dissenting:
I dissent.
On August 23, 1948, Judge Littler, now deceased, in Civil Action 7327 in the District Court of Mesa County, Colorado, entitled: “IN THE MATTER OF THE APPLICATION OF J. LEWIS FORD FOR AN ADJUDICATION OF HIS RIGHT TO THE USE OF ARTESIAN WATERS DERIVED FROM SUBTERRANEAN SOURCES IN MESA COUNTY, COLORADO, IN WATER DISTRICT NO. 42, and for the Adjudication of Rights in the Artesian Waters in said Mesa County for Domestic purposes.” entered a decree wherein findings were made and the rights of eighteen claimants were determined. The court found, in conformity with the requirements of C.R.S. ’53, 147-9-11:
“ * * * as to each appropriation claimed, the priority date to which the same is entitled to relate, together with the volume thereof, the purpose thereof, the source, the point of diversion * * * .”
Among other findings made are the following:
“ * * * the court further finds that Chapter 90, 1935 Colorado Statutes Annotated and acts amendatory thereof are applicable to this proceeding; that all notices required by law have been given; that hearings on proof of claims have been regularly continued from time to to time; that the notice required by law has been given *176to all parties or their attorneys; that the findings and the proposed decree have been filed with the clerk of this court and that notice was given that any objections thereto have been filed; that the court has jurisdiction to enter this decree under the statutes of this state as well as under the general equitable jurisdiction of the court.
* * *
“That the amount of water awarded to each of said wells under the absolute decrees herein made for domestic purposes has been placed to a beneficial use as in this decree found and determined, and the amount of water so awarded and decreed in each case is necessary, essential and beneficial for the purposes named and under the testimony and evidence taken and submitted in this proceeding such amounts of water have been appropriated, used and applied in each and every case, and that by reason thereof the claimants and parties lawfully entitled thereto have acquired a lawful and vested property right to the use of such water.
j|í * *
“The wells involved in this proceeding are bottomed in three separate and distinct sands: the upper sand is known as the Morrison Sand, the second sand down is known as the Entrada Sand and the bottom sand as the Wingate Sand. These sands have no connection with each other and are separated by an impervious structure so that no water seeps or percolates from one to the other. The water contained in these sands is not tributary to any natural surface stream. All of the wells involved in this proceeding are located within the exterior boundary lines of Water District No. 42. Inasmuch as the three sands involved constitute separate sources of water, the wells bottomed in each sand respectively are given separate priorities, and each sand should be considered in effect a separate district. The legislature not having at this time assigned a number to designate these sands as separate districts, they should *177be designated as zones within Water District No. 42, and accordingly, the Morrison Sand is designated as Zone No. 1 in Water District No. 42, the Entrada Sand as Zone No. 2 in Water District No. 42, and the Wingate Sand as Zone No. 3 in Water District No. 42.
“Since there has never been a prior adjudication of wells in Water District No. 42, the priorities herein shall begin with No. 1 in each sand or zone of District No. 42. Any decree which is conditional shall have suffixed to it the letter ‘C’ to designate it as conditional.
* * *
“All water for which priorities are awarded in this proceeding shall be used for domestic purposes which shall include water for livestock. The owners of the priorities shall have the right to sell said water for domestic purposes off the premises, including the right to pipe the same to points off the premises whereon said wells are located.” (Emphasis supplied.)
No steps have ever been taken to modify, set aside or review this decree.
On January 8, 1957, eight of the above mentioned claimants (to whom I refer as plaintiffs), who were decreed priorities in the above mentioned proceedings, commenced this action. They named as defendants (1) twenty-eight persons or firms, who they allege have no decreed or other rights to take water from plaintiffs’ sources, who are taking water therefrom and depleting plaintiffs’ decreed sources of supply; (2) ten of the above mentioned claimants, who were decreed priorities in the above mentioned proceedings, who refused to join as plaintiffs in this action and were named as defendants; (3) the State Engineer, the Division Engineer and the Water Commissioner of Water District No. 42, and (4) “All Unknown Persons who claim any interest in the subject-matter of this action.”
Plaintiffs sought the following relief:
1. An injunction directing the State Engineer, the Division Engineer and the Water Commissioner of Water *178District No. 42 to recognize and enforce the 1948 Littler Decree.
