CITY OF LONG BEACH, a municipal corporation, Plaintiff and Respondent, v. BOARD OF SUPERVISORS OF LOS ANGELES COUNTY, and County of Los Angeles, a body corporate and politic, Defendants and Appellants.*
Section 1 of Article XIII of the State Constitution exempts from general taxation any property belonging to the state or any county, city and county or municipal corporation ‘except such lands and the improvements thereon located outside of the county, city and county or municipal corporation owning the same as were subject to taxation at the time of the acquisition of the same by said county, city and county, or municipal corporation * * *.’ The quoted exception to the exemption was inserted by amendment of 1914. Where a city acquires such outside property and it becomes subject to a tax lien does subsequent annexation of that land render the lien unenforceable and afford the city a right to cancellation or to refund of the tax in event of its payment under protest? That is the principal question presented by this appeal.
In 1953 and 1954 plaintiff, City of Long Beach, acquired by condemnation three parcels of land lying outside its boundaries and by deed a fourth one; title to three of them passed before tax lien date and the other after that day, which was March 1, 1954. County taxes for the year 1954–1955 having been assessed upon each, the city thereafter annexed all of them and applied to the defendant, Board of Supervisors of Los Angeles County, for cancellation of the tax and lien upon each parcel pursuant to § 4986 Revenue and Taxation Code1 ; this was denied and the city thereafter paid the taxes under protest, an aggregate of $27,049.04. Thereupon the instant action was brought; it involves 1954–1955 taxes only; the complaint is in two counts, the first being for declaratory relief to the effect that the Board of Supervisors should have granted each claim for cancellation, and the second being for recovery under Revenue and Taxation Code, § 50962 of taxes erroneously or illegally collected. Defendants Board of Supervisors and County of Los Angeles demurred to the complaint generally and specially;3 same was overruled with leave to answer within 30 days; defendants declined to do so and default judgment was entered. It recites the taking of evidence, declares ‘that each parcel of property listed in plaintiff's complaint is exempt from taxation and became so exempt on the date each such parcel was annexed to the City of Long Beach under the provisions of Article XIII, Section 1, of the Constitution of the State of California. The Court further declares that when there was filed with the defendants, by the plaintiff, the applications for cancellation of taxes, attached to plaintiff's complaint herein and marked as Exhibits ‘A’, ‘B’, ‘C’ and ‘D’, it became the duty of said defendants to cancel all taxes on each parcel of such property; that the defendants should have granted each of such applications and cancelled all of such taxes.' It was further adjudged that plaintiff recover said sum of $27,049.04 with interest and costs. Defendants have appealed from said judgment.
Concerning the merits, appellants argue that a valid tax lien having attached to the property at a time when it was subject to tax by the county, although owned by the city, a subsequent absorption of the property into the city through annexation could not impair the existing lien and therefore the judgment is erroneous. Respondent city contends that, though the tax lien upon this city property was valid prior to annexation, the incorporation of the subject property into the municipality rendered the tax lien thereafter unenforceable, both upon general principles heretofore declared by the courts and the statutory command of § 4986(e), Revenue and Taxation Code.
Prior to the 1914 amendment to § 1 of Article XIII of the Constitution, it was settled law that all property owned by a municipality was tax exempt (City & County of San Francisco v. County of Alameda, 5 Cal.2d 243, 245, 54 P.2d 462; City & County of San Francisco v. County of San Mateo, 36 Cal.2d 196, 199, 222 P.2d 860), and the sole test of the right to exemption was ownership,—devotion to public use not being of the essence. Anderson-Cottonwood Irr. Dist. v. Klukkert, 13 Cal.2d 191, 198, 88 P.2d 685; Sutter-Yuba Inv. Co. v. Waste, 52 Cal.App.2d 785, 790, 127 P.2d 25. The primary object of the amendment was to protect small counties against serious loss of tax revenues through large acquisitions of outside lands by big cities, but the language was broader and the scope of the amendment more extensive than that. City & County of San Francisco v. County of Alameda, supra, 5 Cal.2d at pages 245–246, 54 P.2d at pages 463–464. Both sides postulate their arguments at bar upon the assumption that the lands under discussion were subject to valid taxation as city owned property prior to their annexation, and that event would exempt them from future taxation. They disagree as to the effect of annexation upon a valid existing tax lien.
