct and unequivocal provision, awd can not be helped out by any sort of intendment or implication.......In order to take an act out of the constitutional provision, the legislature must direct that the act, as a whole and entirely, shall take effect at a different time; and it is not sufficient, that certain parts of it, taken separately, give those parts effect at an earlier (or, I may add, a later) period. The legislature did not direct that this act should become an operative law before the time fixed by the constitutional provision” — Wheeler v. Chubbuck, 16 Ill. 361. And to the same effect is the case of The Board of Supervisors &c. v. Keady, 34 Ill. 293. So, in Missouri, where the general ruléis, that acts shall go into effect ninety days after their passage, unless a different time is fixed by the particular act, a provision that “subsequent to the passage of this act,” the law should be as therein declared, was held insufficient, though manifestly affording a strong inference thereto, to-bring the act into operation before the lapse of ninety days. Andrews v. St. Louis Tunnel Co., 16 Mo. App. 299. In New York, it is provided by statute that “every law, unless a different time shall be prescribed therein, shall commence and take effect throughout the State on and not before the-twentieth day after the day of its passage, as certified by the Secretary of State.” A statute was passed which, in its-first clause provided that, “After the passage of this act all property which shall pass by will,” &c., &c. The act was-passed on June 10th, 1885, and the question was whether it-took effect from its passage, or on the twentieth day thereafter, as provided by the general statute above adverted to. The court, holding that the language of the act was-not sufficiently explicit to amount to a prescription of a different time than that fixed by the general law, said : “Experience has shown that it is of the highest importance to-every interest that the precise time when a statute takes effect shall not be left in doubt. To effect this important *661purpose, the twelfth section was enacted, and it should control all subsequent statutes, which do not prescribe in precise terms the exact time when they shall take effect. So' important is certainty in this respect that, when it has been established by usage, by a constitution, or by a general law,, that statutes shall take effect at a. specified/time, unless otherwise prescribed in the statutes, that courts will not presume an intent to change the general rule, unless the legislative intent is expressed in unambiguous, language.” In the matter of Howe, 55 N. Y. S. C. 235, (citing the authorities referred to above, and the following: Rice v: Ruddiman, 10 Mich. 125; Harding v. People, 15 Pac. Rep. 727; Lutless v. Holmes, 4 T. W. 660; Bishop Stat. Cr., § 31). And this case was affirmed by the court of appeals of New York. — 112 N. Y. 100.
In his attempt to meet and parry the overwhelming reasoning and force of these authorities, the Chief Justice laid great stress upon the fact “that the principle involved aros’e out of a constitutional provision, a law which the legislature could not change.” The Chief Justice gave no reason, nor cited any authority why a constitutional provision should be more binding or construed differently in this respect, than an act of the legislature, and we think none exist. Furthermore, the Chief Justice, speaking for the majority, fully concurs with the opinions delivered and conclusions-reached in the cases of Andrews v. St. Louis Tunnel Co., 16 Mo. App. 229, and In re Howe, 55 N. Y. S. C. 235, (s. c. 112 N. Y. 100), upon which we rely. He says : “And the cases cited from Missouri and New York we fully approve.”' Now, in those cases, no constitutional provision was involved. On the contrary, the rule fixing the time for statutes to take-effect in each of those States is declared by a general statute,, as in Illinois it is declared by the Constitution, and as in Alabama it is declared by the decisions of this court, handed down in the first years of our Statehood, and always since adhered to and acted on; and in the New Tork case, which, the Chief Justice “fully approves,” it is expressly declared-that whether the rule arises “from a usage, a Constitution, or a general statute,” statutes will become operative at the time fixed by it, unless a different time is clearly expressed • in the particular statute, and that the legislative intent to fix a different time can not be inferred or arrived at arguendo from the mere fact that some provisions of the act take effect at a time other than that prescribed by the general-rule. The rule is essentially the same in Alabama. In the case of the State v. Click, 2 Ala. 26, it was held that a penal. *662statute took effect from the day of its passage, notwithstanding it contained a requirement that the Secretary of State ■shall cause this act to be published for three months in the papers of “several named cities. The Court, by Collier, C. J., said : “In the case of the Administrators of Weatherford v. Weatherford, (8 Port. 174), the Court said: “A statute, according to the settled rule in the courts ’of the United States of the Union, where no time is fixed for the commencement of its operation, takes effect from its passage. This rule may sometimes operate harshly ; yet it is now too firmly settled to be changed in any mode than by legislation.” — Br. Bank of Mobile v. Murphy, 8 Ala. 119; Taylor v. State, 31 Ala. 383.
