Atkinson v. State Tax Commission , 156 Or. 461 ( 1936 )

Argued on rehearing February 18; former opinion reversed and lower court affirmed April 6, 1937 ON REHEARING (67 P.2d 161) In Banc. AFFIRMED. Oral argument on the rehearing of this matter, following granting of petition of the defendants and respondents, State Tax Commission and members thereof individually, was practically limited to the question of whether the federal government has exclusive legislative jurisdiction over the site, within territorial limits of the state of Oregon, of the Bonneville dam project. The other contention stressed by the plaintiffs and appellants in their original briefs and at the first hearing, and decided adversely to them in our former opinion, was that in the work which they had performed in construction of the Bonneville dam they had acted as an instrumentality or agency of the federal government and that therefore their income derived from payment for such work was not subject to be taxed by the state of Oregon as personal income of the plaintiffs, co-partners who are non-residents of the state of Oregon. This contention, although not urged on the rehearing, was not abandoned. We shall not discuss the matter further, except to say that we adhere to our former opinion in this regard, further supported by the recent decision in Silas MasonCo. v. State Tax Commission, 188 Wn. 98 (61 P.2d 1269).

The Bonneville dam project extends from the banks of the Columbia river on the Washington side, across the main or north channel of the river, thence across Bradford island and the south channel of the Columbia river, known as Bradford slough, to the banks of the river in the state of Oregon. The territorial boundary of Oregon at the north is "the middle channel of said river, and, where it is divided by islands, up the middle of the widest channel thereof," which widest channel at this point is the water between Bradford island and the Washington banks.

The entire area of Bradford island was acquired by the federal government, either by purchase or condemnation. An extensive tract of mainland was also acquired by the federal government on the Oregon side of the river adjoining Bradford slough, some of which land was used in connection with construction of certain units of the dam works, and other parts were reserved for present use by army engineers and other federal employees engaged in work on the dam, for residence purposes, and for later occupancy by those having charge of the operation and maintenance of the power house and locks. The record does not show what lands in the state of Washington, if any, were acquired for this project. Construction of the dam is under the direction of the war department of the United States.

The major unit of the dam structure is built across the main or north channel of the Columbia river between Bradford island and the Washington banks and is some distance upstream from the combined dam and power plant being constructed across the south channel, or Bradford slough. At the site of this latter structure the south channel is some 275 feet to 350 feet wide, measured between the meander lines as run by federal surveyors. The record does not disclose the distance from bank to bank during average high water.

The appellants early in 1934 entered into a contract with the United States through the war department "for the furnishing of all plant, labor and materials, and performing the work in construction and maintenance of earth cofferdams, construction of cofferdams, sluice-way, construction of grade crossing, grading of roadway and excavation and removal of earth for site of power house and navigation locks on the Columbia river" on land of the federal government and the bed of Bradford slough, designated as the Bonneville dam project. Their contract with the government was performed prior to the institution of this proceeding.

In the construction of the south unit of the dam, and this is also probably true of the north unit, it was necessary to build cofferdams on each side of the permanent structure. In the Bradford slough area one of the cofferdams is approximately 600 feet upstream from the permanent dam structure, and the other is some 800 feet downstream. The map which was introduced as an exhibit shows that each end of the dam and power plant in Bradford slough has been built on lands purchased by the federal government, at the north on Bradford island and at the south on the Oregon mainland. The locks and the canal in connection therewith are constructed at the south of the dam across Bradford slough and to some extent over and across property purchased and owned by the federal government.

In the former opinion it was held that the federal government had exclusive jurisdiction over the site of the Bonneville dam project in the state of Oregon and that the profits realized by plaintiffs from the performance of their contract were not subject to taxation by the state of Oregon. This is the only question here involved. In arriving at a solution of the problem it is, however, necessary to determine whether or not the federal government had, during the time that plaintiffs were engaged in performing their contract, exclusive legislative jurisdiction over the entire area, within the territorial limits of the state of Oregon, of the Bonneville dam project or certain parts of it.

Article I, § 8, of the constitution of the United States, provides that "Congress shall have power . . . to exercise exclusive legislation in all cases whatsoever, over such district (not exceeding ten miles square) as may, by cession of particular states, and the acceptance of Congress, become the seat of government of the United States, and to exercise like authority over all places purchased by consent of the legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dockyards, and other needful buildings."