County of Mariposa v. Merced Irr. Dist., 32 Cal.2d 467, 196 P.2d 920, holds that: ‘Correctly construed the constitutional provision contemplates that very power, that is, the power to annex additional area and thus incidentally achieve tax exemption.’ 32 Cal.2d at page 474, 196 P.2d at page 924. In that case an irrigation district (which has the status of a municipality for the purposes of the constitutional provision; Rock Creek Water Dist. v. County of Calaveras, 29 Cal.2d 7, 172 P.2d 863), was in the process of ‘including’ within its boundaries pursuant to the Water Code certain outside property which it owned. That land was situated in the county of Mariposa which brought a mandamus proceeding to compel the district to discontinue such annexation proceeding, the theory being ‘that the law authorizing the inclusion of that land within the boundaries of the district is invalid in that it will frustrate the purpose of the constitution (Cal.Const., Art. XIII, sec. 1, infra) to require irrigation districts to pay taxes on land owned by them to the county in which the land is located but which land is not within the boundaries of the district.’ 32 Cal.2d at page 469, 196 P.2d at page 921. This view was rejected by the Supreme Court whose holding is epitomized in the sentence first above quoted. In the course of its discussion the court used language which throws some light upon the present problem though not determinative of it. ‘The real issue is whether the 1914 amendment to section 1 of Article XIII froze the boundaries of cities, irrigation districts and and the like as of 1914 in so far as the taxation of the land of such public organizations is concerned. That is so because the acceptance of petitioner's contention would mean that no municipal corporation could thereafter annex property to it whether it then belonged to it or was acquired after the annexation and thereby secure the tax exemption to which it is entitled by reason of the location of the property within its boundaries.’ 32 Cal.2d at page 471, 196 P.2d at page 923. ‘The amendment, by referring to property which is not exempt, characterizes it—describes it as ‘outside’ the municipal corporation. Constitutional and statutory provisions on exemptions should be construed to apply prospectively as well as presently, that is, to act upon property from time to time as it is acquired or loses its character with reference to ownership, use and the like. Ordinarily their application is not limited to the character the property happens to possess at the particular time such provisions become effective.' 32 Cal.2d at page 472, 196 P.2d at page 923. ‘The constitutional amendment puts two qualifications on lands which are excluded from the exemption. They must be outside the municipal corporation and such ‘as were subject to taxation at the time of the acquisition of the same’ by the municipal corporation. Manifestly, the phrase ‘at the time of acquisition of the same’ refers to and modifies only the clause ‘as were subject to taxation’ and not the clause ‘located outside of the * * * corporation owning the same.’ That is to say, the amendment does not mean that property located outside the boundaries at the time of acquisition is taxable even though later included within the boundaries of the corporation, while property inside the corporation at the time of acquisition is not taxable.' 32 Cal.2d at page 473, 172 P.2d at page 924. The reasoning of this case points to the conclusion that outside property is discharged through annexation from an existing tax lien, for it has been basic law of this state for many years that the mere acquisition of taxable land by a municipality renders it thereafter tax exempt and immune to enforcement of any tax lien which was was upon it at the time of acquisition. This rule is based on grounds of public policy and exists independently of any statutory provision. See Smith v. City of Santa Monica, 162 Cal. 221, 222, 121 P. 920.