2. A permanent injunction enjoining the twenty-eight named defendants without decreed rights from taking any water from the source of plaintiffs’ supply and specifically through or by means of twenty-four named wells.
3. An order to compel the owners of any and all wells: “ * * * to properly cement, case and equip the same with valves so as to prevent leakage, waste or unauthorized withdrawal of water therefrom.”
On July 31, 1957, the state water officials filed a motion to dismiss plaintiffs’ complaint, setting forth as grounds therefor:
“ * * * that these defendants are joined only in their official capacities; that in such capacity they have no duty under Colorado law to administer any decrees establishing rights to the use of water except decrees establishing rights to the use of the public waters of the State of Colorado; that the complaint and the decree of this court in Civil Action No. 7327 (Littler Decree) * * * conclusively show that the said decree is not one for the use of the public waters of the State of Colorado; and that, therefore, the complaint does not state a claim against these defendants upon which relief may be granted.”
This motion was, on October 7, 1957, overruled and on October 16, 1957, these defendants filed their answer wherein:
1. They admit certain allegations of plaintiffs’ complaint, and deny others;
2. as affirmative defenses, allege that the plaintiffs have not exhausted their administrative remedies under the statutes of the State of Colorado;
3. that the complaint does not state a claim upon which relief may be granted and “that the Court is without jurisdiction over the subject matter of this action.”
*179On March 4, 1957, a MOTION TO DISMISS plaintiffs’ action was filed by “ * * * defendants herein who are represented by their respective attorneys and who are appearing specially for the purpose of this Motion only, * * * .”
Urged as ground for dismissal is the following:
“That this Court has no jurisdiction of said supposed cause of action set forth in the Complaint herein for the reason that the purported decree of this Court of August 23, 1948, determining that that Court had jurisdiction to adjudicate rights in artesian waters in Mesa County under the statute of this State and its equitable powers was null and void and without the powers of this Court under the Constitution and Statutes of this State.”
This motion was finally overruled on October 9, 1957, and the defendants were given ten days to answer, “unless some Defendant desires to stand on Motion to Dismiss * * * .” Significantly not one defendant saw fit to stand on his position that the Littler decree was void.
On June 30, 1958, twenty of the defendants, some having decreed rights, others having wells but no decreed rights, filed an answer wherein they set forth that:
1. The complaint does not state a claim;
2. admit certain allegations of the complaint and deny other allegations;
3. (as an affirmative defense) allege that the plaintiffs are using more water than was decreed to them and for purposes other than designated in their decrees (a position wholly inconsistent with the contention that the Littler decree is void).
They pray that plaintiffs’ complaint be dismissed and that they be awarded such relief as may seem proper to the court.
On October 16, 1957, McCoy Company, owner of an unadjudicated well, filed its answer wherein it admits most allegations of plaintiffs’ complaint and denies other allegations. It prays that plaintiffs’ complaint be dismissed and that it be awarded costs and general relief.
*180On February 13, 1957, Holly Sugar Corporation, named as a defendant, owner of a well with a decreed right, filed its separate answer wherein it sets forth the terms and extent of its “No. 2 Priority as of October 1, 1923, from the Wingate Sand * * * .”
It asks for “ * * * judgment and relief as it may be entitled to herein.”
On October 25, 1957, defendant Fleck, owner of a well with a decreed right, and defendant Reinhardt, owner of a well with no decreed rights, filed a document labeled as a joint “STATEMENT OF POSITION” wherein they assert that the Littler decree is valid and binding upon all parties to this action. They allege that their statement shall not be construed as an admission or denial of any issues in the case.
Eight other defendants, all of whom were duly served with process, failed to enter any appearance and their default was duly entered on February 28, 1961, prior to trial.
Judge Hughes, who was then presiding over the case, in his order denying defendants’ motions to dismiss on the ground that the Littler decree was void, stated among other things:
“Judge Littler, now deceased, took jurisdiction of the petition and the subject matter involved, and after taking evidence entered a decree which fixed priorities for certain wells, which are those owned by plaintiffs in the present action and their predecessors in interest. This decree reads, and provides in part as follows: ‘That the Court has jurisdiction to enter this decree under the statutes of this state, as well as under the general equity jurisdiction of the Court.’
“The Court states that the wells involved are bottomed in three separate and distinct sands; that the waters contained in these sands are not tributary to any natural surface stream; that each sand involved constitutes a separate source of water. The decree contains thé usual provisions about economic use of water, etc.