It can not be contended that the .statute under consideration itself fixes a time expressly when it is to take effect. The language used is such as we would expect to find, and such as is generally employed, when the intention of the legislature is to make it effective from and after its passage. It is the opposite of that used, and which we would expect to find, in an act intended to become operative only in futuro.
Concede for the argument, that the first clause of Section 1, “That the office of Commissioner of Agriculture be hereby declared an elective office” if standing alone, would give the act immediate operation, and that the latter clause, to-wit, “and that at the general election in 1892, and every two years thereafter, there shall be elected one Commissioner of Agriculture,” if alone, would show that the intention was to defer its operation until the time of the general election in 1892. We would then have two clauses in the same section seemingly at war with each other, as to the time when the act was to take effect. The rule of construction in such cases is clearly ascertained and declared. A statute must be so construed, if possible, as to give, some effect to. every clause, and not to place one portion in antagonism to another. A construction, which leaves to a sentence or clause of a statute no field of operation, should be avoided, if any other reasonable construction of the language can be given. — Lehman v. Robinson, 59 Ala. 219, and authorities cited; Ex parte Dunlap, 71 Ala. 73.
To hold that the latter clause of the act has the effect to defer the operation of every part of the act until the election in 1892 simply annuls the first clause and leaves it no field of operation.
Is not the true and better rule that declared in the Illinois, Missouri and New York cases, supra, where it is held, that *663although a part of an act may be so framed as to become operative at a dme not fixed by the general law, yet if other parts take effect under the general law at a different time, that part of the act which militates against the general law must yield ? There can be no question that if the act of February 18, 1891, had simply enacted as follows : “Be it enacted by the General Assembly that a Commissioner of Agriculture be elected at the general election in 1892, and every two years thereafter,” without more, the effect would have been to repeal by implication section 130 of the Code, making the office appointive, as effectively as the act with its present provisions. If this had been the full text of the Act of February 18, 1891, we are not prepared to say that it would go into operation before the time fixed for the general election. The advisory opinion of the learned justices of the Supreme Court of Massachusetts so largely quoted from by the Chief Justice, “hath this extent, no more:” They were simply construing an aiticle of the Constitution which declared that an election should be held, at a day named in the future; for the election of certain officers. The fact that the Constitution was to take effect from and after the proclamation of the Governor can exert no influence in its construction. This simply had the effect to make it law from and after that time, just as the approval of an act by the Governor. By the proclamation, in one case, and the approval of the Governor, in the other, the provision became law effective for the purpose intended, but whether intended to become practically operative eo instanti, or in the future, depended upon the statute or law itself, and not upon a proclamation or approval.
The constitutional amendment providing for the election of eight executive councillors contained in itself a provision that the legislature should re-district the State into eight council districts, before any election could be held to fill the office of councillors, and under the law, the regular session of the legislature, authorized to perform this duty, could-not meet until the following January. The amendment further provided that five of these councilmen, with the Governor, should count the votes to see who were elected as councillors under the new law. It will thus be seen that the act itself continued in the office of councilmen the then incumbents. So, in regard to the election of sheriffs, &c. The article provided for legislative action, before an election could be held to fill these offices. The fourth article, which provided for the election of Secretary, Auditor, &c., required no further legislation, and in this respect its provisions are *664«similar to the act under consideration. Now, observe the reason assigned by these learned justices, why the incumbents held on, and the power to fill vacancies by appointment continued in the Governor, until .filled by an election .held under the amended constitution. Their opinion rests solely upon the ground that “the present amendment, contained no express repeal of pre-existing provisions of the constitution; it repeals them by necessary implication by ■providing another and different mode of filling these offices, but it can not have that effect until it comes practically into •operation.” The opinion, on pages 603 and 604, concedes that if there had been any provisions in the constitutional amendments, annulling, revoking or repealing the provisions of the Constitution to be amended, the result would be different. It ■ proceeds entirely upon the ground that the repeal was effected by the practical working of the amendment, and not by any provision contained in the amendment, and therefore it did not supersede or annul that which (existed until the practical working began. This is precisely (our contention. The act of February 18, 1891, contained a «clause providing for an election in 1892, which by its practical working would have superseded and annulled section 130 of the Code, but the act has a further provision in it which, ex vi termini, repeals section 130, independent of the practical working of the act under the general election clause. It becomes necessary to wipe out the first clause of section one of the act of Febiuary 18, 1891, before the advisory opinion of the learned justices can apply. So long as the first clause remains a material constituent of the act, the advisory opinion is an authority in our favor. (It is direct to the proposition stated by us, that the effect of the latter clause of the act of 1891, without more, repeals by implication section 130 of the Code.)