While it does not involve an annexation of outside land owned by a city, People v. Board of Supervisors, 126 Cal.App. 670, 15 P.2d 209, exemplifies the principles of the Smith case, supra, and gives it application which is persuasive at bar. That was a proceeding in mandate to compel cancellation of an assessment upon land which had been acquired by the state for park purposes, the property being subject to an existing tax lien at the time of its purchase by the state. The question was whether § 3804a Political Code required such cancellation. The terms of the statute are summarized on page 672 of 126 Cal.App., on page 210 of 15 P.2d: ‘The question then for determination is whether or not [a tax on] lands acquired by the state after the lien for taxes thereon has attached can be canceled by complying with the requirements of section 3804a of the Political Code. This section of said Code provides in part that when property is acquired and owned by the state, county, city, etc., and that prior to such ownership there had been an assessment of said property, which at the time of said assessment became a lien, and which because of such public ownership is not subject to sale for delinquent taxes, [the assessment] may, upon satisfactory proof thereof, be canceled by the officer having custody of the record thereof upon the order of the board of supervisors, or other governing board, with the written consent of the district attorney, city attorney, or other legal adviser of said board.’ The Board of Supervisors contended that the statute was violative of article XIII, § 6 and article XI, § 12 of the Constitution, reliance being placed upon City of Santa Monica v. Los Angeles County, 15 Cal.App. 710, 115 P. 945. The court differentiated that case as having arisen before the enactment of § 3804a Political Code, and further said: ‘[S]ince that decision was rendered there has been the enactment of a law providing for the cancellation of a lien for taxes attaching prior to the acquisition of the premises by the state. This law is contained in section 3804a of the Political Code, and if it is not in violation of the Constitution, then unquestionably the petitioner has the right to have the said assessment canceled.’ 126 Cal.App. at page 673, 15 P.2d at page 210. ‘We find nothing in this record indicating that the power of taxation has been surrendered by the state either by grant or contract. The facts before us show that the power of taxation was exercised, and that by operation of law it has ceased to be a charge upon the land for the reason that the land is now the property of the state. We are of the opinion that, upon the showing made by petitioner, it was the duty of respondents to order the cancellation of the said assessment.’ 126 Cal.App. at page 674, 15 P.2d at page 211.
This case was cited with approval in Department of Veterans Affairs of California v. Board of Supervisors, 31 Cal.2d 657, 659, 192 P.2d 22. The department there sought mandate to cancel an assessment upon property owned by it subject to a conditional sale to a veteran who was entitled to a tax exemption. The writ was denied upon the ground that the veteran was the real owner for tax purposes. Petitioner relied upon § 4986(e) and § 4986.4, Revenue and Taxation Code. (The former is quoted supra and the latter is here set forth in the margin.)4 In its discussion of the problem thus raised the court said at page 659 of 31 Cal.2d at page 23 of 192 P.2d: ‘By the provisions of section 1, Article XIII of the Constitution, property belonging to the state is exempt from taxation. Under section 4986 of the Revenue and Taxation Code, where the state acquired land after the lien for taxes has attached, such taxes may, under certain conditions, cease to become a charge upon the land. People v. Board of Supervisors of Calaveras County, 126 Cal.App. 670, 15 P.2d 209. The purpose, as stated in the code section is that the property ‘because of this public ownership’ should not be subjected to sale for delinquent taxes. Had the state agency been the owner of the property at the time the application for the cancellation of taxes was made, it would have been entitled to the relief sought. People v. Board of Supervisors of Calaveras County, supra.'5
Throughout the decisions runs the consistent principle that acquisition of property by a public agency automatically exempts it from taxation and from the enforcement of a tax lien previously attaching to the land. See Smith v. City of Santa Monica, supra, 162 Cal. 221, 121 P. 920; City of Los Angeles v. Ford, 12 Cal.2d 407, 410, 84 P.2d 1042; People v. Board of Supervisors, supra, 126 Cal.App. 670, 15 P.2d 209; Department of Veterans Affairs of California v. Board of Supervisors, supra, 31 Cal.2d 657, 192 P.2d 22; 6 Cal.Op.Atty.Gen. 72; 4 Cal.Op.Atty.Gen. 308. Appellants' reply brief says, at page 6: ‘We will concede that if respondent had, as it suggests, ‘done nothing’ as to payment it could have had review of the Board's denial of its application for cancellation. The taxes were unenforceable by reason of public ownership of the property. The city's ownership was a sure defense. (Smith v. City of Santa Monica, 162 Cal. 221 [121 P. 920]).' At page 25: ‘Cancellation under Section 4986 may merely clear dead wood from the tax roll, may merely eliminate uncollectible or unenforceable items therefrom.’
158 A.L.R. 563, 565: ‘While there is substantial authority to the contrary, it has been held or recognized in a majority of the cases, in the absence of specific controlling statutes relating thereto, that the acquisition of the title to land by a state or other governmental body acts to extinguish prior tax liens against the property.’ The principle is of course subject in this state to the exception stated in § 1 of article XIII, but there is nothing therein which expressly or impliedly forbids its application to property which is annexed to a city and thus ceases to be within the purview of the constitutional exception to the general rule of exemption. Controlling effect to the contrary cannot be given to City of Santa Monica v. Los Angeles County, supra, 15 Cal.App. 710, 115 P. 945, for it is out of line with the current of Supreme Court decisions.
