Duncan v. the Record Publishing Co.

I agree entirely with the denial, in the proposed order, of the contention that a single Justice has, under any circumstances, the right to demand a convocation of the Court en banc, as it is denominated. *Page 331 As to certain other matters discussed in the order, and as to the conclusion that the petition should be dismissed, I do not agree, for the reasons which follow:

In the proposed per curiam order it is stated:

"* * * The call for such Court should be made while the Supreme Court has pending before it, and before it hasdetermined, the cause in which the assistance of the Circuit Judges is desired."

If this statement is intended to announce simply a matter of preferred course of procedure, I have no objection to it, provided that the custom heretofore prevailing is observed that, where a dissenting opinion has been submitted, both opinions shall be held for consultation. The statement, however, may be construed as a denial of the power to convoke the Court en banc, after the filing of theopinion. As to this, I think that, until the remittitur shall have been transmitted by the Clerk of this Court to the lower Court, this Court has absolute control of the case. It may withdraw the opinion which has been filed; it may substitute another for it; it may modify it in any manner; it may order a reargument of the appeal; or it may convoke the Court en banc, and open up the entire appeal before the Court as thus constituted.

While perhaps in a majority of instances of the convocation of the Court en banc, it has been ordered before the opinions have been formally filed, this Court has distinctly recognized its power to do so after such event. The case ofState v. Holleyman, finally decided as reported in 55 S.C. 207;33 S.E., 366; 45 L.R.A., 567, was heard at a term prior to October, 1898; on October 31, 1898, the opinionof the Court was filed, affirming the judgment of the Circuit Court, by a divided Court (which at that time was composed of four Justices); the Chief Justice (McIver) and Justice Gary dissenting. See 31 S.E., 362. Thereafter the defendant appellant filed a petition for a rehearing. It does not distinctly appear in the report of the case that a *Page 332 rehearing before the Court en banc was asked, but upon the petition the Court made the following order:

"A question arising under the Constitution of the United States being presented for the determination of this Court in these cases, and the opinions which have been filed showing that `the entire Court is not agreed' as to the determination of that question, it is necessary, under the provisions of Section 12 of Article 5 of the Constitution of this State, that all of the Circuit Judges shall be called to the assistance of the Supreme Court for the decision of such question. Uponthis ground the petition for a rehearing must be granted, and these cases are set, therefore, down for hearing," on January 3, 1899, before the Court en banc.

The case was reargued before the Court en banc, at the date stated, and on June 2, 1899, the judgment of the Court, "thus constituted," was rendered, reversing the judgment of the Circuit Court. This Court did not decline to convoke the Court en banc upon the ground that the opinions had been filed; nor did it hesitate to act upon the patent situation that, although no clause of the Constitution was up for interpretation or construction, a constitutional question was involved, in the application of the Constitution to the admitted facts of the case. It is of interest to observe that the present Chief Justice, then a Circuit Judge, sat as a member of the Court en banc and concurred in the opinions of Chief Justice McIver and Justice Gary, reversing the action of the Circuit Court. It is significant that in the judgment of the Supreme Court as then constituted, the Court en banc, no reference whatever was made to the judgment of the Supreme Court as ordinarily constituted, which had been filed, but stayed by order, clearly showing that the judgment of the Circuit Court was the judgment being reviewed on appeal, and not that of the Supreme Court.

The case of Traynham v. Railroad Co., finally decided as reported in 92 S.C. 43; 75 S.E., 381, was heard at the *Page 333 June term, 1911, of this Court; on July 8, 1911, the opinionof the Court was filed, affirming the judgment of the Circuit Court in favor of the plaintiff. Mr. Justice Gary, later Chief Justice, filed a dissenting opinion. See 71 S.E., 813. On July 12, 1911, the defendant appellant filed a petition for a rehearing before the Court en banc, upon the ground that there was involved in the cause a question of constitutional law, upon the determination of which the entire Court was not agreed. I set out below the entire petition:

