A question has arisen whether this court can be held by less than eight judges. The people have, I think, settled that question too plainly to leave any room for mistake. The words of the constitution are — "There shall be a court of appealscomposed of eight judges, of whom four shall be elected by the electors of the state for eight years, and four selected from the class of justices of the supreme court having the shortest time to serve." (Art. 6, § 2.) The court — the only court of appeals for which the constitution provides — is by the express terms of the instrument to be "composed of eight judges;" and this number is in effect repeated, by specifying two classes of four judges each of which the eight shall be composed. There is no such provision, as is usual in such cases, that a smaller number shall constitute a quorum; and the language is too plain and explicit to leave any thing for construction. If any one affirms that the court may be composed of one, two, six or seven judges, the constitution answers, that it shall be composed of eight.
It is not necessary, however, to lay any stress on the mere *Page 565 form of words; for wherever a power or authority is delegated to several persons, without any provision that it may be exercised by a smaller number, they must all join. It is not necessary to add any thing to make the power joint: it is so in its very nature. But it is not several as well as joint, unless made so by express words. The rule that all must join is, however, subject to this qualification: when the thing to be done is matter of public concern, as the holding of a court, if all meet and consult, a majority may decide. But where the thing to be done is for a private purpose, as the making of an award, all must not only meet, but all must concur in the decision. (Green v.Miller, 6 John. 39; Ex parte Rogers, 7 Cowcn, 526, andnote, p. 530; McCoy v. Curtice, 9 Wend. 17; Downing v.Rugar, 21 id. 178; Crocker v. Crane, id. 211; Woolsey v. Tompkins, 23 id. 324; 7 Cowen, 410, note; 2 R.S. 554, § 26.) It is never sufficient for a majority to meet, although the thing to be done be of a public nature, unless it be so provided in the delegation of authority.
The inconvenience which might follow, and the possible failure of the end to be accomplished if all should be required to attend, has generally led to a provision that the authority, if of a public nature, might be exercised by a majority of the body, or some other number less than the whole. I have examined nearly all of our constitutions, state and national, and in every one which has been examined there is a provision that the majority of the several legislative bodies, or some other number less than the whole, shall be a quorum for doing business. And with the exception now under consideration, whenever provision is made for a court to be composed of a specified number of judges, it is also provided that a majority, or some other number less than the whole, may hold the court. Under the ordinances of 1699 and 1704 establishing our supreme court, any one of the judges might hold the court. And no change was made by the constitution of 1777. It was not until 1821 that the constitution specified the number of judges of which the supreme court should consist, and it was then declared that any one of the three might hold the court. And when the constitution *Page 566 of 1846 provided for a supreme court of thirty-two judges, it was added, that three judges might hold the court for certain purposes, and one judge for certain other purposes. There is also a provision in the present constitution that a less number than the whole may hold the court for the trial of impeachments; and there was a similar provision in relation to that court, and the court for the correction of errors, in the constitutions of 1787 and 1821. These provisions show very plainly the sense of those who have gone before us. Every convention which has ever assembled in this country to form a constitution, including our own convention of 1846, has, I believe, plainly affirmed the principle, that where a power or authority was conferred on a legislative or judicial body composed of a specified number of members, it was necessary to provide that the power might be exercised by a less number, if such was the intention: and if there is any authority for saying that a majority, or any number less than the whole, may act without an express declaration to that effect, it has not fallen under my observation.
The federal constitution provides that the judicial power of the United States shall be vested in one supreme court; but does not specify the number of judges of which the court shall be composed. Of course that matter was left to the decision of congress; and when congress determined by the judiciary act of 1789, that the supreme court should consist of six judges, it was added, that any four of them should be a quorum. (1 Story's LawsU.S. 53.) Here we have another recognition of the principle that it is necessary to provide for a quorum in the delegation of judicial power — a principle which has been many times asserted by the wise men of the nation; and which has, I think, never been denied down to the present day.
It has been suggested, and for aught I know such may be the fact, that the convention which framed the present state constitution forgot to make the usual provision in such cases for a quorum of the court of appeals. But what then? If it could be proved that the omission was an oversight on the part of the convention, it would not help the matter. The fact would still remain that the people adopted the instrument as it is; and *Page 567 whatever may be its defects, it is still the fundamental law which no power but the people themselves has the right to amend or alter.
If the framers of the constitution forgot to provide for a quorum of the court of appeals, it is quite clear that neither the legislature nor the court has power to supply the defect: and if the framers of the instrument considered the question and did not provide for a quorum, it is equally clear that they intended all should sit.