*181“Judgment was then given by decrees to the various wells involved. These decrees stated the purpose of use; the stratum of sand from which it was taken; and the amount of water decreed, both absolute and conditional.
“The question before the Court is whether these decrees are valid in law.
“The Case of Coffin vs. Left Hand Ditch Company, 6 Colo. 443 is the first to discuss water rights applicable to the State of Colorado. Judge Helm states in this decision; that the common law doctrine of riparian ownership is inapplicable to Colorado. ‘Imperative necessity, unknown to the countries which gave it birth, compels the recognition of another doctrine in conflict therewith. And we hold that, in the absence of express statutes to the contrary, the first appropriator of water from a natural stream for beneficial purposes has, * * * a prior right thereto, to the extent of such appropriation.’
“ ‘The doctrine of priority of right by priority of appropriation for agriculture is evoked, as we have seen, by the imperative necessity for artificial irrigation of the soil.’
“We therefore find that the Colorado Supreme Court did recognize that through necessity, throughout our state, water could be appropriated and priority of appropriation recognized without reference to legislation upon the subject. It is true that Judge Helm was talking about the waters of natural streams, and that it was these waters that were involved. It is also true that he refers to ‘custom.’ In the Court’s opinion, this does not detract from the proposition that it was recognized that appropriation of water could be made and protected by the Court in the absence of legislation to the contrary.” (Emphasis supplied.)
* * *
“Our present irrigation statutes provide for the hearing, adjudicating and settling of all questions concern*182ing the priorities of appropriation of water between owners and claimants of water rights drawing water from the same source within the same water district, and all other questions of law flowing out of, or in anyway involved or connected therewith.
“It also recognizes sources of water as being natural streams, systems or other sources of water.
“The previous statute, C. S. A. Chapter 90, Section 158 concerning the same subject matter, provides that any one or more persons, associations or corporations interested as owners of any ditch, canal or reservoir should have their priority of right adjudicated, and further provides that the adjudication of priority of rights should be to the use of water for irrigation between the several ditches, canals and reservoirs.
“We therefore see that the legislature has changed the law of adjudication of priorities, or questions upon which the court in adjudication proceedings has jurisdiction, from those owning an interest in a ditch, canal or reservoir, to ‘hearing, adjudicating and settling all questions concerning the priority of appropriation of water between owners and claimants of water rights.’
“On its face our last statute, which was enacted in 1943, would cover adjudication of all priorities to the use of water to which the rights of priority by use could be made. And certainly this would apply to underground water as well as to surface water.
:|: * *
“The Court further concludes that the language of our adjudication proceedings as contained in the 1943 statutes is broad enough, and was intended by the legislature, to cover all water in the State of Colorado.”
In my opinion Judge Hughes’ analysis of the problem and resolution thereof is correct.
A pretrial conference was held on October 19, 1960, at which time Judge Kempf entered an order stating the issues and his view of the law governing the case. He set the case for trial on May 1, 1961.
*183Trial was to the court which, among other things, found the following facts:
“6. The aquifers in question are relatively impermeable and the movement of water through them is very slow. The basin, which is closed, is very large and some of the aquifers are very thick. It is impossible with present knowledge to calculate the refilling rate, but it is very slow. Due to the depth of the aquifers, the low storage capacity per cubic foot of rock, and the low transmissability, the cost of drilling wells compared with the amount of water recovered has restricted the use of this water to domestic or industrial purposes rather than irrigation.
“7. In the event that a senior decreed appropriator cannot obtain his water from his well by deepening it and pumping, then it is the duty of the water officials, on demand, to close down junior wells in proximity until the senior appropriator can obtain his water.” And stated:
“As to the law applicable, the Court concludes:
1. The underground waters are public and subject to private appropriation by putting to beneficial use, and the decree adjudicating, priorities is valid.
2. The right acquired by an appropriator is the right to divert water at the well location in the zone in which it is bottomed for such beneficial use.
3. It is contrary to the law to waste this water when it is brought to the surface or to alter the natural conditions by drilling, operating or maintaining any well which allows water to flow from one formation of greater pressure to one of less pressure, whether by perforating casing in more than one formation or because of leakage around the casing of a well or lack of casing.
