96-462

No. 96-462

IN THE SUPREME COURT OF THE STATE OF MONTANA

1997

CITY OF BILLINGS,

Plaintiff and Respondent,

v.

COUNTY WATER DISTRICT OF

BILLINGS HEIGHTS,

Defendant and Appellant.

APPEAL FROM: District Court of the Thirteenth Judicial District,

In and for the County of Yellowstone,

The Honorable G. Todd Baugh, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Bruce A. Fredrickson, Antoinette M. Tease, Crowley,

Haughey, Hanson, Toole & Dietrich, Billings,

Montana

For Respondent:

James L. Tillotson, Billings City Attorney,

Billings, Montana

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Submitted on Briefs: December 5, 1996

Decided: February 28, 1997

Filed:

__________________________________________

Clerk

Justice William E. Hunt, Sr., delivered the Opinion of the Court.

 Appellant County Water District of Billings Heights (the

District) appeals from the order issued by the Thirteenth Judicial

District Court, Yellowstone County, denying its application for a

preliminary injunction.

 We reverse.

 The question before us is whether the District Court

manifestly abused its discretion in denying the District's

application for a preliminary injunction that would enjoin the City

of Billings (the City) from enforcing against the District water

rate increases approved by the Billings City Council.

 BACKGROUND

 In 1963, the City and the District entered into a contract

whereby the District agreed to purchase water from the City. The

District in turn intended to sell the water to its own customers. 

The contract states, in relevant part:

(3) Water Rate:

 In addition to building the aforesaid 16-inch main

 from Sixth Avenue North and North Twelfth Street to

the pumping facilities, the District agrees to pay for

the water obtained from the City each month at the "OP"

rate as follows:

 Water Rate per 100 Cubic Feet:

 First 1M $.37

 Next 1M .23

 Next 48M .16

 Next 50M .12

 Next 900M .08

 Over 1,000,000 .07

Payment of the charges for water used by the 

District shall be subject to the same discount and

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other rules applying to the accounts of other users

of City water.

 The City agrees that it shall not apply to any

court, commission or other authority for any

increase in the District's aforesaid "OP" rate

unless it applies simultaneously for the same

percentage of increase in the rates which apply to

all other users of the City's water.

 At the time the parties entered into the contract, the Montana

Public Service Commission (PSC) controlled the setting of municipal

utility rates. In City of Billings v. Public Service Commission

(1981), 193 Mont. 358, 631 P.2d 1295, this Court held that the PSC

could set water rates that were inconsistent with the water rate

provisions of the 1963 contract between the City and the District,

but that its authority to do so could only be exercised "if the

contract poses an immediate threat to the utility's ability to

serve or if the contract adversely affects the utility's rate

structure." City of Billings, 631 P.2d at 1304.

 However, in 1981, the Montana Legislature enacted the first of

a number of statutes which effectively abrogated the PSC's power to

oversee water rates. Section 69-7-101, MCA (1981), gave to

municipalities the "power and authority to regulate, establish, and

change, as it considers proper, rates, charges, and classifications

imposed for utility services to its inhabitants and other persons

served by municipal utility systems." The rates charged by the

municipality had to be "reasonable and just," and could not be

raised to yield more than a 12% increase in total annual revenues

unless the increase was approved by the PSC. Sections 69-7-101 and

-102, MCA (1981). Section 69-7-201, MCA, also enacted in 1981,

authorized municipal utilities to create, with some limitations,

their own operating rules. By 1995, with the amendment of 69-7-

101, MCA and the repeal of 69-7-102, MCA, effectively allowing

municipalities to set their own utility rates without PSC review, 

the control PSC once had over utility rates had diminished

dramatically; the control and oversight of municipal utility rates

was now largely in the hands of the municipalities themselves.

 In 1993, the City increased its water rates. While the

average city water customer experienced a 9.2% increase in her

monthly water bill as a result of the rate increase, the District

experienced a 32% increase in its monthly water bill. The

District, in accordance with its belief that the 1963 contract

prohibited the City from raising the District's water rate payment

obligations by a percentage greater than the percentage increase

imposed on its other customers, increased its monthly payment to

the City by 9.2%.

 In August 1994, the City initiated this action to recover from

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the District the difference between the water rate it enacted in

1993 and the rate the District has been paying since that time. 