The opinion of the court in this rests upon an untenable foundation. It labors to show that the first clause has no ■effective force or meaning. It refers to the conjunction •■“ and ” as connecting the first part of the act which declares the office to be elective, with the latter part, which fixes the time for holding the election, and summarily disposes of it by the statement, that no rule of law or grammar would authorize the construction that one part was to ■operate presently, and the other to be postponed. We assent to the conclusion, and as the whole acc is to go into operation at the same time, the question, whether the first part which is to take effect at once, under the general rule, ■or the latter part, which becomes operative later, and effects *665a repeal only by implication and by its working, shall govern the whole act. The Illinois, Missouri, New York and Alabama decisions, and opinion of the Justices of Massachusetts settle this question. The conjunction “ and ” will not down at such a “ bidding,” and ought not, in our opinion, to be so unceremoniously shoved aside. And ” does not mean “ or,” or imply that which precedes is the same as that which follows'. “ And ” signifies an addition, that something is to follow in addition to that which precedes. It is entitled to this consideration in the statute under consideration, whether section one be considered as composed of two clauses, or of one clause, containing two provisions referring to different matters, with conflicting intendments as to the time the act was to take effect. The same rule for its construction applies in either view. The argument is quite strained, which seeks to apply any other rule, either grammatical or legal to its construction. There is no rule of law, we confidently assert, which authorizes an entire disregard of any portion of the act, and unless this is done, as we have shown, the conclusion reached by a majority of the court can not be maintained.
The predominating intent of the act of Feb., 1891, is to make the office elective. The title shows this. The terms of the act are that the office be “ hereby declared elective,” and these words are as potent as if the act had used the term “ from and after the passage of this act.” The field of operation for this clause is to make the office elective from the date of the act, and not in the future, because that, field would be occupied by the latter clause in the absence of the first clause. This construction has no effect on the time fixed for the election of the Commissioner, which is. only provided for in the latter clause of this act. It comes; fully up to the rule declared in 59 Ala , and II Ala., supra, stated in a former part of this opinion, giving each clause a field of operation, and not placing one part in- antagonism-to another. The contention that such a construction is objectionable, because it gives the act a retroactive effect, is-not tenable. Any person who accepts a public office, accepts it Gum onere.
A public State office is not property, and no one has a vested right in it against the State. Every office of purely legislative origin continues by legislative permission. The incumbent holds as a mere tenant at will of the creative power. Before the expiration of his term, his compensation may be reduced, or cut off entirely. The office itself may be vacated or abolished. Courts may *666be averse to giving any act other than a prospective- operation, but when the legislative intent,is clear, within constitutional limits, the legislative- intent compels obedience, without regard to results. — Ex parte Lambert, 52 Ala. 79; Beebe v. Robinson, Ib. 66. “ Ita lex seripta est,, marks the constitutional domain of the judicial department.
Possibly this opinion should not be extended further, but we have considered the argument in' connection with the general statutes of the State in regard to filling vacancies by a special election, and, if we- are correct, in our conclusion, the argument ab inconvenient! is excluded for another reason.
