The appellants have asked for a rehearing of this appeal, and in their petition therefor have also requested that upon such rehearing all of the Judges of the Circuit Court be called to the assistance of the Supreme Court to take part in the decision of this cause, pursuant to the provisions of Section 12 of Article 5 of the Constitution.
The appellants have also filed "Reasons and Argument in Support of Petition for Rehearing." In this "argument," the appellants take the position that, if it appears to the Justices of this Court, or any one of them, that there is involved in the appeal a question of constitutional law, "upon the determination of which the entire Court is not agreed," it is mandatory that the Chief Justice "shall call to the assistance of the Supreme Court all of the Judges of the Circuit Court." The request of the appellants, and the question they make, are of considerable importance, and the Court deems it proper to pass directly thereon at this time.
The Court en banc — composed of the Justices of this Court and all the Circuit Judges — was created by the Constitution of 1895. We quote from Section 12 of Article 5 thereof, as originally adopted, such portions as are deemed necessary now:
"* * * Whenever, upon the hearing of any cause or question before the Supreme Court, * * * it shall appear to the Justices thereof, or any two of them, that there is involved a question of constitutional law, * * * upon the determination of which the entire Court is not agreed, * * * the Chief Justice, or in his absence the presiding *Page 307 Associate Justice, shall call to the assistance of the Supreme Court all of the Judges of the Circuit Court. * * *"
By Joint Resolution of the General Assembly, at its session of 1910, the question of amending Section 12 of Article 5 was submitted to the qualified electors at the ensuing general election. By an act of that body, at its session of 1911, it was recited that the proposed amendments had been adopted by the people and the General Assembly ratified the same. In the official printed Code of 1922, the provision before quoted from the Constitution of 1895 appeared in this changed form:
"* * * Whenever, upon the hearing of any cause or question before the Supreme Court, * * * it shall appear to the Justices thereof, or any three of them, that there is involved a question of constitutional law, * * * upon the determination of which the entire Court is not agreed, * * * the Chief Justice, or in his absence the presiding Associate Justice, shall call to the assistance of the Supreme Court all of the Judges of the Circuit Court. * * *"
The appellants assert that Section 12 of Article 5 was incorrectly printed in the Code of 1922; that the word "three," as used in the provision last quoted, was improperly inserted therein; that the language"any three of them" should not so read, but should read"any of them" and that accordingly, in and by the terms of Section 12 of Article 5, when "it shall appear to the Justices" of this Court, or any of them," that a question of constitutional law is involved in a cause pending in this Court, it is required that the Court en banc shall be called.
The claim set forth rests upon the contention that the amendment of Section 12 of Article 5, voted favorably by the people in the general election of 1910, as submitted to them by the Joint Resolution of that year, was only to strike out the word "two" in the provision quoted from the original section of the Constitution, and that the purpose *Page 308 of the amendment as proposed by the General Assembly, voted by the people, and ratified thereafter by the General Assembly, was to require the calling of the Courten banc in a cause where a question of constitutional law was involved, at the instance of only one Justice of this Court, and not at the instance of at least three of the Justices, as it appears to be necessary from the wording of the section in the printed Code of 1922.
Pointing to both the Joint Resolution of 1910 (No. 594, Acts 1910, p. 1063), and the ratifying Act of 1911 (No. 58, Acts 1911, p. 117), the appellants particularly call our attention to this discrepancy; that in the respective parts of both of these legislative enactments, where it is declared what amendments were proposed and ratified, it was declared that the word "two," as found in the original section, was to be stricken out and the word "three" was to be inserted in lieu thereof; but that the language used in the other parts of the enactment, when it was stated how Section 12 of Article 5 should read "when amended," did not contain the word "three," but only the words "any of them" appeared. And it is urged that a proper construction of both the Joint Resolution and the ratifying Act requires that it be held that the Constitution was so amended as to require a calling of the Court en banc at the request of oneJustice, when this Court is not entirely agreed upon a constitutional question which may be involved in a cause. It is to the proper construction of the said Joint Resolution and the ratifying Act that we now direct our attention.
We agree with the following legal proposition advanced by the appellants:
"Provisions of a Constitution regulating its own amendment, otherwise than by a convention, are not merely directory, but are mandatory, and a strict observance of every substantial requirement is essential to the validity of the proposed amendment." 12 C.J., 688. *Page 309
These "substantial requirements" for the amendment of our Constitution are set forth in Sections 1 and 2 of Article 16 of the Constitution. There is no showing before this Court that there was failure in any respect to comply with either of the requirements made in the sections and article last mentioned as to the amendments of Section 12 of Article 5 now under consideration. In the absence of any such showing, this Court will presume, of course, that the General Assembly, and all other officials charged with duties in connection with the submission, adoption, and ratification of the amendment, discharged such duties in the manner required by the Constitution.
