EN BANC
[G.R. No. 9876. December 8, 1914. ]
THE UNITED STATES, Plaintiff-Appellee, v. ADRIANO PANLILIO, Defendant-Appellant.
Pedro Abad Santos, for Appellant.
Solicitor-General Corpus, for Appellee.
SYLLABUS
1. ANIMALS; REMOVAL OF CARABAOS FROM QUARANTINE. — Act No. 1760, entitled "An act to prevent the introduction into the Philippine Islands of dangerous communicable animal diseases, to prevent the spread of such diseases within the Islands, and for other purposes," does not punish the removal of carabaos, which had been exposed to a dangerous communicable disease, from a quarantine established on a portion of the premises of the accused, said carabaos having been simply removed from the corral in which they were quarantined and worked upon the adjoining lands of the accused, and they, at the time, not suffering from a dangerous communicable disease, or being recently imported, and the Secretary of the Interior not having made the declaration provided for in section 5 of that Act, and the said animals not having been driven or taken by the accused upon the highway, or from one island, province, municipality, township or settlement to another.
2. ID.; QUARANTINE REGULATIONS OF BUREAU OF AGRICULTURE. — While Act No. 1760, entitled as aforesaid, authorizes the Director of Agriculture, among other things, "to require that animals which are suffering from dangerous communicable diseases or have been exposed thereto be placed in quarantine at such place and for such time as may be deemed by him necessary to prevent the spread of the disease," a violation of the orders of the Bureau of Agriculture made in pursuance of such authority will not be held to be criminal unless the statute expressly makes it so and provides a punishment.
3. ID.; ID.; VIOLATION OF. — Said Act, although it authorizes the Director of Agriculture to do certain things, as aforesaid, nowhere makes a violation of the orders of the Bureau of Agriculture unlawful or criminal, nor does it provide a punishment for such violation.
4. ID.; ID.; ID. — Although the Act provides that "any person violating any of the provisions of this Act shall, upon conviction, be punished by a fine of not more than one thousand pesos, or by imprisonment for not more than six months, or by both such fine and imprisonment, in the discretion of the court, for each offense," such provision is not broad enough to cover a violation of an order of the Bureau of Agriculture lawfully made and promulgated under the authority conferred upon said bureau by said Act, the violation of such an order not being a violation "of the provisions of this Act."cralaw virtua1aw library
5. ID.; ID.; ID. — Orders of the Bureau of Agriculture issued in pursuance of the authority conferred by Act No. 1760, while they have, in a sense, the force of law, are not penal statutes, and a violation of such orders is not a penal offense under said Act, the statute itself not expressly making it so.
6. CRIMINAL LAW; COMPLAINT; CONVICTION OF OFFENSE INCLUDED IN CHARGE. — While the acts charged .in the information do not constitute a violation of any of the provisions of Act No. 1760, they do constitute a violation of article 581, paragraph 2, of the Penal Code, and, while the information charges that the acts set forth therein constitute a violation of Act No. 1760, the accused may be convicted of a violation of the Penal Code.
2. ID.; QUARANTINE REGULATIONS OF BUREAU OF AGRICULTURE. — While Act No. 1760, entitled as aforesaid, authorizes the Director of Agriculture, among other things, "to require that animals which are suffering from dangerous communicable diseases or have been exposed thereto be placed in quarantine at such place and for such time as may be deemed by him necessary to prevent the spread of the disease," a violation of the orders of the Bureau of Agriculture made in pursuance of such authority will not be held to be criminal unless the statute expressly makes it so and provides a punishment.
3. ID.; ID.; VIOLATION OF. — Said Act, although it authorizes the Director of Agriculture to do certain things, as aforesaid, nowhere makes a violation of the orders of the Bureau of Agriculture unlawful or criminal, nor does it provide a punishment for such violation.
4. ID.; ID.; ID. — Although the Act provides that "any person violating any of the provisions of this Act shall, upon conviction, be punished by a fine of not more than one thousand pesos, or by imprisonment for not more than six months, or by both such fine and imprisonment, in the discretion of the court, for each offense," such provision is not broad enough to cover a violation of an order of the Bureau of Agriculture lawfully made and promulgated under the authority conferred upon said bureau by said Act, the violation of such an order not being a violation "of the provisions of this Act."cralaw virtua1aw library
5. ID.; ID.; ID. — Orders of the Bureau of Agriculture issued in pursuance of the authority conferred by Act No. 1760, while they have, in a sense, the force of law, are not penal statutes, and a violation of such orders is not a penal offense under said Act, the statute itself not expressly making it so.