The legislature has said that six judges of the court of appeals shall be necessary to constitute a quorum; (Stat. 1847,p. 321, § 6;) but it has been very careful not to say how many more are necessary, or that six shall constitute a quorum. And so long as six are not eight, it is not probable that the legislature ever will say that six judges may compose a court which the constitution declares shall be composed of eight. But should such a law be passed, it will be a palpable violation of the constitution, and the judges will be bound by their oaths of office to declare it void.
We are referred to the 25th section of the article relating to the judiciary, which declares, that "the legislature, at its first session after the adoption of this constitution, shall provide for the organization of the court of appeals," and for bringing causes into it from other courts. This is not a power to form or organize a court of appeals, but a power to organize "the court of appeals," meaning beyond all room for doubt or question, the "court of appeals composed of eight judges," which had been instituted by the second section, and which is the only court of appeals mentioned in the constitution. The action of the legislature was necessary to set the court in motion. Its terms, place of sitting, and mode of exercising jurisdiction, were to be provided for by law. And it was further necessary to determine which four of the eight justices of the supreme court having the shortest time to serve, should compose part of the court of appeals in each particular year. The power to organize has matter enough to feed upon, without making it nullify the second section, with which it does not conflict in the slightest degree. *Page 568 A power to organize a court, which those who delegated the power have declared shall be composed of eight judges, does not, upon any just rule of interpretation, include an authority to restrict or limit the number of judges. It is a power to do the necessary things to set the court of eight judges in motion; and nothing more.
If the power to organize includes an authority to reduce the number of judges, then, as the power is without any restriction, the legislature can provide that one judge may hold the court. There is no escape from this conclusion. The people of this state would, I think, be astonished to learn, that they have authorized the legislature to organize a court of last resort composed of one judge.
It is highly probable that inconveniences will result from following the constitution as it is written. But that consideration can have no weight with me. It is not for us, but for those who made the instrument to supply its defects. If the legislature or the courts may take that office upon themselves; or if under color of construction, or upon any other specious ground, they may depart from that which is plainly declared, the people may well despair of ever being able to set a boundary to the powers of the government. Written constitutions will be worse than useless.
Believing, as I do, that the success of free institutions depends on a rigid adherence to the fundamental law, I have never yielded to considerations of expediency in expounding it. There is always some plausible reason for the latitudinarian constructions which are resorted to for the purpose of acquiring power — some evil to be avoided, or some good to be attained by pushing the powers of the government beyond their legitimate boundary. It is by yielding to such influences that constitutions are gradually undermined, and finally overthrown. My rule has ever been to follow the fundamental law as it is written, regardless of consequences. If the law does not work well, the people can amend it; and inconveniences can be borne long enough to await that process. But if the legislature or the courts undertake to cure defects by forced and unnatural constructions, *Page 569 they inflict a wound upon the constitution which nothing can heal. One step taken by the legislature or the judiciary in enlarging the powers of the government opens the door for another, which will be sure to follow; and so the process goes on, until all respect for the fundamental law is lost, and the powers of the government are just what those in authority please to call them.
I am of opinion that the court of appeals must be, as it now is in fact, composed of eight judges — that no smaller number can hold the court; and consequently that it requires the concurrence of more than four judges to grant this or any other motion; and in this opinion my brother JEWETT concurs.
But the other judges, including Judge TAYLOR, were of opinion that the court might be held by less than eight judges; and consequently that a majority of the seven who heard this motion might grant it.
The six judges declined passing upon the question whether the legislature could authorize one judge, or any other number less than a majority, to hold the court.
They also declined passing upon the question whether the meaning, or just force of the constitution is, that the court may be held by a majority of the eight judges. The CHIEF JUDGE said it was necessary to decide that question; for if the meaning of the constitution is, that a majority of the judges may hold the court, the legislature can not say that a greater number shall be necessary to constitute a quorum; nor can they say that a majority of a legal quorum shall not decide. Then, after setting aside the disqualified judge, there were still six judges — a legal quorum — who heard the argument in the principal case, and four — a majority of the quorum — concurred in the judgment of reversal. In this view of the case the judgment stands wholly unimpeached, and the motion should be denied.
But the six judges said it was not necessary to decide that question; and it was thereupon
Ordered, That the judgment of reversal rendered in this cause in December last be vacated, and that the cause be re-argued.
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