DocketNumber： No. 8866
Citation Numbers： 61 Colo. 149
Judges： Gabbert, Garrigues, Hill, Teller, White
Filed Date： 1/15/1916
Status： Precedential
Modified Date： 7/20/2022
delivered the opinion of the court.
The essential facts are as follows: The assessors of the several counties of the State, on or before the first day of September, 1915, in accordance with the law, transmitted to the Colorado Tax Commission their respective abstracts of assessment for such year, showing the real and personal property assessed by them in their respective counties, and their valuation thereof. The abstract so prepared and transmitted by respondent showed the aggregate value of property listed and assessed by him and taxable within the City and County of Denver to be $265,337,910. September 16, 1915, the Tax Commission transmitted to the County Board of Equalization of the City and County of Denver a communication wherein it recommended a designated increase of valuation on the taxable property in such county, and that such increase be placed upon certain named items or classes of property. This was not done, however, and thereafter on the first day of October, 1915, the Tax'Commission, with all of the abstracts of assessment from the
“Pursuant to the provisions of sections 31, and 32, of Chapter 216, Session Laws of the State of Colorado, 1911, the Colorado Tax Commission herewith submits the following to the State Board of Equalization:
For the year 1915 the various county assessors returned an assessment of property under their jurisdiction of $921,591,301. The Colorado Tax Commission having carefully examined the abstracts as returned, and made a study of data available, recommended to certain of the county boards of equalization that increases in valuation aggregating $67,754,753, be placed upon certain classifications of property. Upon these recommendations increases in the aggregate amount of $10,639,767 were made by certain boards, making an aggregate assessment of $932,231,068. This Commission has raised these amounts $57,114,986, making an aggregate of $989,346,054.
The amounts that were added to the local assessments of real and personal property in each of the various counties were as follows:
Denver, $55,408,952, as follows:
Imp. on improved land....... 547,171
Town and city lots........... 25,548,128
Imp. on lots................. 20,549,953
All other animals............ 2,862
Automobiles ............... 590,768
Musical instruments......... 389,232
Clocks and watches.......... 34,965
Harness ................... 11,822
Machinery and equipment.... 626,434
Money invested in merchandise 812,083
Capital in manufactures...... 30,548
Jewelry ................... 129,461
Household property......... 1,660,328
Libraries .................. 49,801
Furniture and fixtures....... 470,228
All other property........... 114,794”
The State Board of Equalization continued in session from day to day, pursuant to adjournment, until and including the 18th day of October, 1915, on which date, by resolution duly adopted, it fixed the valuation of the real and personal property of the City and County of Denver at $320,-746,862, instead of $265,337,910, the amount returned by the assessor in his abstract of assessment, “making an increase in valuation of $55,408,952.” At the same time and place it further provided by resolution that the aforesaid increase in valuation should be placed upon certain designated classes and items of classes of property in such county. Thereupon .a certified notice of its action in the premises was delivered to, and received by, respondent, who refused to make the increase or comply with the orders of the board. The material portions of this notice are as follows:
“ * * * that at a meeting of the State Board of Equalization, held on the 18th of October, 1915, which meeting was held for the purpose of examining the abstracts of
By resolution, duly adopted, the valuation of the real and personal property of your county was increased from $265,337,910, the amount returned in your abstract of assessment on property assessed by you, to $320,746,862, making an increase in valuation of your assessment of $55,408,-952, the rate per cent of said increase being.
Said resolution also provided that said increase in valuation of your assessment should be distributed as to the various classes or item or items of classes of property in your county in the following manner:”
(There is here inserted in the notice a duplicate of the classes and items of property and the respective values shown above in the report of the Tax Commission to the State Board of Equalization.)
