My vote on this application is based upon what I consider to be a waiver by the applicants of their constitutional right of appeal to the Court of Errors and Appeals. This waiver I think resulted from their voluntarily and without protest submitting their case to the decision of the Supreme Court, sitting inbanc, thereby consenting to a destruction of a constitutional quorum of the Court of Errors and Appeals to hear the case upon appeal from the decision of the Supreme Court, so sitting. I think the constitution vests in all litigants the right, unless that right be waived, of appealing to the Court of Errors and Appeals in *Page 79 all causes, and that this right cannot be defeated by anything not contained in the constitution itself. I also think the quorum of the Court of Errors and Appeals is definitely fixed by the constitution to be a majority of the entire membership of that court and not merely a majority of those members who are not disqualified to sit in any particular case. If this is so I do not think the members of the Supreme Court have the right under these provisions of the constitution to disqualify themselves to sit as members of the Court of Errors and Appeals to such an extent as will destroy the constitutional quorum of the latter court except upon a waiver by the litigant of his right of appeal by his consent to such destruction.
When the constitution of 1844 was adopted there were only five Supreme Court justices and the total membership of the Court of Errors and Appeals was consequently twelve, and a quorum of that court was seven. The sitting of the Supreme Court in banc, thereby withdrawing five members from the Court of Errors and Appeals, would then still leave a quorum of that court to function. It is quite likely that the constitutional provisions in this respect were adopted with this purpose in mind. Then in 1845, quite possibly with the same purpose of insuring a Court of Errors and Appeals quorum under any circumstances, the legislature provided for the Supreme Court dividing itself into "branch courts." Dubelleiss v. West Hoboken, 81 N.J.L. 98.
I think, therefore, there has always been provided a way whereby litigants may preserve for themselves their right of appeal, if they desire it, to a constitutional quorum of the Court of Errors and Appeals, by asserting before the Supreme Court the right to be heard by one of the branches of that court instead of by that court sitting in banc, in order that such constitutional quorum of the Court of Errors and Appeals should not be destroyed. That it would be the duty of the Supreme Court to grant such an application for a hearing by a branch of that court instead of by the court sitting in banc in order that the applicant's constitutional right of appeal *Page 80 should not be destroyed, seems to me quite obvious, because the Supreme Court is governed by the purpose of the provisions of the constitution to the same extent as are all other judicial bodies provided for thereby. True, the power and practice of the Supreme Court to sit in banc existed prior to and at the time of the adoption of the constitution of 1844, and consequently continued after such adoption except as modified or curtailed by the provisions, or by the implications necessarily resulting from the provisions of that instrument. The creation by that constitution of the "Court of Errors and Appeals in all causes," with a membership embracing the Supreme Court justices and a limitation whereby it could only function by a quorum consisting of a major part of its entire membership, it seems to me, in a case where it is propesed that the entire membership of the Supreme Court should sit in banc to hear in the latter court a cause which the court is advised is intended to be appealed to the Court of Errors and Appeals, gives rise to a situation where the right of the Supreme Court to hear the case in banc must be held to be non-existent because of constitutional curtailment of its power to so sit in such a case, or else it must be held that the express provisions of the constitution giving all litigants the right of appeal to the Court of Errors and Appeals in all causes and to a hearing by a major part of the entire membership of that court are, under such circumstances, null and void. I cannot think that express constitutional provisions can be thus wiped out of existence.
I dissent, therefore, from the idea that while the appellant must be taken to have waived his right to appeal by failing to object to a hearing by the Supreme Court sitting in banc, "such objection, if made, would have been without legal force." I think such objection would have had legal force and that that is the very reason why the failure to make such objection operated as a waiver. Surely a waiver of a constitutional right cannot result from a failure to make a legally futile objection. *Page 81