6. CRIMINAL LAW; COMPLAINT; CONVICTION OF OFFENSE INCLUDED IN CHARGE. — While the acts charged .in the information do not constitute a violation of any of the provisions of Act No. 1760, they do constitute a violation of article 581, paragraph 2, of the Penal Code, and, while the information charges that the acts set forth therein constitute a violation of Act No. 1760, the accused may be convicted of a violation of the Penal Code.
D E C I S I O N
MORELAND, J.:
This is an appeal from a judgment of the Court of First Instance of the Province of Pampanga convicting the accused of a violation of the law relating to the quarantining of animals suffering from dangerous communicable or contagious diseases and sentencing him to pay a fine of p40, with subsidiary imprisonment in case of insolvency, and to pay the costs of the trial.
The information charges: "That on or about the 22d day of February, 1913, all of the carabaos belonging to the above-named accused having been exposed to the dangerous and contagious disease known as rinderpest, were, in accordance with an order of a duly-authorized agent of the Director of Agriculture, duly quarantined in a corral in the barrio of Masamat, municipality of Mexico, Province of Pampanga, P. I.; that, on said date and at said place, the said accused, Adriano Panlilio, illegally and voluntarily and without being authorized so to do, and while the quarantine against said carabaos was still in force, permitted and ordered said carabaos to be taken from the corral in which they were then quarantined and conducted from one place to another; that by virtue of said orders of the accused, his servants and agents took the said carabaos from the said corral and drove them from one place to another for the purpose of working them."cralaw virtua1aw library
The defendant demurred to this information on the ground that the acts complained of did not constitute a crime. The demurrer was overruled and the defendant duly excepted and pleaded not guilty.
From the evidence introduced by the prosecution on the trial of the cause it appears that the defendant was notified in writing on February 22, 1913, by a duly authorized agent of the Director of Agriculture, that all of his carabaos in the barrio of Masamat, municipality of Mexico, Pampanga Province, had been exposed to the disease commonly known as rinderpest, and that said carabaos were accordingly declared under quarantine, and were ordered kept in a corral designated by an agent of the Bureau of Agriculture and were to remain there until released by further order of the Director of Agriculture.
It further appears from the testimony of the witnesses. for the prosecution that the defendant fully understood that, according to the orders of the Bureau of Agriculture, he was not to remove the animals, or to permit anyone else to remove them, from the quarantine in which they had been placed. In spite, however, of all this, the carabaos were taken from the corral by the commands of the accused and driven from place to place on his hacienda, and were used as work animals thereon in the same manner as if they had not been quarantined.
The contention of the accused is that the facts alleged in the information and proved on the trial do not constitute a violation of Act No. 1760 or any portion thereof.
We are forced to agree with this contention.
The original information against the accused charged a violation of section 6 of Act No. 1760 committed by the accused in that he ordered and permitted his carabaos, which, at the time, were in quarantine, to be taken from quarantine and moved from one place to another on his hacienda. An amended information was filed. It failed, however, to specify the section of Act No. 1760 alleged to have been violated, evidently leaving that to be ascertained by the court on the trial.
The only sections of Act No. 1760 which prohibit acts and pronounce them unlawful are 3, 4 and 5. This case does not fall within any of them. Section 3 provides, in effect, that it shall be unlawful for any person, firm, or corporation knowingly to ship or otherwise bring into the Philippine Islands any animal suffering from, infected with, or dead of any dangerous communicable disease, or any of the effects pertaining to such animal which are liable to introduce such disease into the Philippine Islands. Section 4 declares, substantially, that it shall be unlawful for any person, firm, or corporation knowingly to ship, drive or otherwise take or transport from one island, province, municipality, township, or settlement to another any domestic animal suffering from any dangerous communicable disease or to expose such animal either alive or dead on any public road or highway where it may come in contact with other domestic animals. Section 5 provides that whenever the Secretary of the Interior shall declare that a dangerous communicable animal disease prevails in any island, province, municipality, township, or settlement and that there is danger of spreading such disease by shipping, driving or otherwise transporting or taking out of such island, province, municipality, township, or settlement any class of domestic animal, it shall be unlawful for any person, firm or corporation to ship, drive or otherwise remove the kind of animals so specified from such locality except when accompanied by a certificate issued by authority of the Director of Agriculture stating the number and the kind of animals to be shipped, driven, taken or transported, their destination, manner in which they are authorized to be shipped, driven, taken, or transported, and their brands and distinguishing marks.