The answer of respondent questions the right of relators to prosecute the action;-sets forth respondent’s lack of knowledge as to whether the Tax Commission examined the abstracts of assessment of the various counties of the state, or secured any information for the purpose of determining whether the property of the several counties had been properly assessed; alleges that the assessment made by respondent placed the property of the City and County of Denver upon the assessment roll at its full cash value; that the increase in the assessed valuation on property in the
Upon the hearing of the demurrer which questioned the sufficiency of the facts set forth in the return to constitute an answer or defense to the writ, the court held, that the State Board of Equalization had the power to raise or lower the valuation of any part or parcel whatsoever of the property of any county to bring such property therein to its full and true cash value, for the purpose of taxation, and while such board had no right to go’ above such value, yet, a court cannot, upon such question, substitute its judgment for that of the board, but may set aside its act in that regard if such board reached its conclusions without using its judgment, that is, “arbitrarily and capriciously”; and as the return to the writ denied that the Tax Commission secured tiny information concerning the full cash value of property assessed, and alleges that the State Board of Equalization relied soley and entirely upon the report of the Tax Commission as to valuesdn the various counties, and its acts
1. While it may be true that a valuation imposed upon property for purposes of taxation by tax officials in a capricious or arbitrary way, through chance and guess, and without exercising any judgment in the premises, may and should, if such irregularities have not been waived by the property owners affected, be set aside and annulled by a court, it can only be done in an appropriate proceeding. An examination of the case of Consolidated Gas Co. vs. Mayor, 101 Md. 541, 61 Atl. 532, 1 L. R. A. (N. S.), 263, 109 Am. St. 584, and cases there cited, relied upon by the trial court for its holding in overruling the demurrer herein, are cases under statutes providing for appeals to the courts from the action of tax-assessing and equalizing tribunals, or reviews thereof under certiorari, or by direct proceedings in equity, when fraud is alleged and established, and always by and
After respondent had completed his assessment and submitted his assessment roll to the County Board of Equalization, — § 5658 R. S. 1908, — and transmitted his abstract of assessment to the Colorado Tax Commission, — § 30, p. 622, S. L. 1911, — his quasi judicial functions were ended, and his duties thereafter to be performed were purely ministerial, and that which is subsequently done by other boards, with jurisdiction to act in the premises, cannot be changed or questioned by him.—Denver vs. Pitcher, 54 Colo. 203, 224, 225, 129 Pac. 1015; Colo. Tax Com. vs. Pitcher, 56 Colo. 343, 383, 138 Pac. 509, § 33, p. 623, S. L. 1911; Cooley on Taxation (3d ed.), p. 1359.
Indeed, the rule seems universal that “when mandamus is resorted to in order to compel the assessment or collection of taxes the respondent may defend upon the
It is the imperative duty of a ministerial officer to obey the act of a tribunal invested with authority in the premises directing his action; not to question or decide upon its validity. This applies with the same force whether the direction be embodied in a legislative act or in the pronouncement of a governmental agency invested with power in the premises. The maxim lies at the very foundation of jurisprudence, and without its observance government would cease to exist.
The rule has been frequently declared by this court. Thus in People, ex rel. vs. Lothrop, 3 Colo. 428, 451, we held that the only question that could be raised by an assessor, after the State Board of Equalization had acted, was the question of constitutional or statutory jurisdiction. The language used is as follows: “The board was the sole judge as to what was necessary to the proper adjustment and equalization of the tax so long as it acted within its constitutional and statutory jurisdiction. This court can only inquire whether it did so act within the limits of its authority.’’
Equally pertinent is our language in Ames vs. People, 26 Colo. 83, 90, 56 Pac. 656, 658, as follows: “The reasons for this .rule are apparent. Public policy and public necessity require prompt and efficient action from such officers, and when intrusted with the assessment of taxes and the collection and disbursement of revenue, they had no right to refuse to perform ministerial duties prescribed by law because of any apprehension on their part that others may be injuriously affected by it, or that the statute prescribing such duties may be unconstitutional. Individuals who might. be injuriously affected may not doubt the constitutionality
In State, ex rel. vs. Buchanan, 24 W. Va. 362, it is, expressly held that if a tribunal or governmental agency has the jurisdiction to determine a given question and does so-, obedience thereto by ministerial officers acting in relation to the matter covered by the order, is imperative; and they may not pause in the execution of their duty to question the regularity of the proceedings of the superior tribunal in arriving at its conclusion, or because they apprehend that others may be injuriously affected thereby. In that case the auditor of the state was authorized to give such lawful instructions to the assessors respecting their duties as may seem to him judicious. The Constitution required equality and uniformity of taxation, and that all property should be subject to taxation, except the legislature was authorized to exempt therefrom certain classes of property. It attempted to exempt from taxation property not included within the excepted class. The Supreme Court of the state had theretofore held, under a prior Constitution containing substantially the same provision in that regard, that the act of the legislature extending the exemption to other classes of property was invalid. The auditor was requested by the governor to instruct the assessors in their assessments to disregard the legislative provision which attempted to exempt from taxation property not within the class mentioned in the constitutional exception. This the- auditor did, and a certain assessor, refusing to obey, the auditor resorted to mandamus to coerce him to comply with the order. It was held that the governor, in the first instance, had jurisdiction to determine that the apparent legislative provision was not law, and that the order of the auditor was valid, and that the assessor could not arrest the execution of the law as construed by the chief executive, or justify his insubordination, on the ground that the governor had decided wrongly, or
In People vs. Collins, 7 Johns. 549, a mandamus was prayed to require the defendant, a town clerk, to record a survey of a highway; and in his return he insisted that the survey was illegal.' The court, speaking through Kent, C. J., p. 553, said: “It certainly did not lie with the defendant, as a mere ministerial officer, to adjudge the act of the commissioners null. It was his duty to record the paper; valeat quantum valere potest. It was enough for him* that those persons had been duly elected commissioners within the year, and were in the actual exercise of the office.”