The major part of the dam structure is built upon land underlying the waters of the two channels of the Columbia river. It is being constructed for the purpose of aiding navigation and for the development of hydroelectric power. The height of the dam has necessitated construction of parts of the base thereof upon the banks of Bradford slough and the banks of the Columbia river in Washington and Oregon.

Both channels of the Columbia river within the Bonneville dam project are navigable waters. And since they are navigable, the soil underneath them below ordinary high-water mark within the territorial limits of the state of Oregon belongs to this state: State v. Imlah, 135 Or. 66 (294 P. 1046); Cook v.Dabney, 70 Or. 529 (139 P. 721); United States v. Utah,283 U.S. 64 (75 L.Ed. 844, 51 S.Ct. 438); Pollard's Lessee v.Hagan, 3 How. 212 (11 L.Ed. 565); Shively v. Bowlby, 152, U.S. 1 (38 L.Ed. 331, 14 S.Ct. 548).

The title to lands under the water of these channels within the territorial limits of the state of Oregon has not been acquired by the federal government from the state of Oregon by purchase, condemnation or otherwise. Nor has the state of Oregon ceded to the national government exclusive legislative jurisdiction over the waters of these channels.

In United States v. Bevans, 3 Wheat. 336 (4 L.Ed. 404), a question arose as to whether the state of Massachusetts or the United States had jurisdiction over a crime committed on a warship "lying at anchor, in the main channel of Boston harbor". In his opinion therein, at page 385, Chief Justice Marshall said:

"What then is the extent of jurisdiction which the state possesses? We answer, without hesitation, the jurisdiction of a state is co-extensive with its territory; co-extensive with its legislative power. The place described is unquestionably within the original territory of Massachusetts. It is, then, within the jurisdiction of Massachusetts, unless that jurisdiction has been ceded to the United States."

In considering the question of whether the state of Oregon has legislative jurisdiction over the waters of Bradford slough and that part of the north channel of the Columbia river within the territorial boundaries of the state, some assistance may be had from the decision in Gromer v.Standard Dredging Company, 224 U.S. 362 (56 L.Ed. 801,32 S.Ct. 499). In that case there was a dispute as to the power of Porto Rico to tax certain machinery and boats which were in the harbor of San Juan engaged in dredging operations in pursuance of a contract with the United States government. The opinion pointed out that the purpose of certain federal legislation was to give to Porto Rico local self-government and to confer on that insular possession "an autonomy similar to that of the states and territories, reserving to the United States rights to the harbor areas and navigable waters for the purpose of exercising the usual national control and jurisdiction over commerce and navigation". Then followed this pertinent statement, "The United States could have reserved government control and exercised it as it does in instances, by the consent of the states, over certain places in the states devoted to the governmental service of the United States." The court further held that such reservation had not been made by the federal government, and concluded that Porto Rico had jurisdiction to tax the personal property hereinbefore mentioned. Three of the justices dissented on the ground that the property had not acquired a situs within the jurisdiction of Porto Rico for taxation purposes, yet as to the above proposition said: "We agree with the decision of the court that the territory of Porto Rico has jurisdiction for taxing purposes over the harbor and waters in question and that the use of the property for government purposes does not exempt it from taxation." The statements here quoted are significant, for the reason that the court was dealing with the matter of legislative jurisdiction over navigable waters. The only conclusion which can be drawn from the language of the majority opinion is that the federal government does not acquire exclusive legislative jurisdiction over the waters within the boundaries of the state, without consent of the state.

In Middleton v. La Compagnie Generale Transatlantique, 100 Fed. 866, the circuit court of appeals for the second circuit had before it the question of whether an administrator could maintain an action for damages sustained by the widow and next of kin in the case of a death due to negligence at a place in the harbor within three-fourths of a mile of Sandy Hook. The court, after pointing out that there could be no recovery in a court of admiralty under the general maritime law for loss of life, stated that it must be shown that the accident happened at a place within the legislative jurisdiction of some state whose law permits such recovery. The court predicated its conclusion in the case on the assumption, as contended for by the plaintiff, that the United States purchased "the island or cape of Sandy Hook from shore to shore, bounded on all other sides [than the south] by the sea and Sandy Hook Bay".