A simple reading of these sections demonstrates clearly that the case at bar does not fall within any of them. There is no question here of importation and there is no charge or proof that the animals in question were suffering from a dangerous communicable disease or that the Secretary of the Interior had made the declaration provided for in section 5 or that the accused had driven or taken said animals from one island, province, municipality, township or settlement to another. It was alleged in the information and proved on the trial that the animals had been exposed to a dangerous communicable disease and that they had been placed in a corral in quarantine on the premises of the accused and that he, in violation of the quarantine, had taken them from the corral and worked them upon the lands adjoining. They had not been in the highway nor moved from one municipality or settlement to another. They were left upon defendant’s hacienda, where they were quarantined, and there worked by the servants of the accused.
The Solicitor-General in his brief in this court admits that the sections referred to are not applicable to the case at bar and also admits that section 7 of said Act is not applicable. This section provides: "Whenever the Director of Agriculture shall order any animal placed in quarantine in accordance with the provisions of this Act, the owner of such animal, or his agent, shall deliver it at the place designated for the quarantine and shall provide it with proper food, water, and attendance. Should the owner or his agent fail to comply with this requirement the Director of Agriculture may furnish supplies and attendance needed, and the reasonable cost of such supplies and attendance shall be collectible from the owner or his agent."cralaw virtua1aw library
We are in accord with the opinion expressed by the Solicitor-General with respect to this section, as we are with his opinion as to sections 3, 4, and 6. The law nowhere makes it a penal offense to refuse to comply with the provisions of section 7, nor is the section itself so phrased as to warrant the conclusion that it was intended to be a penal section. The section provides the means by which the refusal of the owner to comply therewith shall be overcome and the punishment, if we may call it punishment, which he shall receive by reason of that refusal. It has none of the aspects of a penal provision or the form or substance of such a provision. It does not prohibit any act. It does not compel an act nor does it make the refusal to comply unlawful, nor does it really punish or impose a criminal penalty. The other sections of the law under which punishments may be inflicted are so phrased as to make the prohibited act unlawful, and section 8 provides the punishment for any act declared unlawful by the law.
The Solicitor-General suggests, but does not argue, that section 6 is applicable to the case at bar. Section 6 simply authorizes the Director of Agriculture to do certain things, among them, paragraph (c) "to require that animals which art suffering from dangerous communicable diseases or have been exposed thereto be placed in quarantine at such place and for such time as may be deemed by him necessary to prevent the spread of the disease." Nowhere in the law, however, is the violation of the orders of the Bureau of Agriculture prohibited or made unlawful, nor is there provided any punishment for a violation of such orders. Section 8 provides that "any person violating any of the provisions of this Act shall, upon conviction, be punished by a fine of not more than one thousand pesos, or by imprisonment for not more than six months, or by both such fine and imprisonment, in the discretion of the court, for each offense." ’A violation of the orders of the Bureau of Agriculture, as authorized by paragraph (c), is not a violation of the provisions of the Act. The orders of the Bureau of Agriculture, while they may possibly be said to have the force of law, are not statutes and particularly not penal statutes, and a violation of such orders is not a penal offense unless the statute itself somewhere makes a violation thereof unlawful and penalizes it. Nowhere in Act No. 1760 is a violation of the orders of the Bureau of Agriculture made a penal offense, nor is such violation punished in any way therein.
Finally, it is contended by the Government that if the offense stated in the information and proved upon the trial does not constitute a violation of any of the provisions of Act No. 1760, it does constitute a violation of article 581, paragraph 2, of the Penal Code. It provides:jgc:chanrobles.com.ph
"A fine of not less than fifteen and not more than seventy pesetas and censure shall be imposed upon: . . .