4. There is no vested right in the maintenance of artesian pressure and a senior appropriator is not injured if he is required to deepen or enlarge his well or to in*184.stall a pump so long as he can thus obtain his decreed or appropriated amount of water.
5. This is an action in personam and not in rem.
6. The State Engineer and subordinate water officials are under the duty imposed by existing statutes to administer the water of these aquifers and enforce priorities decreed thereto as in the case of diversions from public streams of this state, and to require the persons owning or possessing such wells (1) to install shutoff valves or devices to enable the flow to be cut off, (2) to case and cement each well or take such other action as is necessary to prevent the running of water from one formation to another, (3) to cease all waste of water from such wells after it reaches the surface, (4) to install a meter on each well to measure the quantity of water taken therefrom, (5) to allow the performance of such tests or measurements as may be required to determine from time to time the hydrostatic head or other facts concerning such well. The State Engineer and subordinate water officials are under the duty to make and maintain records of the data obtained regarding each such well.
7. In the event that a senior decreed appropriator cannot obtain his water from his well by deepening it and pumping, then it is the duty of the water officials, on demand, to close down junior wells in proximity until the senior appropriator can obtain his water.”
The Decree provides:
“1. That the decree entered in Civil Action No. 7327 in this Court on August 23, 1948 is valid and in full force and effect as a decree fixing priorities for the use of public waters in the Entrada, Morrison and Wingate sandstones underlying lands in Mesa County, Colorado.
“2. That defendants J. E. Whitten, State Engineer of Colorado; Frederick W. Paddock, Irrigation Division Engineer of Division No. 4; and Woodrow W. Saunders, Water Commissioner of Water District No. 42, are here*185by ordered to control and administer said underground waters and wells in the same manner and to the same purpose as in the case of diversions from public streams of the State of Colorado. In particular, but without limitation thereto, they shall require persons owning or possessing such wells to do the following:
(a) To install shutoff valves or devices to enable the flow to be cut off.
(b) To case and cement each well or take such other action as is necessary to prevent the running of water from one formation to another.
(c) To cease all waste of water from such wells after it reaches the surface.
(d) To install a meter on each well to measure the quantity of water taken therefrom.
(e) To allow the performance of such tests or measurements as may be required to determine from time to time the hydrostatic head or other facts concerning such well; and said officials shall make and maintain records of the data obtained by them regarding each such well.”'
3. That the following named defendants “* * * are hereby permanently enjoined and restrained from doing or. allowing to be done any of the following:
A. Wasting any water brought to the surface in any well owned, possessed or controlled by them from any of the water-bearing formations known as the Entrada, the Morrison and the Wingate sandstones.
B. Possessing or maintaining any well in which water may flow from one of said water-bearing formations into another, or into any other formation underground.
C. Taking water from any well or allowing the same to flow from such well when such depletion of water shall cause the owners of senior decreed water rights to be unable to divert their decreed amounts of water by pumping from a well extending through the depth of the formation from which said water is decreed.
D. Failing or refusing to comply with orders of the *186State Engineer of Colorado and subordinate water officials made pursuant to this decree.”
The only parties who have entered an appearance here are the official defendants and the plaintiff Ford, the same Ford who applied for the adjudication before Littler.
The official defendants contend that the waters involved are such that the doctrine of prior appropriation cannot logically be applied thereto and that there is no legislative duty on them to control or administer such waters or to carry out the trial court’s ruling. They urge that this court correct the errors of the trial court and announce the law applicable in circumstances such as we have here. Ford urges that the judgment be affirmed.
So far as the record before us discloses, not one of the eight plaintiffs or the thirty-eight nonofficial defendants who had their respective rights and duties adjudicated by Judge Kempf in this case has ever voiced any disapproval of his decree or taken any steps to have the same vacated or modified.
In the majority opinion it is stated:
“The controlling question which we are called upon to determine is, whether the doctrine of prior appropriation of water to beneficial use is applicable to underground waters which are not tributary to any natural stream, and so results in a priority of right to the water thus used.”
I do not accept the foregoing statement as the problem presented for our determination.
That problem was resolved by Judge Littler in 1948. All of the parties to that proceeding, also all of the parties to this proceeding whose rights and duties were adjudicated by the trial court, have been made parties here, and all (except the plaintiffs in error) have been summoned to appear in this court, as provided by Rule 111 (e), R.C.P., Colo. Ford and none other has appeared and he urges that the judgment be affirmed.