This rule of exemption has been implemented by statute. Section 3804a, Political Code, is the predecessor of § 4986 Revenue and Taxation Code, quoted in footnote 1 supra. As amended in 1925 the Political Code section included as one of the grounds for cancellation the fact that an assessment was upon property ‘which after the time said tax or assessment became a lien was acquired and owned by the state, or by any county, city and county, municipal corporation, school district or other political subdivision and which, because of such public ownership, is not subject to sale for delinquent taxes.’ Stats., 1925, p. 432. That phrasing was carried substantially into Revenue and Taxation Code, § 4986. Of course, this language could not apply to outside lands mentioned in the constitutional provision because they were expressly made subject to taxation, which connoted a right of sale to enforce the lien. But this remained true only so long as the land in question lay outside the owning city's boundaries. When it was annexed it ceased to be within the terms of a constitutional exception and § 3804a and its successor, § 4986(e) became operative, requiring, because of the immunity to tax sale, that the tax be cancelled upon proper application to the Board of Supervisors. Though it uses the word ‘may’ the statute places a mandatory duty upon the board to cancel the tax when facts are shown which make a case under any subdivision of the statute. City of Los Angeles v. Board of Supervisors, 108 Cal.App. 655, 666, 292 P. 539; 6 Cal.Op.Atty.Gen. 72, 74.
Rock Creek Water Dist. v. County of Calaveras, 133 Cal.App.2d 141, 283 P.2d 740 is cited by appellant as being to the contrary. The Rock Creek Water District was located in Stanislaus County and in 1942 purchased property lying in Calaveras County which was ‘included’ within the district in December, 1948. The County of Calaveras continued to tax those lands for the years 1949–1950, 1950–1951, and 1951–1952. The district paid the taxes and then sued for refund. It was denied recovery of the 1949–1950 tax payment but prevailed with respect to the later ones. The ruling upon the 1949–1950 assessment stemmed from the fact that the inclusion proceeding of 1948 was found to be void. A validating act was passed which became effective on June 30, 1949. The court held that it could not be retroactive to the destruction of vested rights and therefore the tax which was levied while the land was not legally within the boundaries of the district could not be recovered. The right to collect that tax was declared to be a vested right which could not be defeated by subsequent validation of the inclusion proceeding. With this concept we cannot agree. Any vesting of the tax lien could be only conditional and would be defeated by annexation or inclusion in the district. The Rock Creek opinion does not discuss the effect of annexation upon an existing lien; it turns upon the effect of the validating act and rests upon the assumption that the tax lien was a vested right. We do not consider this case controlling at bar. See Wrenn v. Sutton, 65 Cal.App.2d Supp. 823, 827, 150 P.2d 589; 14 Am.Jur. § 79, p. 293.
In effect, Oakdale Irr. Dist. v. County of Calaveras, 133 Cal.App.2d 127, 283 P.2d 732 (decided the same day as Rock Creek), makes a holding contrary to the last mentioned case with respect to the effect of ‘inclusion’ upon an existing tax lien. Mandamus was there granted requiring cancellation of county taxes for 1948–1949 to 1953–1954 inclusive. Two irrigation districts were joint owners of the included lands. The proceeding therefor was not concluded by one of the districts until September 6, 1948, which was after the 1948–1949 tax lien date. But the court ordered cancellation of all the taxes in question. In this case, as in Rock Creek, there was no discussion of the effect of inclusion of outside lands upon an existing lien and this case cannot be considered authority upon that point.