In Smyth vs. Titcomb, 31 Me. 272, 286, it is said: “A public officer entrusted with the collection and disbursemeni of revenue, in any of the departments of the government, has no right to refuse to perform his ministerial duties, prescribed by law, because he may apprehend that others may be injuriously affected by it, or that the law may, possibly, be unconstitutional. He is not responsible for the law, or
Certain language of the court in People vs. Salomon, 54 Ill. 39, 45, 46, is so pertinent to the matters involved herein that we shall quote the same. The facts of the case were a clerk of a1 County Court refused to extend upon the collector’s books the taxes according to the increased valuation determined by the State Board of Equalization, and proceedings were instituted to compel the clerk by mandamus to make such extensión, which resulted in the award of a peremptory writ. The clerk still refused to perform his duty in the premises, and in sustaining an attachment against him for contempt the court, directly addressing him, said: “The law under which this additional tax was imposed, had passed the legislature under all the forms of the Constitution, and had received executive sanction, and became, by its own intrinsic force, the law to you, to every other public officer in the state, and to all. the people. You assumed the responsibility of declaring the law unconstitutional, and at once determined to disregard it, to set up your own judgment as superior to the expressed will of the
To the law every man owes homage, 'the very least as needing its care, the greatest as not exempted from its power.’ To allow a ministerial officer to decide upon the validity of a law, would be subversive of the great objects and purposes of government, for if one such officer may assume infallibility, all other like officers may do the same, and thus an end be put to civil government, one of whose cardinal principles is, subjection to the laws.
Being a ministerial officer, the path of duty was plain before you. You strayed from it, and became a volunteer in the effort to arrest the law, and it was successful. Had the property owners, who were subjected to this additional tax, considered the law unconstitutional, they could, in the proper courts, have tested the question, and it was their undoubted right so to do. Your only duty was obedience. The collected will of the whole people was embodied in that law. A decent respect to them required that all their servants should obey it.”
The respondent herein has no more interest in that which some other tribunal did within its jurisdiction relating to the matter of fixing values for the purposes of taxation than the treasurer. The treasurer, upon receiving (a warrant from the proper authorities to collect the taxes, is under the necessity of rendering obedience thereto and may not question the regularity ®f the proceedings resulting in the warrant. It is equally true that if the State Board of Equalization had jurisdiction, as held by the trial court, and actually made the raise it did, its judgment constituted
“The statute in such cases makes it the duty of the county treasurer, after the expiration of twenty days from the return, to issue his warrant to the sheriff of the county, where the debtors reside, commanding him to make of the goods and chattels and real estate of such non-resident the amount of such tax, etc.— (Sess. Laws of 1851, Ch. 371, Sec, 6.) This is a mere ministerial duty which the statute imposes upon the treasurer, and peremptorily requires him to perform upon the return of the collector being duly made, containing the necessary facts. He has no discretion to exercise in the matter, and is invested with no judicial functions whatever in regard to it. He has no power nor authority to sit in judgment upon the acts of the assessors of the town, or upon those of the board of supervisors of the' county. The statute has not constituted that officer the tribunal for challenging their proceedings or for reviewing and correcting their mistakes or errors of judgment. Nor can he, in answer to an application for a writ of mandamus against him for refusing to perform his duty, bring their proceeding into review for the purpose of establishing mistakes or errors in such proceeding. He may, however, in such a case, I apprehend, challenge the jurisdiction of any or all of these officers and tribunals, to make the assessment, or impose the tax thereon, * *
And in the case of School District v. Clark, 33 Me., at page 483, the court, in a' similar proceeding, says:
“The treasurer has the power to issue such a warrant, and in some cases it becomes his duty. The collector, having a warrant from competent authority, was bound to proceed under it. With the anterior proceedings he had no concern. An officer appointed to collect the public revenue must, ex necessitate rei, obey his warrant, and he will be protected