"2. Any person who shall violate the regulations, ordinances, or proclamations issued with reference to any epidemic disease among animals, the extermination of locusts, or any other similar plague."cralaw virtua1aw library
It is alleged in the information and was proved on the trial that the Bureau of Agriculture had ordered a quarantine of the carabaos at the time and place mentioned; that the quarantine had been executed and completed and the animals actually segregated and confined; that the accused, in violation of such quarantine and of the orders of the Bureau of Agriculture, duly promulgated, broke the quarantine, removed the animals and used them in the ordinary work of his plantation. We consider these acts a plain violation of the article of the Penal Code above quoted. The fact that the information in its preamble charged a violation of Act No. 1760 does not prevent us from finding the accused guilty of a violation of an article of the Penal Code. The complaint opens as follows: "The undersigned accuses Adriano Panlilio of a violation of Act No. 1760, committed as follows:" Then follows the body of the information already quoted in this opinion. We would not permit an accused to be convicted under one Act when he is charged with the violation of another, if the change from one statute to another involved a change of the theory of the trial or required of the defendant a different defense or surprised him in any other way. The allegations required under Act No. 1760 include those required under article 581. The accused could have defended himself in no different manner if he had been expressly charged with a violation of article 581.
In the case of United States v. Paua (6 Phil. Rep., 740), the information stating the facts upon which the charge was founded terminated with this expression: "In violation of section 315 of Act No. 355 of the Philippine Commission. in effect on the 6th of February, 1902."cralaw virtua1aw library
In the resolution of this case the Supreme Court found that the facts set forth in the information and proved on the trial did not constitute a violation of section 315 of Act No. 355 as alleged in the information, but did constitute a violation of article 387 in connection with article 383 of the Penal Code, and accordingly convicted the accused under those articles and sentenced him to the corresponding penalty.
In that case the court said: "The foregoing facts, duly established as they were by the testimony of credible witnesses who heard and saw everything that occurred, show beyond peradventure of doubt that the crime of attempted bribery, as defined in article 387, in connection with article 383 of the Penal Code, has been committed, it being immaterial whether it is alleged in the complaint that section 315 of Act No. 355 of the Philippine Commission was violated by the defendant, as the same recites facts and circumstances sufficient to constitute the crime of bribery as defined and punished in the aforesaid articles of the Penal Code." (U. S. v. Lim San, 17 Phil. Rep., 273; U. S. v. Jeffrey, 15 Phil. Rep., 391; U. S. v. Guzman, 26 Phil. Rep., 22.)
The accused is accordingly convicted of a violation of article 581, paragraph 2, of the Penal Code, and is sentenced to pay a fine of seventy pesetas (P14) and censure, with subsidiary imprisonment in case of insolvency, and the costs of this appeal. So ordered.
Arellano, C.J., Torres, Carson and Araullo, JJ., concur.
Johnson, J., dissents.
The information charges: "That on or about the 22d day of February, 1913, all of the carabaos belonging to the above-named accused having been exposed to the dangerous and contagious disease known as rinderpest, were, in accordance with an order of a duly-authorized agent of the Director of Agriculture, duly quarantined in a corral in the barrio of Masamat, municipality of Mexico, Province of Pampanga, P. I.; that, on said date and at said place, the said accused, Adriano Panlilio, illegally and voluntarily and without being authorized so to do, and while the quarantine against said carabaos was still in force, permitted and ordered said carabaos to be taken from the corral in which they were then quarantined and conducted from one place to another; that by virtue of said orders of the accused, his servants and agents took the said carabaos from the said corral and drove them from one place to another for the purpose of working them."cralaw virtua1aw library
The defendant demurred to this information on the ground that the acts complained of did not constitute a crime. The demurrer was overruled and the defendant duly excepted and pleaded not guilty.
From the evidence introduced by the prosecution on the trial of the cause it appears that the defendant was notified in writing on February 22, 1913, by a duly authorized agent of the Director of Agriculture, that all of his carabaos in the barrio of Masamat, municipality of Mexico, Pampanga Province, had been exposed to the disease commonly known as rinderpest, and that said carabaos were accordingly declared under quarantine, and were ordered kept in a corral designated by an agent of the Bureau of Agriculture and were to remain there until released by further order of the Director of Agriculture.
It further appears from the testimony of the witnesses. for the prosecution that the defendant fully understood that, according to the orders of the Bureau of Agriculture, he was not to remove the animals, or to permit anyone else to remove them, from the quarantine in which they had been placed. In spite, however, of all this, the carabaos were taken from the corral by the commands of the accused and driven from place to place on his hacienda, and were used as work animals thereon in the same manner as if they had not been quarantined.