The District answered, alleging that the rate increase was, in a

number of respects, unconstitutional.

 On May 13, 1996, the Billings City Council enacted another

water rate increase. This increase, effective July 1, 1996, raised

the District's water bill by 123% over the 1993 rates. No other

City water customer experienced as dramatic a percentage increase

as did the District.

 On May 14, 1996, the District filed an application for a

preliminary injunction to prevent the City from enforcing the 1996

rate increase against the District until the court had an

opportunity to rule on the constitutional issues raised by the

District in its answer to the City's 1994 complaint. After a

hearing, the court issued an order on June 28, 1996, denying the

District's application. The District appeals from this order.

 STANDARD OF REVIEW

 A ruling on a motion for preliminary injunction is subject to 

the discretion of the district court. Van Loan v. Van Loan (1995),

271 Mont. 176, 178-79, 895 P.2d 614, 615. We will review a

district court's decision regarding a preliminary injunction motion

to determine if the court has manifestly abused its discretion. 

Van Loan, 895 P.2d at 615 (citation omitted). If, however, the

district court arrives at a conclusion of law, "no discretion is

involved, and therefore, we review the district court's conclusions

of law to determine whether the district court's interpretation of

the law is correct." Knudson v. McDunn (1995), 271 Mont. 61, 64,

894 P.2d 295, 297 (citation omitted).

 DISCUSSION

 Did the District Court manifestly abuse its discretion in

denying the District's application for a preliminary injunction

that would enjoin the City from enforcing against the District

water rate increases approved by the Billings City Council?

 The purpose of a preliminary injunction is to prevent "further

injury or irreparable harm by preserving the status quo of the

subject in controversy pending an adjudication on the merits."

Knudson, 894 P.2d at 297-98. The District applied for a

preliminary injunction pursuant to 27-19-201(3), MCA, which

states that a preliminary injunction may be granted

(3) when it appears during the litigation that the

adverse party is doing or threatens or is about to do or

is procuring or suffering to be done some act in

violation of the applicant's rights, respecting the

subject of the action, and tending to render the judgment

ineffectual; .... (Emphasis added.)

The District contends that the application here of the statutory

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scheme which replaced PSC control over utility rates with municipal

control ( 69-7-101, MCA (1981) (amended 1995); 69-7-102, MCA

(1981)(repealed 1995); and, 69-7-201, MCA (1981) (collectively

referred to herein as "the statutes")) impairs its contractual

relationship with the City in violation of the Montana and United

States Constitutions. The District further contends that because

of the nature of a constitutional right violation, a legal judgment

of monetary damages would not effectively remedy its injuries.

 In Knudson we explained that a preliminary injunction may

issue if the applicant can establish a prima facie case. Knudson,

894 P.2d at 298. The District contends that it has established a

prima facie case of a violation of its constitutional contract

clause rights, and that the court therefore erred in failing to

grant the preliminary injunction.

 However, the City argues that because statutes are presumed to

be constitutional, City of Billings v. Laedeke (1991), 247 Mont.

151, 154, 805 P.2d 1348, 1349, and because the District is raising

a constitutional challenge, to be successful here the District must

prove "beyond a reasonable doubt" that the statutes are

unconstitutional as applied, Fallon County v. State (1988), 231

Mont. 443, 445, 753 P.2d 338, 339. We cannot agree with the City

that the District must "prove beyond a reasonable doubt" that the

statutes are unconstitutional as applied; rather, the District must

make out a prima facie case of unconstitutionality.

 While the City's contention that a statute's presumption of

constitutionality must be overcome by proof beyond a reasonable

doubt is correct, that rule is nevertheless inapplicable here. In

Laedeke and Fallon County, cited by the City, the rule was applied

in the context of trials on the merits of constitutional challenges

to a municipal ordinance and a legislative tax apportionment,

respectively. See Laedeke, 805 P.2d at 1349-50; Fallon County, 753

P.2d at 339-40. Here, however, in the context of an application

for a preliminary injunction, requiring the District to prove the

statutes unconstitutional beyond a reasonable doubt would be

directly at odds with this Court's holdings that a successful

applicant for a preliminary injunction need only establish a prima

facie case, Knudson, 894 P.2d at 298, and that "[an] applicant [for

a preliminary injunction] need not make out such a case as would

entitle him to final judgment on the merits," Porter v. K & S

Partnership (1981), 192 Mont. 175, 183, 627 P.2d 836, 840 (citing

Atkinson v. Roosevelt County (1923), 66 Mont. 411, 422, 214 P. 74, 

78. Therefore, in support of its application for preliminary

injunction, the District must establish a prima facie case of a

violation of its rights under the contract clauses of the Montana

and United States Constitutions.