In Waldron vs. Lee, 5 Pick. 323, it was held that: “If a person appointed to warn a school district returns that he warned the inhabitants, but without stating the time or manner of warning, and the inhabitants meet and vote to raise a sum of money, and this vote is duly certified to the assessors, they are obliged to assess the tax, and neither they nor the town treasurer can inquire into the regularity of the proceedings antecedent to the meeting,” and that upon refusal to act in the premises they would be coerced by mandamus. And further in the opinion, it was said: “The treasurer is merely a ministerial officer; he has no authority to pause in the execution of his duty, on the suggestion of errors or mistakes in the proceedings. If the facts upon which he is to act are properly certified to him, he has no discretion, but is obliged to issue his warrant. Whether the tax be legal or illegal, whether duly assessed or not, are not subjects for him to inquire about. If there be a tax, an .assessment, a warrant to the collector, all certified to him hy assessors duly qualified to act, his duty is clear, and he is peremptorily commanded by law to discharge it.”
So here, the duties of respondent in relation to the matters in question are ministerial and if the facts upon which he is to act were properly certified to him from a tribunal with jurisdiction in the premises, that order con
2. The respondent, however, questions the jurisdiction of the State Board of Equalization to make the raise upon the items and classes of property affected by its order, and we will proceed to a determination of that matter.
The principles announced in People v. Pitcher, 56 Colo. 343, will control herein so far as they apply to the questions involved. It is necessary, however, to bear in mind and consider the changes that have been made in the law applicable to the subject under consideration subsequent to the date of that decision. At that time there were four governmental agencies invested with duties pertaining to the assessment or ascertainment of the value of property in the state for the purpose of taxation. There was a county assessor in each county, a central body denominated the Colorado Tax Commission, a County Board of Equalization in each county and a State Board of Equalization. The only duties then or now exercised by the State Board of Equalization were imposed by the Constitution, for prior to that decision all its statutory powers, duties and privileges had been transferred to. and invested in the Colorado Tax Commission. Chap. 133, S. L. 1913, p. 525. The duties of the State Board of Equalization at that time were solely to adjust and equalize the property values among the several counties of the state, and it possessed no power to raise or lower the aggregate of the values previously ascertained by other proper governmental agencies. The County Boards of Equalization, however, were then expressly invested with both constitutional and statutory duties. Their constitutional duties were to adjust and equalize such values within the respective counties, and thereunder they had no power to change the total value of the property as reached by the county assessors. This latter power, however, they did at one time possess by virtue of the statutes. §38 G. L., p. 754;
The provisions of the Constitution creating the State Board of Equalization and the respective County Boards of Equalization and defining their respective duties in force at the time of the decision in People v. Pitcher, supra, was § 15, (p. 45, R. S. 1908). This section read as follow’s:
“Sec. 15. There shall be a state board of equalization, consisting of the governor,, state auditor, state treasurer, secretary of state and attorney general, also, in each county of this state, a county board of equalization, consisting of the board of county commissioners of said county. The duty
The section was amended in 1914- — S. L. 1915, p. 163,— and now reads as follows:
“Section 15. There shall be a Board of . Equalization for the state, consisting of the Governor, State Auditor, State Treasurer, Secretary of State and Attorney General. The duty of the said Board of Equalization shall be to adjust, equalize, raise or lower the valuation of real and personal property of the several counties of the state, and the valuation of any item or items of the various classes of such property.
“There shall be in each county of-this state a County Board of Equalization, consisting of the board of county commissioners of said county. The duty of the County Board of Equalization shall be to adjust, equalize, raise or lower the valuation of real and personal property within their respective counties, subject to revision, change and amendment by the State Board of Equalization. The State Board of Equalization and the County Board of Equalization shall equalize to the end that all taxable property in the state shall be assessed at its full cash value, and also perform such other duties as may be prescribed by law; Provided, however, that the State Board of Equalization shall have no power of original assessment.”