Plaintiffs in error seek reversal of that portion of the *187judgment which orders them to do certain specified acts in connection with administering the waters decreed to the various well owners.
In my humble opinion the controlling and only question properly before us for consideration is the correctness of that part of the judgment directing the water officials to do certain acts “* * * in the same manner and to the same purpose as in the case of diversions from public streams of the State of Colorado.”
The majority opinion, in outlining the duties of the state engineer and his subordinates, refers to C.R.S. ’53, 147-11-1, 3 and 6. The foregoing legislative directives were adopted in 1889. They may well have been adequate in 1889 when the state was in its infancy and underground and ground waters were a matter of little or no concern to anyone. However, as hereinafter pointed out, his duties were substantially increased by the 1957 “Colorado Ground Water Law.”
The majority opinion deals extensively with “the legislative history of the Ground Water Law of 1957,” and it would seem may well have predicated its decision on inferences drawn from the fact that the legislature rejected and struck certain proposals from the initial draft of the act. I do not subscribe to that line of reasoning. What a legislative body does not do does not change the course of human events. In 1957 the legislature did adopt the “Colorado Ground Water Law.” Inferences drawn from inaction of the legislature in certain areas must yield to its positive pronouncements. There are several pronouncements in the 1957 act which in my opinion are very pertinent in resolving the problems presented to the trial court, language which indicates an intention to confirm the holdings of Judges Littler, Hughes and Kempf, that all migrant waters are public waters and subject to appropriation, as are the waters of flowing streams, sanctioning the court’s directions to the state engineer.
*188In this respect I consider the following provisions of the act as highly significant:
1960 Perm. Supp., C.R.S.:
“147-19-1 Definitions. — (1) The term ‘user’ as used herein shall mean any individual * * * making a beneficial use, or taking steps or doing work preliminary to making a beneficial use of underground waters of Colorado.
“ (2) The terms ‘underground water’ and ‘ground water’ are used interchangeably in this article and refer to any water not visible on the surface of the ground under natural conditions.
“(3) The term ‘aquifer’ means a geological formation that contains or transmits ground water.” (Emphasis supplied.)
“147-19-2. (1) Existing ground water uses shall be as fully recognized as if this article had been in force at the time of their initiation. Within three years after the effective date of this article, however, all users of ground water shall file statement of their use with the state engineer, setting forth such information as may reasonably be required by the state engineer for the proper administration of this article, including but not limited to the following: * * * the location of the well or tunnel or other means of diversion * * *; the nature and extent of use; * * * the date when work on diversion facilities was commenced, and the date when water was first applied to a beneficial use * * *.
“(3) The state engineer shall file and preserve such statements and make a record thereof in his office so indexed as to be useful to users in determining the extent of use made from various water sources, and shall issue a permit for each use. Failure to file a statement of use * * * shall be prima facie evidence of an intent to abandon such use; and in administering the underground waters of this state * * * the state engineer may disregard any use not so filed.” (Emphasis supplied.)
*189“147-19-5. (1) From and alter the date this article becomes effective, no new wells shall be drilled, nor the supply of water from existing wells increased or extended, unless the user shall make an application in writing to the state engineer, for a ‘permit to use ground water,’ setting forth * * * the proposed use for which the use is intended, the date of the initiation of the use * * (Emphasis supplied.)
“147-19-6. The state engineer shall provide regulations under which an existing well may be modified by change of the well itself, the pumping equipment therefor, by the drilling of a substitute well, or otherwise in order to make it possible for the owner of a well to obtain the water to which such owner is entitled as initiated by the original well.” (Emphasis supplied.)
“147-19-9. The priority date of a ground water appropriation shall not be postponed to a time later than its true date of initiation by reason of failure to adjudicate such right in a surface water adjudication.” (Emphasis supplied.)
“147-19-10. (1) The state engineer * * * shall have power to regulate the drilling and construction of all wells in the state of Colorado * * * to prevent the waste of water * * *.
“(2) If the state engineer finds any well to have been drilled or maintained in a manner or condition contrary to any of the provisions of this article or the regulations issued hereunder, he shall immediately notify the user in writing of such violation and give him such time as may reasonably be necessary, not to exceed sixty days, to correct deficiencies. If the user fails or refuses to make the changes within the allowed time the state engineer is authorized to enter upon his land and do whatever is necessary that the user comply with the provisions of this article or regulations issued hereunder.”