It was there held, however, that in purchasing this property the United States did not obtain any land below low-water mark. The court said:

"The purchase, if there was a purchase, and the act of cession, if it be susceptible of a construction which will bring it into harmony with the constitution, and thus make it a valid ``consent to the purchase,' gave to the United States the right to exercise exclusive legislation only in so much of the state of New Jersey as was thereby transferred. Over all other places within the limits of that state her legislative power remains as full and complete as it was before, except that it must be so exercised as not to destroy or impair the forts, arsenals, and other structures erected on the land transferred to the federal government for military or public purposes. The accident happened, as we have seen, upon inland waters which were within the limits of the state (conceded to be so by the neighboring state and by the United States) before the act of cession; and, since that act does not purport to transfer the locality in question, the public laws of New Jersey are in full force there, and were so at the time of the accident."

The above case was cited with approval by the supreme court of the United States in Hamburg-American Steamship Co. v. Grube,196 U.S. 407, 415 (49 L.Ed. 529, 25 S.Ct. 352), in the following language:

"Moreover, as was held by the circuit court of appeals for the second circuit, in Middleton v. La Compagnie Generale Transatlantique, 100 Fed. Rep. 866, the act did not purport to transfer jurisdiction over the littoral waters beyond low water mark, and for the purposes of this case the public laws of New Jersey must be regarded as obtaining there, whether enacted prior or subsequent to the cession."

In the case of Bigelow v. Nickerson, 70 Fed. 113 (30 L.R.A. 336) the circuit court of appeals, seventh circuit, had before it the question of whether a statute of Wisconsin giving the right of recovery for death from injury applied to a death which occurred on the waters of Lake Michigan. It was contended that the law was in conflict with the provisions of the constitution of the United States granting to Congress the power of exclusive legislation in all cases of admiralty and maritime jurisdiction. In holding that the Wisconsin act was not violative of this constitutional provision the court said:

"In the case of Illinois Cent. R. Co. v. Illinois,146 U.S. 387, 13 Sup. Ct. 110, and in the case of Shively v. Bowlby,152 U.S. 1, 14 Sup. Ct. 548, it is said to be the settled law of this country that ``ownership of, and dominion and sovereignty over, lands covered by tide waters or navigable lakes, within the limits of the several states, belong to the respective states within which they are found, with the consequent right to use or dispose of any portion thereof, when that can be without substantial impairment of the interest of the public in such waters, and subject to the paramount right of congress to control their navigation, so far as may be necessary for the regulation of commerce.' In the latter case it is said (page 58, 152 U.S., and page 548, 14 Sup. Ct.) that, upon admission of states into the Union, the ``administration and disposition of the sovereign rights in navigable waters, and in the soil under them,' passed to the control of the states within whose boundaries such waters were included. See, also, Mann v. Land Co., 153 U.S. 273, 286, 14 Sup. Ct. 820.

"The grant to the United States, in the constitution, of all cases of admiralty and maritime jurisdiction, does not extend to a cession of the waters in which those cases may arise, or of general jurisdiction over them. Congress may pass all laws whichare necessary for giving the most complete effect to the exerciseof the admiralty and maritime jurisdiction granted to thegovernment of the Union, but the general jurisdiction over theplace, subject to this grant, adheres to the territory, as aportion of territory not yet given away, and the residuary powerof legislation will still remain in the state. U.S. v. Bevans, 3 Wheat. 336. We are therefore of opinion that the surrounding states, within the limits prescribed in their respective organic acts, have sovereign rights in and over the navigable waters of Lake Michigan, subject to the paramount right of the federal government to regulate navigation and commerce between the states and with foreign nations. The right of the state to legislateand to enforce its laws is plenary, within the boundariesprescribed, limited and controlled only by the paramount law ofthe nation. There does not necessarily result any conflict. Bothjurisdictions can coexist in the same plane in completeharmony." [Italics supplied.]

After discussing further the jurisdiction of courts of admiralty, the opinion thus continues:

"We think the clear result of the authorities to be that the sovereignty of the state of Wisconsin extends to the middle of the lake, and that its laws, so far as they do not conflict with the laws of the United States passed in the regulation of commerce and of navigation, are operative within its prescribed boundary."