"PETITION FOR REHEARING "To the Honorable the Supreme Court of South Carolina:

"The defendant appellant, Charleston Western Carolina Railway Company, hereby petitions for a rehearing of this case in order that this Court may call to its assistance the Circuit Judge as provided by Section 12 of Article 5 of the Constitution of 1895, as well as by Section 19 of an Act entitled `an Act to provide for the organization of the Supreme Court, to define its jurisdiction and to provide for the appointments of its officers and to define their powers, approved 19th day of January, 1896, 22 Statutes, page 3'; that is to say, for a rehearing before the Court en banc upon the following grounds and for the following reasons:

"First. It appears that there is involved a question of constitutional law upon the determination of which the entire Court is not agreed, and this defendant is entitled to a rehearing before the Court en banc under the provisions of the Constitution referred to above and as construed by this Court in the case of State v. Holleyman, 55 S.C. 235;31 S.E., 362; 33 S.E., 366; 45 L.R.A., 567.

"Second. The main opinion of the Court in this case, written by Mr. Chief Justice Jones and concurred in by Messrs. Justices C.A. Woods and D.E. Hydrick, construes the Act of the Legislature of South Carolina involved in this case as applying to interstate commerce, because the opinion holds and decides that the shipment is interstate. It is, therefore, respectfully submitted that the said Act of *Page 334 the Legislature of South Carolina is unconstitutional, null, and void, as being in conflict with Article 1, Section 8, clause 3, of the Constitution of the United States, which confers on Congress power to regulate interstate commerce with foreign nations and among the several States, and denies to the State of South Carolina the power to pass any Act which undertakes to regulate interstate commerce or burden the same; (b) the Act in question as construed by this Court regulates interstate commerce, in violation of the provisions of the Constitution of the United States above referred to, and places an unreasonable burden on such commerce.

"Third. It is further respectfully submitted that the decision of the Court in effect is a regulation of interstate commerce and in conflict with the provisions of Article 1, Section 8, clause 3, of the Constitution of the United States, which denies to the State, either by Act of the Legislature or by a decision of its Courts, the right to regulate interstate commerce or burden it in any way.

"The decision of the Court in the case determines a question arising under the Constitution of the United States, to wit, under Article 1, Section 8, clause 3, and the opinions which have been filed show that the entire Court is not agreed as to the determination of said question. Mr. Justice Gary dissents in his opinion from the majority of the Court, and holds that the Act is a burden on interstate commerce, and further that a shipment during its actual transportation in interstate commerce cannot be subjected to State legislation at any point along the line of transportation, whether before or after reaching its destination. In this situation this case falls squarely within the provisions of Section 12 of Article 5 of the Constitution of South Carolina, and entitles this defendant, as a matter of law, it is respectfully submitted, to a rehearing before the Courten banc, and particularly so in view of the decision of this *Page 335 Court as announced in the case of State v. Holleyman,supra.

"Wherefore the defendant petitions for a rehearing of the case before the Court en banc, and that an appropriate order may be made by this honorable Court in that behalf, and in the meantime the remittitur be stayed until the further order of this honorable Court."

The petition was granted, and the case set down for reargument before the Court en banc at the November term, 1911. I have not before me a copy of the order, but it is fair to assume that it was based upon the grounds stated in the petition, for which reason I have incorporated herein the petition. This Court did not decline to convoke the Courten banc upon the ground that the opinions had been filed; nor did it hesitate to act upon the patent contingency that, although no clause of the Constitution was up for interpretationor construction, a constitutional question was involved,in the application of the Constitution to the admitted factsof the case.

It is of interest to observe that the present Chief Justice, then an Associate Justice, sat as a member of the Courten banc, and concurred in the leading opinion reversing the action of the Circuit Court. And in this connection it is important to observe that the Court en banc, as it has come to be designated for convenience, is not a Court establishedto hear appeals from the Supreme Court, as ordinarily constituted. It is the Supreme Court differently constituted, and its province is to pass upon the appeal from the lower Court; the appeal to the Supreme Court, as ordinarily constituted, is thereby transferred to the Court en banc, as if it had never been heard or considered by the Supreme Court.