The inquiry, therefore, turns to an examination of the Joint Resolution of 1910 and the ratifying Act of 1911. These enactments are so much alike, except wherein changes in language were necessary, that hereafter it will only be required to refer to the Joint Resolution. The real question is this: Which language in the Resolution must control — that contained in the part of the Resolution where it was declared what amendment was to be made, or that set out in the clause which stated how the section sought to be amended should read "when amended"?
The appellants contend for the view that the language contained in the "when amended" clause must control, and they cite in support of their position the case of Bush v.Western Union Telegraph Co., 93 S.C. 176; 76 S.E., 197, seemingly in harmony with the position taken in certain language of Mr. Justice Hydrick, who delivered the opinion of the Court in that case, which we quote:
"* * * But we think the question to be decided is: Which part of the Act shall control and be looked to to ascertain the legislative will, the part which declares what amendments were to be made, or the part which sets out the section, as it read, `when amended'? There can be no doubt of the power of the Legislature to amend an Act or section by declaring, in the amending Act, what words shall *Page 310 be inserted or omitted, or, it may declare, in the amending Act, that the Act to be amended shall be amended so as to read as follows, and then set out the Act as amended, or it may, as it undertook to do in this case, combine the two methods, and declare in the first part of the amending Act what amendments are intended, and also set out the Act, as it will read `when amended.' But, when there is a conflict in the provisions of the amending part of the Act and the Act `as amended,' to which must we look to find the legislative intent? This question naturally suggests another: To which part of the Act would a legislator most naturally look, in considering it on its passage, to determine its intent and effect, and whether he would favor or oppose its passage? It requires only a moment's reflection to answer: The Act as it would read `when amended.' It follows, therefore, that we can ordinarily look to that part of an amending Act with greatest certainty of finding the legislative will, and, therefore, that part of the Act should ordinarily control."
The appellants, in line with the quoted expressions from the Bush case, argue that, in the instance of the Resolution under consideration, the words "any of them," appearing in the "when amended" portion of the Resolution, are controlling over the words "any three of them" set out in the declaratory part of the enactment, since both legislators and qualified electors were more likely to have read the "when amended" clause, and voted for the proposed amendment with the idea in mind that the section would be so amended as to permit one Justice to require the calling of the Courten banc. The principles referred to by Mr. Justice Hydrick must be given due regard in construing the intention and effect of the Joint Resolution, but they are not absolutely conclusive, for as that distinguished jurist himself said if the same opinion and in the same connection:
"We do not mean, however, to say that this is always soor to lay it down as a hard and fast rule, applicable to al *Page 311 cases; for it is conceivable that a case might arise in whichthe evil to be remedied, or the defect in the statute to beamended, the amendment proposed, and the Act as amended,when considered altogether in the light of all the circumstancesand the rules of statutory construction, might leadto the conclusion that the legislative will is to be found inthe amending part of the Act. If so, of course, that mustcontrol, for it is the intention only which we seek." (Italics ours.)
Supporting these last-stated declarations of Mr. Justice Hydrick, to the effect that this Court should seek first of all, in construing a legislative enactment, the legislative intent and will (and, we may interpolate, the intent and will of the people as expressed at the ballot boxes), we call attention to what was said by Mr. Justice Watts, now Chief Justice, speaking for this Court, in Heintish v. Floyd, 130 S.C. 434;126 S.E., 336:
"While the Legislature, in proposing a constitutional amendment, is, in many respects, not subject to the rules controlling ordinary legislative action, still the fundamentalpurpose in construing an amendment is to ascertain and giveeffect to the intent of its framers and of the people whoadopted it; and the Court must keep in mind the objectsought to be accomplished, and the evils sought to be remedied. 12 C.J., 700." (Italics ours.)
And very much analogous to the expressions of both Justices Hydrick and Watts, is the language of Mr. Justice Marion in Kirkland v. Allendale County, 128 S.C. 541;123 S.E., 648:
"Another familiar general principle of interpretation of Constitutions is that a provision should be construed in thelight of the history of the times in which it was framed, and with due regard to the evil it was intended to remedy so as to give it effective operation and suppress the mischief at which it was aimed." (Italics ours.) *Page 312
In endeavoring to ascertain the intention of the legislators who submitted the amendment to Section 12 of Article 5 to the people, and the will of the people who voted favorably to that amendment, and the intention of the General Assembly when the amendment was ratified, we accordingly look back to the situation and conditions from the time of the adoption of the Constitution in 1895 to the ratification of the amendment in 1911.