Stockton v. Baltimore N.Y.R., 32 Fed. 9, was an action brought on behalf of the state of New Jersey in the name of its attorney general. A question there arose as to the right of the Staten Island Rapid Transit Railroad Company, under permission granted by Congress to said company and the named defendant, or either of them, to erect a bridge "across Arthur kill, between New Jersey and Staten island, in the state of New York, upon the lands of the state [of New Jersey] situate on the shore, and under the waters of said kill," to proceed with the construction of such bridge without the consent of the state of New Jersey and without compensating that state for taking the bed of the stream on which the bridge supports were to be placed. The opinion in the case was written by Justice Bradley, a member of the United States supreme court sitting as a circuit judge. After disposing of several minor matters he said:

"The most strenuous objection, however, to the exercise of the power in this case, and in the manner proposed, is based on the fact that the piers of the bridge are to rest, and the bridge is to stand, on land which belongs to the state, and that no compensation is proposed to be made for the taking thereof. It is contended that, if the land of the state can be taken at all, (which is denied,) it can, at most, only be taken, like other private property, after just compensation has been made."

This contention was met by pointing out that although the state owned the lands "under water of the navigable streams and waters," said lands were held in trust by the state for the public uses of navigation and fishery, and were thereforepublici juris. It was further stated that the constitutional prohibition against the taking of private property for a public use without just compensation did not apply to the taking by the federal government, for a purpose such as involved in that case, of public property held in trust by the state. The court there held "that the power to regulate commerce between states extends, not only to the control of the navigable waters of the country, and the lands under them, for the purpose of navigation, but for the purpose of erecting piers, bridges, and all other instrumentalities of commerce which, in the judgment of Congress, may be necessary or expedient," and that this bridge was being erected pursuant to legislation of Congress acting within its constitutional powers.

It was also urged by the petitioner therein that the state could be ousted by the federal government of exclusive jurisdiction over the area included in the bridge project only by purchase of the land by the government with the consent of the state or by cession by the state of jurisdiction over the same. The court answered this argument by saying that the state itself cannot be refusing to give its consent prevent the federal government from carrying out its constitutional functions. In further answer to the above contention, after referring to the provisions of the federal constitution hereinabove quoted, the court observed:

"It is argued that this is the only constitutional method by which the United States government can obtain the possession and use of lands within a state, especially of lands belonging to the state.

"The argument, however, is directed to the acquisition ofterritory, with exclusive jurisdiction over the same, and isentirely sound in that regard. But it does not touch the question as to the power of the United States to acquire the mere use of land without exclusive jurisdiction therein. Nearly all the powers of government are exercised over territory in which the United States and the several states have concurrent jurisdiction. It is only in exceptional cases that the UnitedStates desires to have exclusive jurisdiction, and a consequentcession of territory. It is very true that the consent of the state legislature is required in order to give the United States this exclusive jurisdiction But that is all. It is not required when exclusive jurisdiction is not sought. On the contrary, the government, if it sees fit, may condemn land for its purposes without the consent of the state. Thus it was decided by the supreme court in the case of Kohl v. U.S., 91 U.S. 367, that the government of the United States may exercise the right of eminent domain within a state, for the purpose of condemning land for the use of a post-office building, and may, for this purpose, resort to its own courts. In such a case, there can not be a doubt that the post-office building could be erected and used by the government without asking the consent of the state legislature. Such consent would, indeed, be necessary to vest in the United States exclusive jurisdiction over the post-office building and grounds; but it would not be necessary to enable the government to use the property for the purpose for which it was acquired.And so of any other property wanted for a public purpose; theconsent of the legislature is not necessary to its acquisition,or to its use; but only to the exclusion of state jurisdictionover the place. That jurisdiction, if allowed to remain, will extend to the punishment of crimes committed against state laws therein, and to the service of state process, but, of course, can not interfere with the execution of the United States laws, nor with the performance, by United States officers and agents, of the duties devolved upon them." [Italics supplied.]

In United States v. Utah, supra, the court said:

"The government also refers to proceedings since Utah became a state, with respect to governmental investigations, operations under placer claims, and withdrawals for power and reservoir sites. It is not necessary to review these transactions in detail, as nothing that has been done alters the essential facts with respect to the navigability of the streams, and the United States could not, without the consent of Utah, divest that state of title to the beds of the rivers which the state had acquired. Nor has Utah taken any action which could be deemed to estop the state from asserting title."