 The contract clauses of the Montana and United States

Constitutions have generally been interpreted as "'interchangeable

guarantees against legislation impairing the obligation of

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contract.'" Carmichael v. Workers' Compensation Court (1988), 234

Mont. 410, 414, 763 P.2d 1122, 1125 (quoting Buckman v. Montana

Deaconess Hosp. (1986), 224 Mont. 318, 325, 730 P.2d 380, 384; see

also Art. II, Sec. 31, Mont.Const.; Art I, Sec. 10, U.S.Const. 

This Court employs a three-part test when analyzing a contract

clause challenge:

 (1) Is the state law a substantial impairment to the

 contractual relationship?

 (2) Does the state have a significant and legitimate

 purpose for the law?

 (3) Does the law impose reasonable conditions which are

 reasonably related to achieving the legitimate and public

 purpose?

Carmichael, 763 P.2d at 1125.

 As to part (1), we point out that "[t]otal destruction of

contractual expectations is not necessary, and a law which

restricts a party to gains reasonably expected from a contract is

not a substantial impairment." Carmichael, 763 P.2d at 1125. The

District argues that the application of the statutes granting the

City control over utility rates substantially impairs the

contractual relationship between the District and the City. 

Specifically, the District argues that the statutes are

unconstitutional as applied because they allow the City to modify

the utility rates in the 1963 contract to which it is a party; this

unilateral power was not contemplated by the parties when they

entered into the contract. The District claims that the 1993 32%

increase, and the 1996 123% rate increase, clearly manifest the

substantial impairment caused by the application of the statutes in

this matter; the District's percentage increase is many times

higher than other City water users' percentage increase,

contradicting the relevant language in the contract. The District

explains that if the rate increases continue, it will no longer

enjoy the benefit of the bargain for which it contracted in 1963.

 The District's claims are supported by the record. Moreover,

the City does not expressly deny that its actions violated the

relevant language of the contract; rather, the City merely asserts

that its actions, whatever their effect on the contract, were

authorized by statute. For purposes of our review then, we presume

as true the District's allegation that the City's 1993 and 1996

rate increases violate the language of the contract. We conclude

that the District has made a sufficient showing that the

application here of the statutes granting the City control over

utility rates substantially impairs the District's rights under the

1963 contract.

 Next, according to part (2), we must consider whether the

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state has a legitimate and significant purpose for the law. Our

review of the legislative history reveals that the general purposes

behind replacing PSC control over municipal utility rates with

municipal control were to avoid the cost and delay of PSC review of

every proposed rate increase, and to allow municipalities to deal

more immediately and directly with financial realities such as

inflation. We conclude that these are legitimate state purposes.

 Finally, with respect to part (3), we must consider whether

the application of the statutes to the facts at issue here is

reasonably related to achieving the legitimate and public purposes

of the statutes. We point out at the outset that a heightened

level of scrutiny applies when a governmental entity is a party to

the contract. See Buckman, 730 P.2d at 385. As we stated in

Buckman, quoting United States Trust Co. of New York v. New Jersey

(1977), 431 U.S. 1, 25-26, 97 S.Ct. 1505, 1519, 52 L.Ed.2d 92,

111-12:

 The Contract Clause is not an absolute bar to subsequent

 modification of a State's own financial obligations. As

 with laws impairing the obligations of private contracts,

 an impairment may be constitutional if it is reasonable

 and necessary to serve an important public purpose. In

 applying this standard, however, complete deference to a

 legislative assessment of reasonableness and necessity is

 not appropriate [when] the State's self-interest is at

 stake.

Buckman, 730 P.2d at 385. In Buckman we also stated that "[t]he

severity of the impairment [to the contract] increases the level of

scrutiny to which the legislation is subjected." Buckman, 730 P.2d

at 385.