II. I do not agree with the statement in the order that:

"* * * 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 *Page 336 advisable, without petition or suggestion from a party to a cause pending before it, call the Court en banc." (Italics added.)

It does not appear to have been apprehended by the learned Justice who prepared the order that there are two distinct contingencies in which it is made mandatory upon the Chief Justice to convoke the Court:

(1) When it shall appear to the Justices, or any three of them, that there is involved a question of constitutional law, or of conflict between the federal and State laws, etc., "upon the determination of which the entire Court is not agreed."

(2) Whenever the Justices or any two of them, desire it,on any cause or question before the Court.

In City of Florence v. Brown, 49 S.C. 332;26 S.E., 880; 27 S.E., 273, the Court said:

"Both the Constitution and the statute above referred to provide for but two contingencies in which the Circuit Judges shall be called in: (1st) Where a constitutional question is involved; 2d where at least two of the Justices of this Court desire that the Circuit Judges shall be called in."

It is manifest that the second contingency is the creature of the desire, option, volition, of the entire Court, or of any two of the Justices, in any cause, or upon any question, constitutional or otherwise. The exercise of that "desire" is necessarily committed to the Justices, and a suggestion from a litigant, who is vested with no right to such exercise, would obviously constitute at least an act of impropriety, if not impertinence.

But the first contingency is not the creature of the desire, option, volition, of any number of the Justices, or even of the entire Court. If it should appear to the Court, or to any three of the Justices, that in the appeal from the Circuit Court, there is involved a question of constitutional law, upon the determination of which the entire Court is not agreed, the Constitution by its terms, specifically declared to *Page 337 be mandatory (Article 1, § 29), imposes the inescapable duty upon the Chief Justice to convoke the Court en banc. The unbidden and perhaps unwelcome guest is at the door; the Constitution says that he shall be admitted. It is not for this Court to say that the exercise of a right, guaranteed by the Constitution, to have the question of the invasion of the Constitution tried by a Court constituted as it has prescribed, "is a matter entirely for the Court and its Justices;it is not a right given to a litigant."

The vital question, then, is first presented: Does the appeal in this case, from the judgment of the Circuit Court, involve a question of constitutional law? I can offer no more convincing evidence of the fact that it does than to quote from the opinion prepared by Mr. Justice Marion, at the time a member of this Court, which has received the approval of four of the Justices of this Court as now constituted:

"Appellants' fourth general proposition is that the trial Judge erred in charging the law of damages. It is contended (exception 14) that the Court erred in charging as follows: `If the jury find from the evidence, by the greater weight thereof, that the publication in question was libelous, then the plaintiff would be entitled to recover such sum by way of actual damages as the jury in its discretion may think proper to compensate him for his injury, including the humiliation which he may feel and may have suffered by reason of the publication, and the jury are instructed that, if they find the publication was libelous, the plaintiff wouldbe entitled to substantial damages.' The error assigned is (a) that the charge was in respect of matters of fact, and soviolated Section 26 of Article 5 of the Constitution; (b) that the amount of damages was in the sound discretion of the jury, etc.; and (3) that the charge was peculiarly prejudicial, in view of plaintiff's failure to offer testimony of any actual damage, and in view of defendants' testimony going to mitigation and reduction of damages. It is further contended *Page 338 (exception 15) that the Judge, in violation of theconstitutional inhibition, intimated to the jury his opinion that plaintiff's actual damages should be increased, and not diminished, and that plaintiff should be awarded punitive damages by charging as follows," etc.

Mr. Justice Marion then proceeds to furnish the most conclusive proof that a question of constitutional law was involved in the cause, by considering and deciding it.