The present Constitution originally established a Supreme Court consisting of only four Justices, a Chief Justice and three Associate Justices (Section 2 of Article 5). It was provided that "the concurrence of three of the Justices shall be necessary for a reversal of the judgment below, but if the four Justices equally divide in opinion the judgment below shall be affirmed." Section 12 of Article 5. As shown before, when it appeared to the Justices, or any two of them, that the Court was not entirely agreed on a constitutional question involved in a cause then pending, the Courten banc should be called at the instance of those two Justices. The population of the State growing, and much progress in development of numerous new industries and enterprises occurring, the result was a great increase of litigation in the Courts of the State; so much so that the General Assembly had to increase the number of judicial circuits from 8 to 12 and likewise increased the number of Judges and Solicitors in the same proportion. More business for the Circuit Courts, of course, meant, naturally, there would be more business for the Supreme Court.
Again, it must have been apparent that it was rather unfortunate for the Supreme Court to be composed of an even number of Justices, and the necessary provision, under the circumstances, that when the Justices were evenly divided the judgment of the lower Court should be affirmed. The result of this last-mentioned provision was that, if two Circuit Judges disagreed upon the same legal question, which happened to be presented to them, at different times *Page 313 and in different causes, the judgment of the one whose decision was appealed from first reviewed by the Supreme Court, and affirmed by a divided Court, became not only the law of the particular case in which the decision was rendered, but such decision thereafter was binding authority in all similar subsequent cases. City of Florence v. Berry, 62 S.C. 469;40 S.E., 871. So, if two of the Justices of the Supreme Court and eleven of the twelve Circuit Judges were of one opinion on a legal question, and two of the Justices and one of the Circuit Judges thought otherwise, it was not only possible, but oftentimes probable, that the judgment of the three Judges should, and would, overcome the opinion of the thirteen who concluded to the contrary, unless the two Justices of this Court exercised their right to call together the Court en banc.
Whatever the reasons — because the business of the Supreme Court required it, or because it was better to have a Court composed of an uneven number of Justices, or to do away with the holding of so many Courts en banc, or for other reasons — the General Assembly and the people amended Section 2 of Article 5 of the Constitution by adding another Associate Justice to this Court. This amendment was proposed in 1910 and ratified in 1911. There is no question here as to the validity of that amendment.
In 1895, when the Constitution was adopted, the wise and foreseeing framers of that most important instrument must have realized that there would likely arise immediately upon the going into effect of the Constitution a multitude of questions as to the meaning and effect of many provisions, clauses, and words contained therein. Realizing, too, that these questions should not be determined by only a divided Supreme Court, the provision for the Court en banc, at the instance of only two of the Justices, to pass upon constitutional questions, was, doubtless, thereupon inserted in Section 12 of Article 5. Fifteen years after, however, in 1910, when numerous questions as to the meaning of the Constitution *Page 314 had been passed upon by the Court of last resort, it was, more than likely, the belief of both legislators and people that there would be fewer questions of constitutional law to be determined thereafter. Looking forward to a decreased number of constitutional questions, and with little chance of a divided Supreme Court, it was altogether natural for the General Assembly and the qualified electors to believe that there would be less necessity in the future than there had been in the past for the meeting of the Court en banc. It must be presumed, also, that the members of the General Assembly, and perhaps a great number of our citizens, knowing of the insistent and repeated demands for more judicial circuits and a larger number of Circuit Judges and Solicitors, had repeatedly their attention called to the statement of the then wise Chief Justice, Hon. Henry McIver, who, speaking for the entire Court, although the Justices were then evenly divided on a question before them, in 1896, had said:
"In view of the expense, delay, and interference with the ordinary duties of the Circuit Judges, which will in many, if not most, cases result from calling the Circuit Judges to the assistance of this Court, we are not disposed to exercise the power vested in this Court, except where some grave question of public concern is involved." City of Florencev. Brown, 49 S.C. 332; 26 S.E., 880; 27 S.E., 273.
The amendment to Section 2 of Article 5, increasing the number of Associate Justices from three to four, and the one making the change in Section 12 of the same article, as to the number of Justices who might call for a session of the Court en banc on a constitutional question, were both proposed at the same session of the General Assembly, voted upon by the electors in the same general election, and were ratified at the same legislative session; evidently they were companion propositions. Expecting the amendment for the additional Associate Justice to become a part of the Constitution, the plan, obviously, was also to increase at the *Page 315 same time the number of Justices who might require the calling in of the Circuit Judges on constitutional questions. It seems easily reasonable to suppose that, when only two Justices were required to call the Court en banc at the time when the Supreme Court was composed of only four members, and often divided in their decisions, with an increased Court of five members, with little chance at any time of even division, that the plain intention was to strike out the word "two" and insert in lieu thereof the word "three."
As a matter of grammatical construction, we think it is also apparent that if the General Assembly, in framing its Joint Resolution, had intended that one Justice, and not two or three Justices, should have the power to demand a session of the Court en banc, it would have been the most natural thing for the language used to have been expressed in the words "any one of them." This would have been a complete following of the former style of the language used in the section originally. The fact that the word "one" was not used in the section "when amended" leads us strongly to the conclusion that in the drafting of that part of the Resolution the word "three," used in the amendatory part of the Resolution, was inadvertently left out.