 We fail to see how the application of the statutes here,

ostensibly allowing the City to modify its own contractual

obligations, is reasonably related to the legitimate purposes of

the statutes. To justify its rate increases, the City claims that

the language in the 1963 contract limiting its ability to raise the

District's rates is unrealistic, and that it needs to raise

revenue. Also, the City states in its brief that "[i]f the rate

provisions of the 1963 Contract were superseded by the PSC prior to

the enactment of Sec. 69-7-101, MCA, then it stands to reason that

the enactment of Sec. 69-7-101, MCA vested the City Council with

that same authority for any utility rate increases." 

 We do not agree with the City's arguments. There is no

relationship between the purpose of 69-7-101, MCA, avoiding the

undue costs and delay of PSC rate hearings, and the City's need to

raise revenue (and its "need" therefore to disregard what it

considers unrealistic or outdated contract language). Moreover,

the City's argument that its assumption of rate control from the

PSC necessarily authorizes it to modify, "supersede," or otherwise

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disregard its contractual obligations is flawed. Because the PSC,

as overseer of rate increases prior to 1981, was able to

"supersede" some of the language in the 1963 contract between the

City and the District does not now mean that the City, in assuming

the PSC's power, can "supersede" language in that same contract or

any other contract to which it is a party, particularly when its

reasons for doing so are not related whatsoever to the purposes of

the statute which transferred to it control once held by the PSC.

 We hold that the District has made a prima facie showing that

the application in this case of the statutes granting

municipalities control over utility rates violates its rights under

the contract clauses of the Montana and United States

Constitutions. The District has sufficiently shown that the City's

rate increases, pursuant to the statutes and in violation of the

rate increase provisions of the 1963 contract, substantially impair

the contractual relationship between the District and the City. 

Further, the District has sufficiently shown that the City's

reasons for utilizing the authority of the statutes to override the

contractual language are not reasonably related to the legitimate

purposes of those statutes. Therefore, pursuant to the second

prerequisite for obtaining a preliminary injunction under 27-19-

201(3), MCA, we must now determine whether the City's actions would

"[tend] to render [a] judgment [in the District's favor]

ineffectual."

 The City argues that the District cannot meet this requirement

because, despite its water rate increases, a judgment in the

District's favor would be effective; assuming the District had been

or will begin paying the increased rates, upon a judgment in its

favor it could be recompensed the overpaid amount. More

realistically, the City argues, because the District has not been

paying the increased rates, and therefore essentially suffering no

injury, the District has no need for an injunction.

 The City's arguments are misplaced. The District requested

that the court enjoin the City from enforcing the increased rates 

pending the outcome of a trial on the merits. The District alleges

that the enforcement of the increased rates will severely harm,

perhaps dissolve, its business. The manager of the District, in a

sworn affidavit, claims that enforcement of the 123% increase will

either cause the District to become financially insolvent, or will

require the District to pass the increase on to its bondholders,

who would then be authorized, because its rates would be

substantially higher than those charged by the City, to petition

for dissolution of the District. See 7-13-2351, MCA. These are

not the types of injuries which could be effectively remedied by a

monetary damages award after a trial on the merits. See Doran v.

Salem Inn, Inc. (1975), 422 U.S. 922, 932, 95 S.Ct. 2561, 2568, 45

L.Ed.2d 648, 660 (threat of loss of business and threat of

bankruptcy due to city ordinance are potential injuries worthy of

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injunctive relief).

 Moreover, the District's application for preliminary

injunction is based on alleged violations of its constitutional

rights. We are mindful that courts often consider constitutional

rights violations as producing injuries which cannot effectively be

remedied by a legal judgment. See, e.g., Elrod v. Burns (1976),

427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (violation of First

Amendment rights produces irreparable injury); Mitchell v. Cuomo

(2d Cir. 1984), 748 F.2d 804 (violation of Eighth Amendment rights

produces irreparable injury).

 Lastly, for this Court, or any other court, to adopt the

City's argument that the District has no need for an injunction

because it is not paying the increased rates would, we believe,

effectively encourage non-compliance with obligations absent legal

authority to do so. The City has raised the District's rates,

allegedly pursuant to statutory authority. Until the merits of the

parties' respective claims regarding the propriety of raising the

rates have been tried, it must be presumed that the City's actions

were correct, see 26-1-602(15), MCA, and that it acted pursuant

to statutes that are constitutional, see Laedeke, 805 P.2d at

1349. That being the case, we must also presume then that the

District is obligated to pay the increased rates. It is the

injunctive relief issued by the court, not the District's

unilateral decision not to pay the increased rates, that has any

significance with respect to the suspension of the District's

performance of its obligations.

