On Second Motion for Rehearing. A second motion for rehearing has been presented in this case. It poses no question or proposition which has not been already submitted and disposed of in the decision or in the denial of the first motion for rehearing.
Decision in the case was filed in this court on December 5, 1946, with three members of the court concurring in and two members dissenting from the majority opinion. A motion for rehearing was duly filed. It was denied December 31, 1946, with the same three judges agreeing on and the same two judges dissenting from such denial.
At the time of the decision and the denial of the motion for rehearing, Mr. Justice HUDSPETH was a member of the court and one of the majority who joined in the opinion and in the denial of such motion. On January 1, 1947, he retired from the court and Mr. Justice McGHEE succeeded him. Thereafter the second motion for rehearing was filed. Question has been raised before the court as to the propriety of participation by Justice McGHEE in the determining of the fate of such second application for rehearing.
It will be seen that if each of the four judges who participated in the decision and the action on the first motion for rehearing, and who are yet members of the court as constituted for this case, holds to his former opinion (as each still does), and if the new member participates in the decision as to whether the second motion for rehearing shall be granted or denied, then the actual decision on the motion will be made by one who did not take part in the consideration and decision of the case upon the merits. Should a granting of rehearing result, and if thereafter the new member should join with the dissenting judges in their views, it would follow that the original decision would be withdrawn and another perhaps of opposite effect would be handed down. Such results would flow directly and merely from a change in the make up of the court and the newly acquired voting power of the erstwhile minority, and not from any change of views of the court to whom decision of the case was originally entrusted and by whom it was originally made.
The question is one of first impression in New Mexico so far as a decision is concerned. But until 1936, that is through the territorial years and about two-thirds of the period of our statehood, such question was made practically impossible because of the then existing positive rule of this court that a rehearing "will not be granted or permitted to be argued orally, unless a justice who concurred in the judgment, desires it and a majority of the court so determines." It would seem that a rule so long adhered to might be considered part of *Page 34 the settled policy of the court in absence of something positive by rule or decision indicating an intention to change it. The above quoted portion of the rule was left out of the rules adopted and made effective January 1, 1936, and the rule makers revised and expanded the paragraph in which it had occurred (Sec. 1, Rule 18, Rules of Appellate Procedure, 1928) with attention evidently centered on defining the content, form and scope of the motion itself (See Sec. 1, Rule 18, Supreme Court Rules, 1936), which subject was quite tersely handled in the paragraph before its revision. The omission of said quoted statement from the rule in 1936 may be accounted for without assuming that it was thereby intended to work a radical change in a policy so long adhered to, and which was and is the rule and policy of the Supreme Court of the United States and apparently of the highest courts of most of our sister states. The fact that those present members of this court who were members of it then recall no discussion or mention of the matter or suggestion of change of policy made at that time, leaves it fair to assume that the omission of the words above quoted was not purposely designed to effect such change.
A distinction must be noted between the instance where a new judge takes part in the ordinary business, and participates in decisions in cases pending but not decided before his coming on to the court, and the instance where he would assume the role of "swing man" to determine as to rehearing in a case already decided by the court, as formerly constituted, before he became a member of it. The two instances are not parallel.
We think the weight of authority, and the better reasoning, supports the conclusion that a judge who takes his place upon a court by succeeding a former judge thereof after said court, as so previously constituted, has rendered judgment and has denied rehearing in a case, cannot with propriety participate in the consideration and determination of a further motion for rehearing in such decided case.
A number of authorities to this effect are collected and cited in the cases of Cordner v. Cordner, 91 Utah 474, 64 P.2d 828, and Gas Products Co. v. Rankin, 63 Mont. 372, 207 P. 993, 24 A.L.R. 294, wherein the Supreme Courts of Utah and Montana each arrive at the same conclusions on the proposition. If it may be said that the case of Metropolitan Water District, etc., v. Adams,19 Cal. 2d 463, 122 P.2d 257 (a case decided upon complicated facts and impressed by practice rules of California), announces another conclusion, we are not in accord with it. (Emphasis ours)
The Cordner case, supra, on its facts is on all fours with the case before this court, except that there the first petition for rehearing was involved, and quotation from *Page 35 it, including quotations therein given, is appropriate:
"After full consideration of the matter, the court as now constituted is unanimously of the opinion that the new member of the court should not participate in the consideration of the petition for a rehearing. For the new member of the court to participate would require that he consider the case on its merits and if, after considering the case, he should be compelled to disagree with the conclusion reached by a majority of the court as constituted at the time the decision was rendered, the ultimate effect would be to reverse the decision made. This question has not heretofore been squarely presented to this court. The effect of the participation of a new member of the court, where the court is evenly divided on the question after the retirement of the former member, would establish a precedent fraught with dangerous implications. * * * if we once make a precedent of this kind, it will in time lead to great abuse; and that parties who have had judgments given against them as this case was, by a divided vote, or by small majorities, will upon a change of a part of the members of the court be induced to try experiments here, for the purpose of producing a different decision of their causes by the votes of new members." People v. Mayor, etc., of City of New York, 25 Wend. (N.Y.) 252, 35 Am.Dec. 669.
"It would be mischievous in a high degree to permit the re-opening of controversies every time a new judge takes his place in the court, thereby encouraging speculation as to the probable effect of such changes upon principles previously declared and enforced in decided cases." McCutcheon, Admr. v. Homer, 43 Mich. 483, 5 N.W. 668, 38 Am.Rep. 212.
"If a re-argument were now allowed, and the former decision reversed, this result would follow, not from a conviction upon the part of the members of the court by which the case was originally heard and determined that the decision was erroneous, nor from the consideration of reasons and arguments not before advanced and considered, but solely from the change in the composition of the court. Under such circumstances, a relaxation of the ordinary rules governing applications for re-argument, would seem to be peculiarly ill-timed. It would, in our opinion, be a violation of proprieties in the administration of justice, which it is the duty of a court to maintain, and would tend to destroy that respect for, and confidence in judicial tribunals, the loss of which every good citizen would deplore." Woodbury v. Dorman, 15 Minn. 341, Gil. 274.
With the principles thus announced we agree.
This question is one of first impression in this court and we are free *Page 36 to adopt either of the views stated for such situations. The case has been decided by a majority of this court. No one of those who are now members and who participated in the decision has changed his views thereon. We are of the opinion that we should follow the rule of the courts of Utah, Montana, Michigan, New York and Minnesota for guidance of this court in such cases. The reasoning in Cordner v. Cordner, supra, satisfies us that the rule therein followed is correct. Justice McGHEE who heard the argument on the motion being not eligible to take part in a decision thereon for the reasons above stated; and as the four remaining members of this court are equally divided on the question of whether a rehearing should be granted, it follows that failing a majority in favor thereof the motion for rehearing must be overruled. Motion overruled, and it is so ordered.
BRICE and LUJAN, JJ., and A.W. MARSHALL, District Judge, concur.