In the foregoing legislative pronouncements are many words peculiarly adapted to our procedures leading up to the acquisition of a decreed priority to the use of public *190waters. To mention some: “beneficial use,” “diversion,” “date when diversion facilities was commenced,” “the date when water was first applied to beneficial use,” “evidence of an intent to abandon such use,” “the date of the initiation of the use,” “to obtain the water to which such owner is entitled as initiated by the original well.” These words are common parlance in water adjudication proceedings; they are meaningful and cannot be ignored or their force minimized because the legislature saw fit to not use other proposed words.
The majority opinion contains the following:
“The legislative history as above stated shows that the legislature attempted to remove any doubt as to its intentions and that it contemplated under the provisions of this bill that there would be an equitable and efficient use of nontributary underground water not pursuant to any theory of appropriation(My emphasis.)
The fact that the legislature said:
“The priority date of a ground water appropriation shall not be postponed to a time later than its true date of initiation by reason of failure to adjudicate such right in a surface water adjudication.” (Emphasis supplied.) impels me to a conclusion not in keeping with that expressed by the majority.
I find great difficulty in determining from the record before us the nature of the waters involved. Judge Littler found that “the water contained in these sands is not tributary to any natural surface stream.” Whether the word “surface” was used advisedly and for a purpose is not disclosed by the record. Certainly the water was not tributary to a surface stream — yet it might well be tributary to a stream. Further confusion as to the nature of the waters involved arises out of testimony and comments and findings of the trial court in this case. Statements to the effect that the water moves slowly through relatively impermeable aquifers, that percolation is very slow, replenishment and recharge requires a long period *191of time, and there was not available any practical means of computing the recharge rate. All of which creates in my mind grave doubts as to whether the waters are tributary. If moving, however slowly, they are going somewhere, they are seeking lower ground and presumably are tributary. They are here today and gone tomorrow, which is inconsistent with any contention that they are a part of the lands.
The 1957 Colorado Ground Water Law, in defining “aquifers” and “ground water,” would seem to have contemplated this exact situation. In defining an aquifer as “* * * a formation that * * * transmits ground water,” the legislature has negated the idea of a closed basin. In defining ground water as “any water not visible on the surface of the ground,” the legislature does not exclude ground waters that might be tributary.
In the case before us the waters are in an aquifer, where they are transmitted, are being replenished, and they are subject to the rule stated in Safranek v. Limon, 123 Colo. 330, 228 P. (2d) 975:
“* * * Under our Colorado law, it is the presumption that all ground water so situated finds its way to the stream in the watershed of which it lies, is tributary thereto, and subject to appropriation as part of the waters of the stream. DeHaas v. Benesch, 116 Colo. 344, 181 P. (2d) 453. The burden of proof is on one asserting that such ground water is not so tributary, to prove that fact by clear and satisfactory evidence. * * *.”
I do not agree that the Littler decree is void. The waters involved, public or private, are in Water District No. 42, the district over which Judge Littler presided. Certainly he, if anyone, had jurisdiction over the subject matter. Certain parties, including Ford, sought to have their respective rights to water adjudicated. The court had jurisdiction over the parties voluntarily appearing before him and also those brought before him by proper process. There was no other place for the parties to go to *192have their respective claims to the waters involved determined.
In the majority opinion it is stated:
“* * * the * * * decrees entered by Judge Littler * * * were void [1] for want of jurisdiction over the subject matter and [2] for a lack of power to adjudicate such rights.”
It would seem that the subject matter was the water and clearly it was subject to his jurisdiction, just as land, minerals, cattle or other property in his district. Possibly the majority opinion, in speaking of subject matter, refers to water adjudication proceedings — clearly he had statutory authority and duty to conduct such proceedings and, according to the pronouncement of this court in Coffin, et al., v. Left Hand Ditch, supra, he could conduct adjudication proceedings without statutory authority.
Judge Littler was duty bound to resolve matters brought before him. Here, one of the problems presented was to decide whether the waters involved were subject to appropriation and decree. Apparently the majority take the position that he had jurisdiction to say “No,” but lacked jurisdiction to say “Yes.” To that I do not subscribe.
The judgment should be affirmed.