 Therefore, the City's actions here, raising the District's

water rates, allegedly pursuant to statutory authority, "[tend] to

render [a] judgment [in the District's favor] ineffectual." The

District has made a prima facie showing of a violation of its

constitutional rights under the contract clause. Thus, the

District has met the requirements of 27-19-201(3), MCA, and is 

entitled to a preliminary injunction. The District Court erred in

failing to grant the injunction.

 Finally, in its opening brief, the District requests that in

the event this Court vacates the order denying the District's

application for a preliminary injunction that we also instruct the

District Court to waive the security requirement, pursuant to 27-

19-306(1)(b)(ii), MCA. The record reveals that the District Court

has not yet considered this matter, a matter wholly within its

discretion. We will not deny the District Court the opportunity or

ability to exercise its discretion with respect to this issue.

 CONCLUSION

 For the reasons discussed above, the order of the District

Court denying the District's application for a preliminary

injunction is vacated, and this matter is reversed. We hold here

that the District, by establishing a prima facie case that its

rights under the contract clauses of the Montana and United States

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Constitutions have been violated and that a judgment in its favor

would be "ineffectual," has met the requirements of 27-19-201(3),

MCA, and is therefore entitled to the preliminary injunction for

which it has applied. In holding as we do, we comment neither on

the merits of the District's constitutional claims, nor on the

propriety or impropriety of waiving the security requirement

pursuant to 27-19-306(1)(b)(ii), MCA; the former is irrelevant to

a discussion of a preliminary injunction application, the latter

within the District Court's discretion, as yet unexercised.

 Reversed.

 

 /S/ WILLIAM E. HUNT, SR.

We Concur:

/S/ J. A. TURNAGE

/S/ TERRY N. TRIEWEILER

/S/ W. WILLIAM LEAPHART

Justice Karla M. Gray, dissenting.

 I respectfully dissent from the Court's opinion. While I do

not disagree that the Water District made a prima facie showing

that the statutes at issue, as applied by the City, violate its

rights under the contract clauses of the United States and Montana

Constitutions, I cannot agree that the Water District has

established that allowing the City to enforce the 1996 water rates

would tend to render a later judgment in its favor ineffectual. 

Nor do I agree with the manner in which the Court applies standards

of review in this case. 

 At the outset, it is important to observe that our standard in

reviewing a trial court's denial of an application for a

preliminary injunction is "manifest abuse of discretion." That the

grant or denial of a preliminary injunction is a matter within the

trial court's discretion is evident from the permissive language of

the controlling statute, which states that an injunction "may" be

granted when the enumerated circumstances are met. See 27-19-

201, MCA. The Court, having correctly cited the applicable

standard of review, never returns to it or discusses how the

District Court abused its discretion in denying the Water

District's application for a preliminary injunction.

 Nor does the Court's reliance on the "conclusion of law"

standard excuse its failure to properly apply the "abuse of

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discretion" standard of review. I agree with the Court's implicit,

but unstated, conclusion that the question of whether a party has

made a prima facie showing is a legal question. Thus, to the

extent we are reviewing a determination by the District Court that

the Water District did not make a prima facie case of violation of

its constitutional contract clause rights, it is proper to do so by

determining whether that court's interpretation of the law is

correct. The Court concludes, and I agree, that the District Court

erred as a matter of law when it determined that the Water District

had not made a prima facie case. 

 That conclusion, however, is unrelated to the District Court's

ruling that allowing the City to enforce its 1996 water rates would

not tend to render an ultimate judgment in the Water District's

favor ineffectual. See 27-19-201(3), MCA. This is a

discretionary call by the District Court, subject to the manifest

abuse of discretion standard the Court cites. The Court refuses to

apply the standard, however, preferring instead to merely

substitute its own judgment for that of the District Court on this

matter within the trial court's discretion. 

 It is my view that, on the record before us, the District

Court did not abuse its discretion in deciding that allowing the

City to enforce its 1996 water rates would not tend to render a

judgment in the Water District's favor ineffectual. The record is

very limited on this question and the Court's statements in this

regard are, at best, general. It is true that the affidavit of Mr.