In speaking of the amendatory Act, then under review, in the case of Bush v. Western Union Telegraph Co., supra, where the case was decided only some three years after the passage of the Act, Mr. Justice Hydrick stated:
"We are gratified that our construction is most strongly fortified by the fact that the Act of 1909, as amended, has been re-enacted, without change, by the Legislature in the Code of Laws of 1912, which seems to be conclusive of the question."
While our construction of the Joint Resolution and the ratifying Act, under examination, has not been strengthened by any direct legislative action, or by any further vote of the electors of the State, still we feel that such construction has been "most strongly fortified" by other facts and *Page 316 circumstances. The amendment, in the form we think it must have been adopted, was published to the people early in 1911; it was so printed in the official Code of 1912; and, again, it was similarly printed in the official Code of 1922. The opponents of the proposition to amend at all, both in the General Assembly and among the electorate, at no time questioned the effectiveness of the necessary Acts to accomplish the purpose sought, or raised a doubt that the amendment as published in our law books was otherwise than what had been the declared intention of the people and their chosen Senators and Representatives.
The General Assembly, in 1920, looking forward to the codification of all the laws of the State in the year 1922, as required by the Constitution (Article 6, § 5), in its Act thereabout, directed the Code Commissioner and his collaborators to insert in the official Code of 1922 the Constitution of the State. A committee of the General Assembly was appointed to supervise this work and its progress. This compilation, including the Constitution, was printed and laid upon the desks of the members of the two Houses in 1921, that full and careful examination thereof could be had prior to the session of 1922, when the Code was to be adopted. Surely, if there had been the least question as to what was the intention of legislators and voters in a matter so important as the amendment to Section 12 of Article 5, and any doubt that the expressed will of the people and the General Assembly had not been correctly recorded in the official Codes of 1912 and 1922, such question and doubt would have been made known much earlier than this. The bench and bar of the State, including especially this Court, have acquiesced for more than 16 years in the provisions of the section as it was supposed to have been amended.
Accordingly this Court is gratified that under the well-considered decisions of the Court, rendered in former times and under other circumstances, it can, and does, conclude that the clearly expressed will of our people and the declared *Page 317 intention of two General Assemblies have been effectually carried out, and that such will and intention are correctly set forth in the official printed Code of 1922.
Referring further to the provisions of the Constitution for the Court en banc, and to the appellants' request that such Court be called, we regard this as an opportune time to announce what we conceive to be the only proper course and practice to be followed in calling a session of the Courten banc.
There is no provision, constitutional or statutory, in our law for an appeal from the Supreme Court to the Court en banc. Unless such right has been expressly given by proper authority, no litigant has the privilege of claiming it; nor can it be granted when requested. Mr. Justice Cothran, speaking for the Court en banc, has said:
"The right of appeal is not a vested one, but a matter of grace." Osteen v. A.C.L.R. R. Co., 119 S.C. 438;112 S.E., 352.
The already much-discussed Section 12 of Article 5 of the Constitution provides when and how the Court en banc shall be called. We quote from Hon. W.H. Townsend, Circuit Judge, who sat as a Judge in the Court en banc in the case of Citizens' Bank v. Heyward, 142 S.E., 651, decided on June 14, 1926, some of the interesting observations he made in his concurring opinion as to that Court:
"Like our former Courts of Error under the Acts of 1836, 7 Stats. at Large, 340, as noted by Chancellor Harper in Pell v. Ball, 1 Rich. Eq., 421, 426, and of 1859, 12 Stats. at Large, 648, the Court en banc differs materially from the Supreme Court, in that it is merely a consultative one, like the English Court of Exchequer Chamber, whose judgments were authoritative, though the suitor had no right of appeal to it. The Court en banc is called into existence by the Justices of the Supreme Court, only when they may desire to consult with the Circuit Judges as to particular *Page 318 causes or questions. It has no fixed terms, and loses jurisdiction when it has answered the questions submitted. InterstateCoal, etc., Co. v. Clintwood Coal, etc., Co.,105 Va., 574; 54 S.E., 593, by filing with the Clerk of the Supreme Court its written decisions, signed by a majority of the Justices and Judges. Hinson v. Pickett, 2 Hill [Eq.], 354. Its functions are then exhausted."
In the same case of Bank v. Heyward, Mr. Justice Cothran, in his dissenting opinion, made some interesting and forceful comments as to the Court en banc, and its relations to the Supreme Court, a part of which we reproduce:
"While it is quite common to refer to `the Court so constituted' as the `Court en banc,' there is, as a matter of fact, no such Court, considered as an independent tribunal, separate and distinct from the Supreme Court (a species of super-Supreme Court). It has no supervisory control, no appellate jurisdiction, over the Supreme Court; in fact, it is called together in cases only in which the Supreme Court, as ordinarily constituted, has failed to render a judgment, on account of the facts which require the calling in of the Circuit Judges, in which event the parties litigant are summoned before a Court, still the Supreme Court, but differently constituted from the ordinary elements, a Chief Justice and four Associate Justices."