The question is not whether the conclusion reached by Mr. Justice Marion is correct, but whether the issue, raised by the exceptions, that the Circuit Judge violated the provisions of Article 5, Section 26, of the Constitution, "involved a question of constitutional law." His consideration of it, and the statement of his conclusion that the charge, as amatter of law, was not in violation of the Constitution, leave no possible room for doubt that a question of constitutional law was involved in the appeal. If it was so involved, and it appears that in its determination the entire Court is not agreed, the constitutional right of the appellants to a convocation of the so-called Court en banc became complete, notas a matter of privilege, to be awarded at the pleasure or will or discretion of this Court, but as a matter of constitutionalright — demandable; a consideration which clearly marks the distinction between the two contingencies under which the Court en banc may be convoked.

That the entire Court is not agreed upon the resolution of the constitutional question involved, it would be sufficient to say that, as a member of the Court, I do not concur in the conclusion of the Court that in the charge of the trial Judge complained of he did not violate the provisions of Article 5, § 26, of the Constitution. I do not, of course, contend that my single opinion that a constitutional question is involved in the appeal entitles the petitioners to a convocation of the Court en banc. Under the express constitutional provision, that contingency must appear to at least three of the Justices of this Court. My effort shall *Page 339 be to convince at least two other members of the Court that that contingency is presented; and, if so, the duty of calling in the Circuit Judges to hear the pending appeal is mandatory.

III. The order which has been proposed, dismissing the petition for a rehearing and a convocation of the Court enbanc, is I understand it, is based upon two propositions, which in my respectful opinion are entirely erroneous:

A. That a question of constitutional law is presented only where an interpretation or construction of a clause of the Constitution is under investigation.

B. That, where this Court has decided in favor of the constitutionality of a law or other matter, that fact is conclusive that no constitutional question was involved.

A. If this proposition should be sustained I do not doubt but that 90 per cent. of constitutional questions would be held to be not constitutional questions. Constitutional questions arise under either of two conditions:

(1) The interpretation or construction of a certain clause, which under many circumstances is so plain and unambiguous as to constitute its own interpretation; in others, not.

(2) The application of an interpreted clause to a given situation, presenting the issue of the validity of a statute, or of a judicial ruling or determination.

In the case at bar there is no question as to the interpretation or construction of Article 5, § 26; it is perfectly plain and unambiguous: "Judges shall not charge jurors in respect to matters of fact, but shall declare the law." Hence, if there is a question of constitutional law involved, it is in the application of this clause to the admitted facts in reference to the charge of the Circuit Judge. There is no question but that he did charge as complained of:

"* * * The jury are instructed that, if they find the publication libelous, the plaintiff would be entitled to substantialdamages." *Page 340

The defendants moved for a new trial upon the ground that this charge was a violation of the clause quoted; the motion was overruled. The defendants excepted to the judgment entered on the verdict upon the same ground. The matter was fully argued at the hearing before this Court, and was fully discussed and considered in the opinion of Justice Marion, which has been approved by a majority of this Court. The proposed order declares:

"All the appellants have done was to allege that as a matterof 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."

Certainly no question of fact is involved in that issue. There is no question as to the interpretation of the clause of the Constitution; there is no question as to what the Circuit Judge charged as a matter of fact; and necessarily, upon the conceded facts, the only issue that could have been raised is one of law, of constitutional law. Of course, in the illustration employed in the opinion, where the constitutional right to a jury of 12 men might be involved, the primary issue would be one of fact, whether the jury actually was composed of 11 or 12 men. If, as a matter of fact, it should appear that the jury was properly constituted, there could arise, of course, no constitutional question. If, however, it should appear that only 11 men sat on the jury, the integrity of the jury, and the validity of the objection to its action as thus constituted, would necessarily have to be determined by the application of the constitutional provision in question, which of necessity presented a question of constitutional law.