Section 60-1302, Oregon Code 1930 (Laws 1874, p. 10), grants to the governor of Oregon authority and power to convey to the United States title to land belonging to the state and covered by the waters of the United States, not exceeding 10 acres in any one tract, as the site of a lighthouse, beacon or other aid to navigation, upon application made to him by a duly authorized agent of the United States, and further grants him authority "to cede to the said United States jurisdiction over the same," reserving, however, to the state the right to serve thereon civil or criminal process issuing under authority of the state. No application has been made to the governor of this state or to the legislature for conveyance of any part of the bed of either the north or south channel of the Columbia river within the project, or for cession to the federal government of jurisdiction over the same.

In Ryan v. State, 188 Wn. 115 (61 P.2d 1276), a case involving the right of the state of Washington to tax contractors in relation to their work performed on the Grand Coulee dam, the court said:

"By the enabling act of Congress, passed February 22, 1889, the territory of Washington became the state of Washington. Subject to the limitations and restraints of the federal constitution, the state, as such, has all the sovereign powers of independent nations over all persons and things within its territorial limits. Sturges v. Crowninshield, 4 Wheat. 122,4 L.Ed. 529; New York v. Miln, 11 Pet. 102, 9 L.Ed. 648; Cummings v. Missouri, 4 Wall. 277, 18 L.Ed. 356. The area within, and under, the jurisdiction of a state may come under the exclusive jurisdiction of the United States by purchase by the federal government for a purpose prescribed by the federal constitution and with the consent of the state, or by cession of exclusive jurisdiction by the state to the United States. In either event, the land acquires a territorial status and ceases to be a part of the state, either territorially or jurisdictionally. Concessions Co. v. Morris, 109 Wn. 46, 186 P. 655. But, since self-preservation is the first law of nations and states, as well as of individuals, it will not be presumed, in the absence of clearly expressed intent, that the state has relinquished its sovereignty. Willis v. State, 3 Heisk. (50 Tenn.) 141; In re Kelly (C.C.), 71 F. 545; Ex parte Gaines, 56 Ark. 227,19 S.W. 602; Barrett v. Palmer, 135 N.Y. 336, 31 N.E. 1017, 17 L.R.A. 720, 31 Am. St. Rep. 835."

No authority has been called to our attention to the effect that the state of Oregon has in any way relinquished its sovereignty over the area occupied by the waters of Bradford slough and that part of the north channel of the Columbia river which is within the territorial limits of the state. The whole contention of the plaintiffs seems to be based upon the well recognized rule that the federal government has exclusive power to regulate commerce, and that such power extends to the control of navigable waters of the country, to the lands beneath them, and to the erection of bridges, piers and all other instrumentalities of commerce which in the judgment of Congress may be necessary or expedient for the exercise of this power. Such paramount authority, however, does not give to the federal government exclusive jurisdiction except in matters relating to the regulation of commerce and navigation, and the state is free to exercise exclusive legislative jurisdiction in all other matters within its territorial boundaries, except in such instances as it has in some manner relinquished jurisdiction.

It is therefore apparent that the state of Oregon has power to tax any personal property belonging to private individuals located on any of the navigable waters within the Bonneville dam project inside the exterior boundaries of the state. Likewise, any other power of taxation which the state has would be effective within that area.

The plaintiffs place much reliance upon the case of UnitedStates v. Tucker, 122 Fed. 518, in which it was held by the United States district court that a dam was a "needful building" within the meaning of the provision of the national constitution hereinabove quoted. The question there involved was raised by demurrer to an indictment which charged the defendant with a crime committed on lands owned by the United States and known as lock No. 3 on Green river in the state of Kentucky. The court pointed out that the place where the criminal acts were alleged to have been committed "was on land then used for public purposes; that the state's interest in the land had been ceded to the United States by the legislature of Kentucky under an act approved February 20, 1886 (1 Sess. Acts 1885-1886, p. 11, c. 69); and that in addition to this the legislature of the state had, by the same enactment, in express terms, yielded to the United States jurisdiction over it". No such consent was given in the instant case or cession made by the state of Oregon of jurisdiction over the navigable waters involved in this litigation.

Most of the foregoing discussion has been limited to the area not purchased by the federal government. In that area, however, the main structural part of the works is to be located. Even assuming that the construction in the Bonneville dam project may be classified as a "needful building," nevertheless only a small part of it is located on lands purchased by the federal government.