As remarked before, and as indicated by both Mr. Justice Cothran and Mr. Circuit Judge Townsend, the Court en banc is not an independent Court, but, called as a consultative Court, it becomes for the time being the Supreme Court, and, in our opinion, the call for such Court should be made while the Supreme Court has pending before it, and before it has determined, the cause in which the assistance of the Circuit Judges is desired. It must be apparent that, if this Court is to have the full benefit of the assistance of the learned and honored Circuit Judges of the State, when it shall be deemed necessary, the call for their aid should be made before the cause in which *Page 319 their learning and wisdom is wished has been decided by this Court, so that the Circuit Judges may aid the Justices in reaching a correct conclusion. To hold the Court enbanc after the Supreme Court has rendered its decision is but to ask the Circuit Judges to review the action of this Court in the cause decided, not to assist its Justices in rendering proper judgment, as contemplated by the Constitution.
As indicated above, not only the power, but the privilege, of calling to the aid of the Court the Circuit Judges, is a matter entirely for the Court and its Justices; it is not a right given to a litigant. The Court, and the Justices thereof, will, therefore, when it is deemed advisable, without petition or suggestion from a party to a cause pending before it, call the Court en banc.
The opposing view, that the right to request a session of the Court en banc is given to a party to a cause, and the position that, when there is any kind of difference in this Court as to a matter involving a constitutional question, it is the duty of the Court to call in the Circuit Judges, so earnestly presented in the dissenting opinion, were completely answered almost a century ago by the Court of Errors, then composed of those distinguished jurists, Chancellors David Johnson, Job Johnstone, William Harper, B. F. Dunkin, and Judges John Belton O'Neall, J.J. Evans, A.P. Butler, D.L. Wardlaw, and Edward Frost, with Chancellor Harper speaking for the Court, in the case ofPell v. Ball, supra, decided in 1845. When referring to the opinion in that case, let it be recalled that the Court of Errors, created by the Act of the General Assembly in 1836, composed of the chancellors in equity and all the law Judges, was the pattern after which was framed our present Court en banc. The requirements for the calling of the Court of Errors were remarkably similar to those stated in our Constitution to be necessary for a convocation of the Supreme Court Justices and the Circuit Judges. Since *Page 320 what Chancellor Harper wrote, so learnedly and forcibly, refutes the arguments advanced against the conclusion we have announced, we quote much at length from his interesting opinion, emphasizing some expressions which are peculiarly appropriate to present conditions and significantly in point upon the question presented. Said the Chancellor:
"I admit that, when an appeal is given, it is generally understood as of course to imply that it shall be at the option of the party against whom judgment is pronounced. But it is absolutely impossible to give this meaning to the word, in two of the instances in which it is used in the clause in question. * * * And I am satisfied that the powergiven to two Judges of demanding a Court of Errors canonly be exercised before judgment rendered.
"If the right of appeal were the right of the suitor, hecould only exercise it after judgment against him; but the appeal Courts have familiarly, and without doubt or question, ordered cases to the Court of Errors, if upon the opening of them any constitutional question appeared to be involved. * * *
"The right of two Judges to demand a Court of Errors indicates the Court to be merely a consultative one, like the English Court of Exchequer Chamber, which any of the Superior Courts may assemble, and whose judgments areauthoritative, though the suitor has no right of appeal to it. Then, what was the evil in the case of constitutional questions?Certainly, it was not that the suitor had not a doubleappeal, or it would have been allowed in all cases, whetherconstitutional questions were involved or not. The suitoris as much aggrieved by an erroneous decision, deprivinghim of property or any other right, if the question be oneof law merely, as if it were of law affected by the Constitution.Constitutional questions were regarded by the Legislatureas of great importance, and the decision of them asaffecting not only the party, but the public. *Page 321
"It concerns the public that the Constitution should be maintained inviolate; and the Legislature has, therefore, made it the duty of the Court to submit all such questions to all the Judges of the State. It is said that the Courts whose errors are intended to be corrected are thus made the Judges in the last resort of the propriety of their own decisions. But every Court in the last resort must, of necessity, be the judges of the correctness of their own decisions, as of their own jurisdiction. * * *
"There is no time fixed by law for the meeting of the Court of Errors; but this depends entirely on the action of the two Courts. Yet, if the suitor may appeal at his option,he must of necessity have the right of requiring the Courtto assemble to hear his appeal. * * *
"It is argued that to decide that no constitutional question is involved is to decide the constitutional question. * * * To decide in favor of the validity of a law which is charged to be contrary to the Constitution, is certainly to decide that there is no constitutional question involved in the case. The Constitution does not touch the question. * * *
"It certainly enters into our consideration that the constructioncontended for would render the administration ofjustice, under our present system, utterly impracticable. It is already very onerous. * * * But if it were left to the option of the parties, in every case, to have an ulterior appeal, it is plain that it would be impossible to get on. On the construction contended for, this would be, in effect, the result. There is hardly a case in which some pretext ofraising a constitutional question might not be found. * * * This would be often resorted to for purposes of delay, and when the docket of the Court shall have accumulated, the delay would be interminable. Is it not safer to leave it to the Court, whose duty it will be to send the cause to the whole of the Judges, not only in cases in which a constitutional *Page 322 question is clearly involved, but in those in which a question can fairly be made?