Subdivision (e) of § 4986 was amended in 1955 by adding the words ‘and on property annexed after the lien date by the city owning it,’ thus making the subdivision read: ‘On property acquired after the lien date by the State or by any county, city, school district or other political subdivision and because of this public ownership not subject to sale for delinquent taxes, and on property annexed after the lien date by the city owning it.’ While it is true that an intention to change the law is ordinarily to be inferred from the amendment of a statute, that does not necessarily follow. When it is apparent from surrounding circumstances or otherwise that the amendment was designed merely to clarify the meaning of the existing statute, that effect will be attributed to it. Martin v. California Mut. Bldg. & Loan Ass'n, 18 Cal.2d 478, 484, 116 P.2d 71; W. R. Grace & Co. v. California Emp. Comm., 24 Cal.2d 720, 729, 151 P.2d 215; Koenig v. Johnson, 71 Cal.App.2d 739, 753, 163 P.2d 746. In the instant case the applications for cancellation were filed before the passage of the amending act which was signed by the Governor on June 1, 1955. The only amendment to § 4986 was the addition of the words ‘and on property annexed after the lien date by the city owning it’ to subdivision (e). ‘[T]he paramount purpose of all rules of construction is to ascertain the intent of the Legislature; and the rule is not operative and the presumption falls when it clearly appears that the change in the statute was made to express more clearly the original legislative intent. The Legislature does not necessarily admit that it did not by its prior enactment embrace a particular case by an amendment directly applicable to such case.’ Kennedy v. Truss, 1 Terry 424, 40 Del. 424, 13 A.2d 431, 434. ‘[A] change in a statute may be made merely to express more clearly the original intention of the Legislature [citation]. Thus an amendment to a statute making it directly applicable to a particular case is not necessarily an admission on the part of the Legislature that it did not originally cover such a case.’ School Dist. No. 18 v. Pondera County, 89 Mont. 342, 297 P. 498, 502. The amendment under discussion did not operate as a substantial change in the statute so far as concerns proceedings had before its effective date; it must be treated as a clarifying or interpretive enactment; that is to say, the annexation of outside property which had been acquired after lien date operated both before and after the amendment to afford a right to cancellation of the tax under § 4986(e).
Appellants say that the construction herein given to § 4986(e) would violate the constitutional provision proscribing gifts of public funds or property (Art. IV, § 31). We perceive no basis for this contention. The cancellation of the tax as a result of its becoming uncollectible (through incorporation into plaintiff city) is in no sense a gift. It is but the relinquishment of a nominal right, one which no longer possesses any substance.
We conclude that the annexation of the subject property rendered the tax no longer collectible, and that the court properly declared, so far as parcel 3 is concerned, that it was the duty of the Board of Supervisors to cancel said taxes pursuant to the application made by plaintiff. This ruling is limited to parcel 3, for it is the only one which was acquired after the tax lien date, and § 4986(e) was so limited at the time of the applications under discussion.
The tax having been paid under protest, § 5096(b), Revenue and Taxation Code, gave rise to a right to refund on parcel 3. This right is not dependent upon the tax being originally erroneous or invalid; it is the collection that must have been erroneous. Evans v. County of San Joaquin, 67 Cal.App.2d 452, 454–455, 154 P.2d 468; S. Siwel Co. v. County of Los Angeles, 27 Cal.2d 724, 731, 167 P.2d 177. When a right to cancellation has arisen under § 4986(e) because the tax is upon property whose public ownership forbids sale for delinquent taxes, the denial of cancellation is wrongful and the subsequent collection of the money is erroneous.
The court properly awarded judgment for such refund of taxes paid on account of parcel 3, unless perchance appellants are correct in their contention that mandamus to compel cancellation was plaintiff's exclusive remedy. The contrary is true with respect to parcels 1, 2 and 4, for they were not acquired after the lien date6 and were not within the purview of § 4986; except as otherwise provided by statute the right to recovery must turn upon the existence of some substantial compulsion in the payment; an accompanying protest cannot dispense with that requirement. Brahs v. Katcher, 106 Cal.App.2d 657, 659, 235 P.2d 619; 20 Cal.Jur. § 36, p. 963; 24 Cal.Jur. § 282, p. 311. The complaint at bar makes no allegation of a practical necessity to make the payment. It alleges no threat to sell for non-payment of the tax or the assertion or existence of an intention of the county to bring an action to collect the tax (Rev. & Tax.Code, § 3003). Payment was not necessary, for the pursuit of a declaratory relief action would effectively nullify the apparent lien. See, as to applicability of § 1060, Code Civ.Proc., Lord v. Garland, 27 Cal.2d 840, 852, 168 P.2d 5; 15 Cal.Jur.2d § 62, p. 211; Annotation, 11 A.L.R.2d 359. The only explanation offered by counsel in the briefs or upon oral argument is uncertainty as to the appropriate remedy to be pursued. This is not enough to make the payment involuntary. There can be no recovery of taxes paid on parcels 1, 2 and 4.