To erect and maintain a structure such as the Bonneville dam, the declared purpose of which is to develop hydroelectric power and to aid navigation, does not necessitate the United States government's having exclusive jurisdiction over the site of construction. Such a project differs materially from "forts, magazines, arsenals" and similar structures, which by their very nature demand that the federal government have exclusive jurisdiction over them.

It has already been pointed out that the federal government may acquire by purchase, condemnation or otherwise, lands within the state, without the consent of the state, for governmental purposes, and that in many instances the federal government does not desire to exercise exclusive jurisdiction over the lands so acquired. The mere fact that there may be on the statute books of the state a general law, such as § 60-1303, Oregon Code 1930, consenting to the purchase of land by the United States and granting to the national government the right to exercise exclusive jurisdiction thereover, does not imply that over all lands purchased by the national government in the state after the enactment of such law the state is divested ipso facto of sovereignty, and exclusive control over the acquired area is assumed by the federal government. In the instant case there is nothing to indicate that the federal government desires to exercise exclusive legislative jurisdiction over the land purchased by it within the Bonneville project. It would be somewhat inconsistent to assume that since it does not have such jurisdiction over the major part of the structures which are now being built, the federal government is seeking to exercise exclusive jurisdiction over that part of the works located on lands title to which it has acquired.

The record discloses that the government officials in charge of the construction work required the contractors to come under the provisions of the workmen's compensation law of the state in which the work was to be performed. At the time the contract with the plaintiffs was entered into at least two states had held that their workmen's compensation laws were not effective on territory over which the federal government had exclusive jurisdiction:Willis v. Oscar Daniels Co., 200 Mich. 19, 30 (166 N.W. 496);Murray v. Joe Gerrick Co., 172 Wn. 365 (20 P.2d 591). On February 5, 1934, the supreme court of the United States affirmed the latter case. See 291 U.S. 315 (78 L.Ed. 821, 54 S.Ct. 432, 92 A.L.R. 1259).

The contract between the plaintiffs and the federal government was dated February 6, 1934. In view of those decisions it is reasonable to assume that the officials in charge of construction of the Bonneville dam on behalf of the federal government understood that the land included in the project was not under the exclusive legislative jurisdiction of the United States. Otherwise they would not have required contractors to provide state workmen's compensation. In this connection, it was said inRyan v. State, supra:

"On the other hand, if the state were excluded from all jurisdiction, the residents of the project would be without school facilities, police protection, and the right to vote, the workmen would be deprived of the benefit of industrial insurance, and the rules for sanitation would be suspended; for, if the state be wholly without jurisdiction, then it must follow that the state may not extend its privileges to the residents of the project nor expend its money in their behalf. Opinion of Justices, 1 Metc. (42 Mass.) 580; In re Town of Highlands (Sup.) 22 N.Y.S. 137; Sinks v. Reese, 19 Ohio St. 306, 2 Am. Rep. 397; State ex rel. Lyle v. Willett, 117 Tenn. 334, 97 S.W. 299; Ft. Leavenworth R. Co. v. Lowe, 114 U.S. 525,5 S.Ct. 995, 29 L.Ed. 264; Surplus Trading Co v. Cook,281 U.S. 647, 50 S.Ct. 455, 74 L.Ed. 1091."

We conclude that the federal government has not acquired, nor is it assuming, exclusive legislative jurisdiction over any of the area within the Bonneville project inside the territorial limits of the state of Oregon, and that the plaintiffs are amenable to the laws of this state relative to taxation on personal income earned within the state.

The case of Winston Brothers Company v. State Tax Commission, post p. 505 (62 P.2d 7), on which plaintiffs rely, was decided by this court on the same day that the opinion in this case was handed down. Rehearing of the case at bar has been had and further study has been given the subject. Regardless of the holding in the Winston case, the facts of which are somewhat different from those in the case at bar, we are of the opinion that we were in error in our former decision in this case. Moreover, petition has been filed in the supreme court of the United States for a writ of certiorari in the Winston case, and any error which may have been committed therein will undoubtedly be corrected by that court.

We find no error in the decree appealed from and the same is affirmed.

BEAN, C.J., and CAMPBELL and KELLY, JJ., concur.