"There must be a discretion which is not precisely defined. If there is any danger of abuse in this, it is that the discretion will be too liberally exercised; and there is nohardship on the suitor, who has already exercised all theright of appeal which the Constitution intended him to have."
Even though it be sought to make it otherwise appear, we are confident our holdings are not in conflict with anything appearing in or about the case of State v. Holleyman, 55 S.C. 207;31 S.E., 362; 33 S.E., 366; 45 L.R.A., 567, or the case of Traynham v. C. W.C. Railway Co., 92 S.C. 43;75 S.E., 381, referred to somewhat at length in the dissenting opinion. In both these cases the Supreme Court was divided on a question as to whether or not a statute of this State was in conflict with the Constitution of the United States. The session of the Court en banc in each of the cases was ordered at the instance of the entire Court, and not because it was desired by just one member of the Court. It nowhere appears in the decision of either of the case that it was the opinion of the Justices of the Supreme Court, or the opinion of the Justices and the Circuit Judges sitting en banc, that a party to a cause at any time had the right to demand, as a matter of law, that the Court en banc should be called to hear his appeal.
The situations that occurred in the Holleyman and Traynhamcases are the very kind of situations that ought to be avoided, if possible, and it is the purpose now of this Court to prevent, as far as possible, their recurrence. In the first hearing of the appeal in the Holleyman case, the judgment of the Circuit Court was affirmed. When the case was heard by the Court en banc, the judgment of the Circuit Court was reversed, and, as seen, the Supreme Court, composed of its Justices alone, was reversed in the same case on the same legal question by the Supreme Court, composed of its Justices and the Circuit Judges, called the Court en *Page 323 banc. The identical thing occurred in the Traynham case. Who will dare say otherwise than that it would have been better for the Justices of the Supreme Court, when it developed that there was a situation requiring that the Circuit Judges be called to the assistance of the Supreme Court, for the Supreme Court, or a majority of its Justices, before announcing the decisions of the Court, to have first called the Court en banc? Had that course been pursued, then the Supreme Court would have rendered but one decision, and the Court would not have been placed in the unfortunate position of having it appear that it had reversed itself.
We deem it entirely unnecessary to attempt to review the many decisions from jurisdictions other than our own to which attention has been called in the dissenting opinion. The provisions of the Constitution of South Carolina as to the Court en banc are peculiarly singular in this State. We do not know of another State in the American Union which provided for a Court of that kind in its system of jurisprudence. It must be manifest that a decision of any foreign jurisdiction could have no bearing whatever upon any question now before this Court in this case. The very fact that it is necessary to look to the decision of Courts outside of South Carolina for arguments to use that this Court is wrong in the views it holds is but a concession that the decisions in South Carolina sustain the opinions of the majority of the Court.
The dissenting opinion observes, with some interest, that the present Chief Justice sat as member of the Court enbanc in both the Holleyman and Traynham cases, and joined in the action of that Court, which resulted in the reversal of the judgments of the Circuit Court, and thereby also reversed the former decisions of the Supreme Court. The implication, we assume, is that the present Chief Justice is not now in harmony with some positions he has formerly taken. The facts do not warrant even a suggestion of inconsistency on the part of the present Chief Justice, *Page 324 for there is no change in his position in any way. The question as to the proper procedure for calling the Courten banc was not in the slightest way adverted to in either the Holleyman or Traynham cases. Whatever the petitions for rehearing may have contained, the fact remains that the Justices of the Supreme Court were divided in their opinion in both cases, and the Court en banc was convened in both cases by the Supreme Court. The experience attained from the results of those two cases has caused the present Chief Justice, and the members of the Court who now agree with his view, to more strongly feel the propriety of marking out for the efficient administration of justice the procedure which, it is thought, should be followed in the convocation of the Court en banc.
As will be clearly seen by reference to Article 5, Section 12, of the Constitution, already quoted, the Circuit Judges are to be called in only when three of the Justices shall have decided that "there is involved a question of constitutionallaw," upon the determination of which the entire Court is not agreed, and the decision as to whether or not the Circuit Judges shall be called in involves the exercise of their discretion. "Constitutional law" is defined in Mr. Black's Law Dictionary as follows:
"That department of the science of law which treats of Constitutions, their establishment, construction, and interpretation, and of the validity of legal enactments as tested by the criterion of conformity to the fundamental law."