Sections 5136 and 5138, Revenue and Taxation Code, do not assist respondent. They provide: § 5136. ‘After taxes are payable, any property owner may pay the taxes on his property under protest. A payment under protest is not a voluntary payment.’ § 5138. ‘Within six months after the payment, an action may be brought against a county or a city in the superior court to recover the taxes paid under protest.’ But § 5139 limits the action to one for recovery of a tax based on an ‘assessment claimed to be void’ and § 5141 provides for recovery of the tax where the court ‘finds that the assessment complained of is void in whole or in part.’ No such claim is made here. It is conceded that the assessment was made against these lands when they were subject to county taxation and that it was and is a valid assessment. If the word assessment were construed to mean tax the result would be the same, for it is conceded by both sides that this tax was valid and created a lien which was originally good and enforceable.
That mandamus would not lie to compel favorable action upon plaintiff's petition for cancellation is now established by Vista Irr. Dist. v. Board of Supervisors, 32 Cal.2d 477, 196 P.2d 926. The rule is reiterated in Security-First Nat. Bank v. Board of Supervisors, 35 Cal.2d 323, 327, 217 P.2d 948. The basis of these decisions is that an action for refund is an adequate remedy. Manifestly, failure to seek mandate could not be a bar to maintenance of the present action.
The complaint shows that the tax paid by plaintiff on account of parcel 3 was $10,492.74. The judgment is modified by changing the sentence which begins with the words ‘The Court further declares' in line 3 of page 2 thereof (page 30 of clerk's transcript on appeal) to read as follows: ‘The Court further declares that when there was filed with the defendants, by the plaintiff, the applications for cancellation of taxes, attached to plaintiff's complaint herein and marked as Exhibits ‘A’, ‘B’, ‘C’ and ‘D’, it became the duty of said defendants to cancel all taxes on parcel 3 of such property; that the defendants should have granted the application which is Exhibit ‘C’ and should have cancelled all of such taxes upon said parcel; that defendants were not obligated to grant any of the other applications.'
The amount of the judgment is reduced to $10,492.74, with interest thereon at the rate of five per cent per annum from October 28, 1955 to November 20, 1956, plus costs in the superior court.
As thus modified the judgment is affirmed. Each party to bear its own costs on appeal.
1. § 4986. ‘All or any portion of any uncollected tax, penalty, or costs, heretofore or hereafter levied, may, on satisfactory proof, be canceled by the auditor on order of the board of supervisors with the written consent of the district attorney if it was levied or charged: * * * (e) On property acquired after the lien date by the State or by any county, city, school district or other political subdivision and because of this public ownership not subject to sale for delinquent taxes * * *.’
2. § 5096. ‘On order of the board of supervisors, any taxes paid before or after delinquency shall be refunded if they were: (a) Paid more than once. (b) Erroneously or illegally collected. (c) Paid on an assessment in excess of the cash value of the property by reason of the assessor's clerical error. (d) Paid on an assessment of improvements when the improvements did not exist on the lien date.’
3. See, as to the limited function of a demurrer to the complaint in an action for declaratory relief, Bennett v. Hibernia Bank, 47 Cal.2d 540, 549, 305 P.2d 20.
4. § 4986.4. ‘Whenever any property has been deeded to the Veterans' Welfare Board pursuant to Division 4 of the Military and Veterans Code and a petition has been filed with any county or city for the cancellation of taxes pursuant to this article, the district attorney or city attorney, as the case may be, shall investigate the facts stated in the petition, and if he finds them to be true, shall approve the petition and recommend to the legislative body that the taxes described in the petition be canceled.’
5. In its discussion of § 4986.4, the court said: ‘In 1932, this court held that a state agency which had acquired property, could obtain cancellation of the taxes which were a lien on the property only if the property was impressed with a public use. La Mesa etc. Irr. Dist. v. Hornbeck, 216 Cal. 730, 17 P.2d 143.’ 31 Cal.2d at pages 659–660, 192 P.2d at page 24. This test of devotion to public use was definitely rejected in Anderson-Cottonwood Irr. Dist. v. Klukkert, supra, 13 Cal.2d 191, 198, 88 P.2d 685, and the La Mesa case was held not controlling.
6. It is unnecessary to decide whether an application made after the effective date of the amendment would be sufficient if it showed the fact of annexation but not that of acquisition after lien date.
FOX, Acting P. J., concurs.