Aarness, the Water District's manager, states that enforcement of

the 1996 water rates will cause the Water District to "eventually"

become financially insolvent--at some unspecified time in the

future--if it does not pass the increases along to its customers. 

It is undisputed, however, that the Water District has $3,000,000

in unallocated reserves with which, presumably, it could pay the

1996 water rate increases over a significant period of time, either

in whole or in part, to cushion the impact of the increased rates

on its customers. The Water District has made no showing

whatsoever that its available reserves would not be sufficient to

absorb the entirety, much less only part, of the 1996 rate increase

over the time period required for a decision on the merits in this

litigation.

 As an alternative to this insufficiently supported insolvency

argument, Mr. Aarness' affidavit states that, if the Water District

passes the water rate increases on to its customers, they "likely"

will petition to dissolve the Water District because their rates

will be substantially higher than those charged by the City. This

statement is problematic in several regards.

 First, affidavits based on personal knowledge, as Mr. Aarness'

purports to be, are required to be based on admissible facts. They

cannot properly be used to speculate or to predict the future

actions of other people. No basis, much less any factual basis, is

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provided for Mr. Aarness' statement. Thus, Mr. Aarness' view of

the "likely" response of the Water District's customers in the

event it passes the City's water rate increase along is not

properly considered here. 

 Moreover, as a practical matter, the fact that the Water

District's customers' water rates would be substantially higher

than those paid by City residents would not necessarily result in

a petition to dissolve the Water District. It is not as simple a

matter as switching from water service by the Water District to

water service by the City. The customers of the Water District are

not individually or directly attached to the City water system; nor

are they necessarily entitled to City water service at all absent

the existence of the Water District. Thus, the "likelihood" of a

petition to dissolve is minimal, absent some showing by the Water

District that its customers had options or alternatives regarding

water service. No such showing has been made here.

 Finally, a petition to dissolve pursuant to 7-13-2351, MCA,

even if one actually were signed by more than 50% of the

freeholders of the district, does not dissolve the Water District. 

Such a petition is the beginning of a process, not the end of one. 

The Water District could be dissolved only if, after a public

hearing, the board of directors determined that dissolution is in

the best interest of the public and the Yellowstone County

Commissioners approved the dissolution. Section 7-13-2351, MCA. 

Here, nothing of record supports reliance on the specter of

dissolution of the Water District as a basis for this Court's

determination that the Water District established that a judgment

in its favor would tend to be rendered ineffectual by allowing the

City to enforce its 1996 water rates during the pendency of this

litigation.

 Faced with this record, and with an opening brief by the Water

District that does not even mention the requirements of 27-19-

201(3), MCA, the statute under which it sought the preliminary

injunction, the Court is compelled to rely on being "mindful that

courts often consider constitutional rights violations as producing

injuries which cannot effectively be remedied by a legal judgment." 

Indeed, the Court cites to decisions where courts have done so in

situations where irreparable injury is produced by a violation of

certain constitutional rights. Those cases involve First and

Eighth Amendment rights, however, and I submit that a violation of

such rights is entirely and qualitatively different from a

potential violation of the contract clause, in which money is at

stake, such as the case presently before us. Neither the Water

District nor the Court explains or establishes how the potential

violation of constitutional contract clause rights will produce

injuries to the Water District which cannot be remedied by a legal

judgment. 

 In addition, the "irreparable injury" cases are not applicable

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here. Section 27-19-201, MCA, sets out a variety of circumstances

under which a preliminary injunction may be granted. It is

undisputed that the Water District brought its injunction

application under 27-19-201(3), MCA, which is the focal point of

both the Court's opinion and this dissent. The "irreparable

injury" basis for seeking a preliminary injunction is contained in

 27-19-201(2), MCA, which is not at issue here. Indeed, counsel

for the Water District stated unequivocally during oral argument on

its application that it was not even attempting to show irreparable

injury. 

 I cannot agree with the Court's "stretch" to principles that

have no application here or with its failure to properly apply our

standard of review. I would hold that the District Court did not

manifestly abuse its discretion in denying the Water District's

application for a preliminary injunction.

 /S/ KARLA M. GRAY

 

Justice James C. Nelson joins in the foregoing dissenting opinion.

 /S/ JAMES C. NELSON

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