The contention of the accused is that the facts alleged in the information and proved on the trial do not constitute a violation of Act No. 1760 or any portion thereof.
We are forced to agree with this contention.
The original information against the accused charged a violation of section 6 of Act No. 1760 committed by the accused in that he ordered and permitted his carabaos, which, at the time, were in quarantine, to be taken from quarantine and moved from one place to another on his hacienda. An amended information was filed. It failed, however, to specify the section of Act No. 1760 alleged to have been violated, evidently leaving that to be ascertained by the court on the trial.
The only sections of Act No. 1760 which prohibit acts and pronounce them unlawful are 3, 4 and 5. This case does not fall within any of them. Section 3 provides, in effect, that it shall be unlawful for any person, firm, or corporation knowingly to ship or otherwise bring into the Philippine Islands any animal suffering from, infected with, or dead of any dangerous communicable disease, or any of the effects pertaining to such animal which are liable to introduce such disease into the Philippine Islands. Section 4 declares, substantially, that it shall be unlawful for any person, firm, or corporation knowingly to ship, drive or otherwise take or transport from one island, province, municipality, township, or settlement to another any domestic animal suffering from any dangerous communicable disease or to expose such animal either alive or dead on any public road or highway where it may come in contact with other domestic animals. Section 5 provides that whenever the Secretary of the Interior shall declare that a dangerous communicable animal disease prevails in any island, province, municipality, township, or settlement and that there is danger of spreading such disease by shipping, driving or otherwise transporting or taking out of such island, province, municipality, township, or settlement any class of domestic animal, it shall be unlawful for any person, firm or corporation to ship, drive or otherwise remove the kind of animals so specified from such locality except when accompanied by a certificate issued by authority of the Director of Agriculture stating the number and the kind of animals to be shipped, driven, taken or transported, their destination, manner in which they are authorized to be shipped, driven, taken, or transported, and their brands and distinguishing marks.
A simple reading of these sections demonstrates clearly that the case at bar does not fall within any of them. There is no question here of importation and there is no charge or proof that the animals in question were suffering from a dangerous communicable disease or that the Secretary of the Interior had made the declaration provided for in section 5 or that the accused had driven or taken said animals from one island, province, municipality, township or settlement to another. It was alleged in the information and proved on the trial that the animals had been exposed to a dangerous communicable disease and that they had been placed in a corral in quarantine on the premises of the accused and that he, in violation of the quarantine, had taken them from the corral and worked them upon the lands adjoining. They had not been in the highway nor moved from one municipality or settlement to another. They were left upon defendant’s hacienda, where they were quarantined, and there worked by the servants of the accused.
The Solicitor-General in his brief in this court admits that the sections referred to are not applicable to the case at bar and also admits that section 7 of said Act is not applicable. This section provides: "Whenever the Director of Agriculture shall order any animal placed in quarantine in accordance with the provisions of this Act, the owner of such animal, or his agent, shall deliver it at the place designated for the quarantine and shall provide it with proper food, water, and attendance. Should the owner or his agent fail to comply with this requirement the Director of Agriculture may furnish supplies and attendance needed, and the reasonable cost of such supplies and attendance shall be collectible from the owner or his agent."cralaw virtua1aw library
We are in accord with the opinion expressed by the Solicitor-General with respect to this section, as we are with his opinion as to sections 3, 4, and 6. The law nowhere makes it a penal offense to refuse to comply with the provisions of section 7, nor is the section itself so phrased as to warrant the conclusion that it was intended to be a penal section. The section provides the means by which the refusal of the owner to comply therewith shall be overcome and the punishment, if we may call it punishment, which he shall receive by reason of that refusal. It has none of the aspects of a penal provision or the form or substance of such a provision. It does not prohibit any act. It does not compel an act nor does it make the refusal to comply unlawful, nor does it really punish or impose a criminal penalty. The other sections of the law under which punishments may be inflicted are so phrased as to make the prohibited act unlawful, and section 8 provides the punishment for any act declared unlawful by the law.