Under this constitutional amendment it is clear that the State Board of Equalization is the final arbiter in fixing values upon property which has been originally assessed for the purposes of raising public revenue. It is expressly made its duty to adjust, equalize, raise or lower the valúa
However, the respondent claims that the constitutional provision is not self-executing, as acts done under it without further legislation would be without notice to the property
The State Board is required to meet at a designated time and place and perform its constitutional duties “to the end that all taxable property in. the state shall be assessed at its full cash value.” This, it would seem, constitutes ample provision for the property owner to be heard, and all the notice to which he is entitled in matters of this character under the provisions of the state and federal constitutions. Colo. Tax Commission v. Pitcher, supra; Bi-Metallic Inv. Co. v. The State Board of Equalization, 56 Colo. 343, 138 Pac. 1010, affirmed by the Supreme Court of the United States, December 20, 1915, 239 U. S. 441, 36 Sup. Ct. 141, 60 L. Ed. Moreover, the performance by the State Board of its duty is not dependent upon the changes in the original assessment that may have resulted from the acts, whether properly or improperly performed, of the State Tax Com
As disclosed by the' evidence the exact wording of the resolution of the State Board of Equalization is„ * * * “that the report of the Tax Commission as to the counties be adopted and each and every one of the raises reported be ordered by this board to be placed on classes as recommended by the Tax Commission”; and, the respondent contends, that this did not constitute such an act of the State Board of Equalization as to legally constitute the raise directed in the notice served upon him, and shows upon its face
Throughout the states of the Union boards of equalization are not generally required to examine witnesses or to base their action on any particular kind or quantum of evidence, but may proceed in their own way and act o.n any information which is satisfactory to them. In the absence of statutory requirements, even officers who make original assessments act upon their own knowledge, and individual judgment in fixing values for the purpose of taxation, and 'this is uniformly true o.f equalizing boards. St. Louis Ry. Co. v. Surrell, 88 Ill. 535, 536; Fields v. Russell, 38 Kan. 720, 721, 17 Pac. 476; Russell v. Carlisle, 8 S. W. 14, 15; 37 Cyc. 1076, 1077; Hacker v. Howe, 72 Neb. 385, 386, 391, 101 N. W. 255; State v. Hannibal, etc., Ry Co., 101 Mo. 120, 13 S. W. 406.
Indeed, it has been held that the fact that the State Board of Equalization does not have before it the assessment rolls of the different counties as required by the statute, or any other particular written evidence provided by law, is not a jurisdictional defect, but a mere irregularity. Mayor v. Davenport, supra; Dayton v. Multnomah County, 34 Ore. 239, 55 Pac. 23; Dayton v. Board of Equalization, 33 Ore. 131, 50 Pac. 1099.
The principle is well stated and applied in Mayor v. Davenport, supra, in the following language:
“The assessors of the several towns first make out their rolls and determine the valuations. In this respect they act judicially,.and any erroneous decision can only be corrected by a direct review o.f their proceedings, whenever they have kept within their jurisdiction. If they have so acted, their conclusions cannot be assailed either by a suit at law against them, or against those who take the further steps toward collection based upon their action. * * * The assessors
It is further alleged that the board increased the valuation of the city without evidence. If this means that they did not swear and examine witnesses upon the subject, that is true but immaterial. The law did not require it, and contemplated no such means of information. The State assessors had been doing that, and exhausting in each county' the knowledge thus obtainable. The. board came to the-performance of its duty with adequate preparation, and exactly of the character and from the sources which the statute contemplated. If the complaint means that such information was wanting, the allegation is neutralized by the distinct admission that they had ‘the general information possessed by members of the board in their acquaintance with the property contained in the State, and such oral general information as was conveyed to them by the-state assessors, who had previously visited the various counties of the State,’ and by the legal presumption of the-proper performance of official duty. It is thus sufficiently' apparent that the board had acted upon the kind of evidence- and information which the law contemplated.