That definition, in somewhat varying language, but practically with the identical meaning, is approved by many well-recognized authorities.
We do not think the alleged error on the part of the Circuit Judge, that he charged on the facts in violation of Section 26 of Article 5, raised a question of constitutional law. There is not involved here the construction or interpretation of the provisions of that section, which are: "Judges shall not charge juries in respect to matters *Page 325 of fact, but shall declare the law." All the appellants have done was to allege that, as a matter of fact, not as a matter of constitutional law, the Circuit Judge violated the quoted provision. The question, therefore, before this Court, has been not as to the intention or effect of the constitutional provision, but if the language used by the Circuit Judge in his charge to the jury was within the constitutional inhibition. An apt analogous illustration is this: One convicted in the Court of General Sessions of crime alleges, on appeal to this Court, that he was tried, over his protest, by a jury of 11 men, in violation of the constitutional provision giving him the right to trial by a jury of twelve. The State contends that the jury consisted of twelve. The question then before this Court would not be a construction or interpretation of the constitutional provision referred to, for it would be conceded by all interested that the accused was entitled to trial by a jury of twelve. The only question before the Court would be one of fact as to the number of jurors who sat in the trial.
So here it is conceded by all the parties to this cause, and by all the members of the Court, that the Circuit Judge should not have charged on the facts of the case. All this Court has had to do was to read the testimony, from which the facts of the case were derived, and then to read the charge of the Circuit Judge, and see if in any respect the Circuit Judge contravened the constitutional provision. In the opinion of Mr. Justice Marion, which was adopted as the opinion of the Court, the position was taken that, under the decisions of this Court, the Circuit Judge did not charge on the facts of the case at bar. The dissenting opinion filed in the case did not discuss this question. The usual rule is that, when a dissenting opinion does not controvert any position taken in the majority opinion, it is assumed that the dissenting opinion acquiesces in the conclusions of the majority as to positions not controverted. Chancellor Harper stated: *Page 326
"To decide in favor of the validity of a law which is charged to be contrary to the Constitution is certainly to decide that there is no constitutional question involved in the case. The Constitution does not touch the question."
To decide that the charge of the trial Judge does not violate the constitutional inhibition against charging on the facts is certainly to decide that there is no constitutional question involved in the case; for, as said by the Chancellor, "the Constitution does not touch the question." Now, perhaps even more so than in 1845, "there is hardly a case in which some pretext of raising a constitutional question might not be found." The good old standby intended for honest use, and so frequently abused, that no person shall be deprived of property without due process of law, is always eagerly anxious to be the "unbidden and perhaps unwelcome guest * * * at the door."
And of late keeping close company with that "constitutional question" is the other, that imputes error because the trial Judge charged on the facts. In almost every case decided by a jury, now brought to this Court, complaint is made, and generally without foundation therefore, that the Circuit Judge has violated the provisions of Article 5, Section 26, by charging on the facts. If this Court should accept this "pretext" of raising a constitutional question, and on account thereof call in the fourteen Circuit Judges of this State every time there is a disagreement as to an exception raising a "constitutional question" as to charge on the facts, and every time a defeated litigant made demand therefore, because the Constitution, in his opinion, had been violated, we would bring about a situation even more unfortunate than the one suggested by the great McIver. The Circuit Judges would be engaged practically all of their time in attendance upon the Court en banc, therewith the incidents of "expense, delay, and interference with the ordinary duties of the Circuit Judges." This would necessitate the probable continuous appointment of fourteen *Page 327 or more Special Judges to conduct the business of the Circuit Courts.
This Court is of the opinion that we can safely follow the precedent laid down by this Court, composed of Justices McIver, Pope, Gary, and Jones, all of whom served the State ably in the high office of Chief Justice, when they declared in Florence v. Brown, supra: "We are not disposed to exercise the power vested in this Court, except where some grave question of public concernis involved." The question whether or not a Circuit Judge in some particular case charged on the facts of that case is certainly not a grave question of public concern. Mr. Justice Cothran has said:
"It is a proverb as old as the law that it is to the interest of the State that there be an end of litigation." SumterTrust Co. v. Holman, 134 S.C. 412; 132 S.E., 811.
This case, as already stated, has been heard by this Court twice, and the conclusions reached have been against the appellants in both instances.
It is not our purpose to go again into the facts of the case. We have only legal questions before us.