The Solicitor-General suggests, but does not argue, that section 6 is applicable to the case at bar. Section 6 simply authorizes the Director of Agriculture to do certain things, among them, paragraph (c) "to require that animals which art suffering from dangerous communicable diseases or have been exposed thereto be placed in quarantine at such place and for such time as may be deemed by him necessary to prevent the spread of the disease." Nowhere in the law, however, is the violation of the orders of the Bureau of Agriculture prohibited or made unlawful, nor is there provided any punishment for a violation of such orders. Section 8 provides that "any person violating any of the provisions of this Act shall, upon conviction, be punished by a fine of not more than one thousand pesos, or by imprisonment for not more than six months, or by both such fine and imprisonment, in the discretion of the court, for each offense." ’A violation of the orders of the Bureau of Agriculture, as authorized by paragraph (c), is not a violation of the provisions of the Act. The orders of the Bureau of Agriculture, while they may possibly be said to have the force of law, are not statutes and particularly not penal statutes, and a violation of such orders is not a penal offense unless the statute itself somewhere makes a violation thereof unlawful and penalizes it. Nowhere in Act No. 1760 is a violation of the orders of the Bureau of Agriculture made a penal offense, nor is such violation punished in any way therein.
Finally, it is contended by the Government that if the offense stated in the information and proved upon the trial does not constitute a violation of any of the provisions of Act No. 1760, it does constitute a violation of article 581, paragraph 2, of the Penal Code. It provides:jgc:chanrobles.com.ph
"A fine of not less than fifteen and not more than seventy pesetas and censure shall be imposed upon: . . .
"2. Any person who shall violate the regulations, ordinances, or proclamations issued with reference to any epidemic disease among animals, the extermination of locusts, or any other similar plague."cralaw virtua1aw library
It is alleged in the information and was proved on the trial that the Bureau of Agriculture had ordered a quarantine of the carabaos at the time and place mentioned; that the quarantine had been executed and completed and the animals actually segregated and confined; that the accused, in violation of such quarantine and of the orders of the Bureau of Agriculture, duly promulgated, broke the quarantine, removed the animals and used them in the ordinary work of his plantation. We consider these acts a plain violation of the article of the Penal Code above quoted. The fact that the information in its preamble charged a violation of Act No. 1760 does not prevent us from finding the accused guilty of a violation of an article of the Penal Code. The complaint opens as follows: "The undersigned accuses Adriano Panlilio of a violation of Act No. 1760, committed as follows:" Then follows the body of the information already quoted in this opinion. We would not permit an accused to be convicted under one Act when he is charged with the violation of another, if the change from one statute to another involved a change of the theory of the trial or required of the defendant a different defense or surprised him in any other way. The allegations required under Act No. 1760 include those required under article 581. The accused could have defended himself in no different manner if he had been expressly charged with a violation of article 581.
In the case of United States v. Paua (6 Phil. Rep., 740), the information stating the facts upon which the charge was founded terminated with this expression: "In violation of section 315 of Act No. 355 of the Philippine Commission. in effect on the 6th of February, 1902."cralaw virtua1aw library
In the resolution of this case the Supreme Court found that the facts set forth in the information and proved on the trial did not constitute a violation of section 315 of Act No. 355 as alleged in the information, but did constitute a violation of article 387 in connection with article 383 of the Penal Code, and accordingly convicted the accused under those articles and sentenced him to the corresponding penalty.
In that case the court said: "The foregoing facts, duly established as they were by the testimony of credible witnesses who heard and saw everything that occurred, show beyond peradventure of doubt that the crime of attempted bribery, as defined in article 387, in connection with article 383 of the Penal Code, has been committed, it being immaterial whether it is alleged in the complaint that section 315 of Act No. 355 of the Philippine Commission was violated by the defendant, as the same recites facts and circumstances sufficient to constitute the crime of bribery as defined and punished in the aforesaid articles of the Penal Code." (U. S. v. Lim San, 17 Phil. Rep., 273; U. S. v. Jeffrey, 15 Phil. Rep., 391; U. S. v. Guzman, 26 Phil. Rep., 22.)
The accused is accordingly convicted of a violation of article 581, paragraph 2, of the Penal Code, and is sentenced to pay a fine of seventy pesetas (P14) and censure, with subsidiary imprisonment in case of insolvency, and the costs of this appeal. So ordered.
Arellano, C.J., Torres, Carson and Araullo, JJ., concur.
Johnson, J., dissents.