But it is said they adopted a schedule of equalization prepared by one of the assessors, and accepted it after ten minutes secret session. Somebody had to prepare it. Often,, and in many boards, some one willing shoulder lifts more-
But is is finally said, and that is the only important averment, that the assessed values of the city were more than sixty per cent of the actual and market value; while those of other counties were less than sixty per cent of such real value; and yet the board of equalization added to the injustice by increasing the city valuation. If this is true, a great wrong was done, but it cannot be redressed in this action. The accusation touches not'the jurisdiction of the board but the correctness of its judgment.”
However, should we finally hold that where the law requires that a board of equalization act upon specific evidence, no other action may be permitted, the rule is in no wise applicable to the case at bar. Our Constitution is silent in regard to the evidence or character thereof essential to valid action upon the part of the State Board of Equalization in the performance of its duties. It may, therefore, resort to any source of information it may desire in reaching its conclusions, even though it be assumed that it may not reach its conclusions from its own knowledge. Indeed, the majority of this court, speaking thru Mr. Justice THU, has heretofore held that where the fundamental law creates an agency and invests it with power, without prescribing the manner in which it may be exercised, the agency is at liberty to adopt its own mode of procedure. People, ex rel. Moore v. Perkins, 56 Colo. 1, 42, 43, 44, 137 Pac. 55, Ann. Cas. 1914D, 1154. If the board did not swear
The completed assessment is purely the result of the collective judgment and discretion of the several assessing and equalizing agencies, whose duties are prescribed in the statutory ivtid constitutional law of the state. The acts of some of these agencies may be changed by the acts of others, but the final and ultimate determination of the matter is vested in the State Board of Equalization. Porter v. Ry Co., 76 Ill. 561. The constitutional provision creating it is complete in itself and, therefore, is self-executing. Lyons v. Longmont, 54 Colo. 112, 117, 129 Pac. 198. What that body is authorized to do by the terms of the Constitution is the measure of its power, and with the exercise of that power no court can interfere, unless its conclusion or judgment in a given matter is attacked by a párty whose rights are affected thereby. The ascertainment of the ultimate fact that all the property of the state has been brought, for taxation purposes, to its full cash value rests on the judgment of the State Board of Equalization, not on the judgment of the judiciary. State v. K. C., etc., Bridge Co., 106 Ark. 248, 153 S. W. 614, 617; Stanley v. Supervisors of Albany Co., 121 U. S. 535, 542, 30 L. Ed. 1000, 7 Sup. Ct. 1234.
“In nearly all the states, probably in all of them, provision is made by law for the correction of errors and irregularities of assessors in the assessment of property for the purposes of taxation. This is generally through boards of revision or equalization, as they are often termed, with sometimes a right of appeal from their decision to the courts of law. They are established to carry into effect the general rule of equality and uniformity of taxation required by constitutional or statutory provisions. Absolute equality and uniformity are seldom, if ever, attainable. The diversity of human judgments, and the uncertainty attending all human evidence, preclude the possibility of this attainment. Intelligent men differ as to the value of even the most common objects before them — of animals, houses, and lands in constant use. The -most that can be expected from wise legislation is an approximation to this desirable end; and the requirement of equality and uniformity found' in the constitution of some states is complied with, when designed, and manifest departures from the rule are avoided.
To these boards of revision, by whatever name they may be called, the citizen must apply for relief against ex
It is quite likely that in applying the new system of assessing and equalizing the value of property, injustice and hardship will, for a time, occur in certain cases. This is true in any change from one system to another. These inequalities, however, are not confined to the City and County of Denver alone, but occur in every county of the state. Moreover, they will continue, under any system, until there is an honest co-operation among public officials whose duty it is to ascertain and fix values in laying taxes. It would seem inconceivable to a fair-minded person, that the assessors of this state, the Tax Commission, the several County Boards of Equalization and the State Board of Equalization are confronted with so much difficulty in performing their respective duties. However, if each person will perform his own duty as prescribed by the statutes or Constitution, according to his best judgment, and all co-operate to the end that the constitutional mandate that all property shall be brought to its full cash value for the purposes of taxation, we feel certain that confusion and uncertainty in such matters will speedily disappear, and an equitable and just system of taxation be realized.
We are of the opinion that the alternative writ stated a cause of action and the return in no wise constituted a defense thereto. The judgment of the trial court is, therefore, reversed with directions to reinstate the case and enter an order making the alternative writ peremptory.
Judgment reversed with directions.
Decision En Banc.