We have no desire to fire "a parting shot" at either of the parties to this cause. The one fired in the dissenting opinion, like most "parting shots," was too late to be effective. It is an argument that the verdict of the jury was wrong. So far as that verdict is concerned, this Court is concerned only with the question if the trial Judge, in the trial of the cause, committed any error of law. We are only judges of the law. We are not advocates of either of the parties to the cause. The arraignment of the respondent in the dissenting opinion in all likelihood would have been interesting to the trial jury, if used by counsel for the appellants in the addresses to that tribunal. We are not called upon here to defend him from that arraignment. It is sufficient to say that the jury has vindicated him. We shall not undertake to criticize the verdict of a jury, who, it must be *Page 328 assumed, did their duty as they conceived it to be, and who have not the privilege or opportunity of making any reply to any criticism we might offer as to their conduct.
In their petition now before this Court the appellants ask, in any event, if the judgment below be affirmed, that the same be made effective within 60 days from the last day of the term of this Court (November — , 1925), when the appeal was first heard, and that the plaintiff be required to cancel and remit interest on his judgment accruing since said time. The reasons for this request, briefly stated, are that Section 17 of Article 5 of the Constitution provides that "it shall be the duty of the Justices of the Supreme Court to file their decisions within sixty days from the last day of the Court at which the cases were heard," and that the delay in rendering the judgment herein has not been caused by the laches of the appellants. To sustain this request there is cited the case of Griffith v. Cromley,58 S.C. 448; 36 S.E., 738.
The facts relating to the hearing and determination of this appeal are these: It was heard first on November 10, 1925; the Court was then composed of Chief Justice Gary, Associate Justices Watts, Cothran, and Marion, and Acting Associate Justice R.O. Purdy. Chief Justice Gary, because of illness, did not participate in the case. Mr. Justice Marion resigned, effective January 1, 1926, but he was appointed by the Governor to serve as an Acting Associate Justice in all causes formerly heard by him. In May, 1927, the four Justices who sat in the cause, being evenly divided in their opinions as to affirmance or reversal, on account of the great importance of the cause, deemed it best that there be a rehearing before a full Court, and so directed. In the meantime, Chief Justice Gary had died; Mr. Associate Justice Watts became Chief Justice, and Justice Blease, Stabler, and Carter became members of the Court. The rehearing was had on June — , 1927, without objection or question of any kind by appellants or *Page 329 respondent. The decision of the Court affirming the judgment below was handed down on September 21, 1927, and within ten days thereafter the appellants filed their petition for another rehearing.
It is well known to the bar of the State that the work of this Court for several years past has been exceedingly heavy, and, unfortunately, it has been interfered with to a great extent by both the illness and deaths of several members of the Court. This case has been here a long time, due much to the facts related above, but even more so because this Court has agreed at all times with one thing so frequently and insistently urged by the appellants, that the issues involved were of great importance, and that the financial interests of appellants at stake were large.
It has required much time for the Court as a whole, and for several Justices and Acting Associate Justices, to properly consider the cause. This will be quite apparent to the appellants, as well as all others concerned, when they are reminded that the transcript of record contains 236 pages; that each of the appellants made 19 exceptions, all important; that the printed arguments for the appellants contain 83 pages, and the argument of the respondent has 77 pages; that the total number of authorities cited by both sides, including textbooks, aggregate at least 150; and, most important of all, that the Court was divided in two instances as to the determination it should make. These facts have been related that the seeming delay of the Court may be understood.
Even in the circumstances, however, as a matter of law, we do not see how this Court, though it felt disposed to do so, could grant the request of the appellants. We do not think the Griffith case, supra, warrants our doing so. In that case, which was an action in equity, it was contended that the decree of a Judge of the Court of Common Pleas was void, because it was not filed within 60 days after final adjournment of the Court at which the cause was *Page 330 heard, but this Court held otherwise. It was decided, in effect, that the Court would not, where it could prevent, permit a party to a cause to suffer by delay, not occasioned by his fault, but due to the Court itself.
In an equitable action, this Court has very great latitude in rendering its judgments, and might, in proper cases, order a remission of interest. In an action at law, however, and such is the case at bar, this Court is "a Court for the correction of errors at law under such regulations as the General Assembly may be law prescribe." Section 4, Article 5, Constitution. We are not advised of any statutory enactment which permits the Court to order a remission of interest on a judgment, based upon the verdict of a jury. To the contrary, the General Assembly has expressly declared that all money judgments shall draw interest at the legal rate. Section 3636, Vol. 3, Code 1922. It follows, therefore, that the Court cannot relieve the appellants, even if it were thought proper to do so.
As to the other matters mentioned in the petition for rehearing, the Court has again, at appellants' instance, reviewed the trial below, and we are satisfied with the opinion of the Court, as written by former Associate Justice Marion, which covered all the exceptions of the appellants, and we find no error of law therein. In connection with the opinion of the Court, however, we direct that the charge of the trial Judge and his order refusing a new trial be reported.
It is hereby ordered that the petition for rehearing be denied, and that the order staying the remittitur be revoked.
MR. CHIEF JUSTICE WATTS and MESSRS. JUSTICES BLEASE and STABLER concur.
MR. JUSTICE CARTER concurs in result.