There is no general provision in the statutes by which an Agricultural Commissioner could have been elected at a general election. It was, therefore, necessary to provide by statute for such election. There was a general law which provided for a special election, if “any vacancy occurs in any State or county office filled by election of the people, not •otherwise provided for.” — Sub-div. 4 of § 359 of the Code of 1886. This section does not-provide that the vacancy is to occur from any particular cause, or before or after there has been an election. The language is “any vacancy not otherwise provided for.” That the office of Agricultural Commissioner is and has been a State office, from and after its creation by the legislature of i 882-3 is not controverted; and if we are correct in the conclusion that the statute which declared the office to be elective went immediately into operation, a vacancy in a State office necessarily occurred, and there being no law otherwise providing for the filling of such vacancy, it is covered by the express language of section 359, sub-div. 4, of the Code. It was not necessary, therefore, for the legislature to provide by statute for filling the vacancy, which occurred from making the office elective. If the statute of February 18, 1891, had, in express terms, made provisions for filling the vacancy caused by its enactment, as provided by the general law for holding special elections to fill vacancies, it would not be contended that the vacancy could be filled in this way, and it would tend strongly to show that the act was intended to go immediately into effect. Construing the act of February 18, 1891, giving full force and effect to every clause in connection with the general law which fully provides for filling vacancies which occur in State offices not otherwise provided for, and which rendered further legislation unnecessary in this respect, we can not escape the conclusion, that the special election law does apply, and that, under its provisions, the *667vacancy should be filled. The objection to our position that the vacancy in the office of Commissioner could only be filled by the people at a special election proceeds, as far as we have been able to discover, upon two grounds only. In the first place, it is said that no special election to the office can be held before 1892 because the act provides for the holding of the first general election at that time. This is, to our minds, patently a non sequitur in itself. But the fallacy of the contention is entirely demonstrated in the fact, that the time of the second and every succeeding general election is as definitely fixed by the act as that for the first general election. And if the prescription of this time as to the first precludes a special election to fill the vacancy now existing, the like prescription as to succeeding general elections will for the same reasons prevent the filling of any vacancy after the first general election in 1892. But we understand the majority to concede that after the first general election, a vacancy may be filled by special election, notwithstanding the next election provided lor by the act is a general one to be held in 1894. It is most manifest to us that the admission destroys the argument. If a vacancy ever can be filled by a special election, it can be filled now.
The only other ground of objection- to our position in this regard is that it will cost the State a large sum of money to hold a spe'cial election. This argument applies with equal force, if it has any force, to the filling of vacancies occurring subsequent to the first election.
If, as stated in the opinion of the Chief Justice, it will cost the State a large sum to hold a special election, (of which there is no evidence in the record) to fill a vacancy under the special election-law, is that to be used as an argument to control the meaning of a statute which expressly and clearly declares the office to be elective ? Every authority cited precludes the argument when it is attempted to apply the rule to such a statute as this. It is far better that the principle of law which we contend for, be preserved as a safe-guard against encroachments on the will of the people, than to concede to the courts the power to raid the legislative department and defeat their will, under the pretext that there is a doubt as to the meaning of the statute, a doubt which finds existence purely in the assumption that its plain intention leads to unnecessary expenditure of a large sum of money. For these additional reasons we hold the argument ab inconvenienti falls to the ground, No more inconvenience or injury would result to the public welfare, than is liable to result at any time from a vacancy caused by the death or *668resignation of an incumbent, or a failure to elect a Commissioner at the general election, and which could be filled only t>y a special election.
Our conclusion, after laborious research and most careful examination of all the authorities, is that the office of Commissioner of Agriculture was vacated by the act of February 18, 1891, and the only authority to fill the vacany is by a special election.
We do not regard any action or indication that might be found in the journals of the two Houses of the General Assembly as proper to be considered in this connection; and we have neither investigated nor permitted them to exert .any influence in forming our conclusions as to the intention of the legislature.
Whether since the vacancy occurred, the office has been filled by a de facto officer is not before us, and is not considered. See Cary v. State, 76 Ala. 78, and auhtorities cited. It follows, that, in our opinion, the judgment of the lower Court should be affirmed.