In Waggoner v. Wichita, 273 U.S. 113; 47 S.Ct., 271;71 L.Ed., 566 (decided January 3, 1927), the plaintiff contended that a certain tax assessment was violative of the Fourteenth Amendment; the District Court held that it was *Page 341 not; on writ of error the Circuit Court of Appeals held the same; on writ of error the Supreme Court held that, as the appeal involved a question of constitutional law, it should have come directly to that Court; rather than remand the case to the Circuit Court of Appeals, with direction to transfer it to the Supreme Court, that Court entertained the appeal and confirmed the holdings of both of the inferior Courts. The fact that both had decided the issue against the constitutional objection did not, manifestly, in the mind of the Supreme Court, alter the conclusion that a constitutional question was involved.

A "question of constitutional law" embraces scores of rights and immunities under the Constitution, the protection under which, to the citizen, does not at all involve an interpretation or construction of any clause of the Constitution, but the application of the Constitution to the state of facts undisputed: Religious worship, freedom of speech, equal protection of the laws, taxation, bills of attainder, ex post facto laws, right of suffrage, elections, dueling, Courts public, slanders, seizures, double jeopardy, bail, corporal punishment, contempt, habeas corpus, imprisonment for debt, and many others. Could it be contended that, where a person claims such rights or immunities, the issue does not involve a question of constitutional law, for the reason that there is no question as to the interpretation of the particular clause under which the right or immunity is claimed? The right or immunity is often claimed because there is no question as to the interpretation.

There are 46 cases cited in the notes to Article 5, § 26, in which this Section was considered in its application to the admitted facts; in some the constitutional contention of the losing suitor was sustained; in others, not. Can it be said that not one of those cases involved a constitutional question, because the interpretation or construction of the clause was not before the Court? *Page 342

"Where the constitutionality or legality of a fine is contested, appeal lies, irrespective of the amount." Ex parte Travers, 3 La. Ann., 693.

"* * * Constitutional law treats [of] the relations of the government with the individual from the standpoint of the rights of the individual." Goodenow, Comp. L., 8.

In Carter v. McClaughry, 183 U.S. 365; 22 S.Ct., 181;46 L.Ed., 236, the petitioner filed a petition for a writ of habeas corpus, alleging that his imprisonment was violation of the Constitution of the United States, Fifth Amendment, which provides that:

"Nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb."

The Supreme Court held that it had jurisdiction upon the ground that the case involved the application of the amendment to the admitted facts. There was no controversy as to the interpretation of the amendment.

The Illinois statute provides that an appeal shall go directly to the Supreme Court, where the case involves a construction of the Constitution. In Reid v. Chicago, 20 Ill. App. 149, it was held that the Supreme Court has jurisdiction when the case involves a question whether drawing off water from a stream, subject to an easement of abutting property owners, amounts to a taking of property within the Constitution. Also a judgment finding defendants guilty of contempt for refusal to permit an inspection of their books, where the defense was that the order violated constitutional rights. Denison v. Schermerhorn, 257 Ill., 128;100 N.E., 491.

In Wiley v. Sinkler, 179 U.S. 58; 21 S.Ct. 17;45 L.Ed., 84, it was held that the right to vote for members of Congress was derived from the Constitution of the United States, and that the Court had jurisdiction of an action for damages for the refusal of the exercise of such right, as one arising from the Constitution. There was no controversy in that case as to the interpretation of the Constitution, but *Page 343 it was over the application of the Constitution to the admitted facts.

"A question of constitutional law is involved where the question presented by an appeal to the appellate Court is whether the trial Court erred in refusing a demand for the submission of the case to a jury." Tinsley v. Kemery,83 Mo. App. 94.

Also:

"Where the right to a jury trial is claimed, and its denial excepted to, at every stage of the proceedings." Creve v.Tamm, 138 Mo., 385; 39 S.W. 791.

The Judicial Code of the United States, in Section 238, provides that a writ of error from the Supreme Court to a lower Court shall lie "in any case that involves the construction or application of the Constitution of the United States." In Berry v. Davis (C.C.A.), 15 F.2d 488, it was held that the Supreme Court had exclusive jurisdiction of an appeal from a judgment of a District Court, on petition for mandamus to compel county and precinct registrars to register negro voters. It was held to involve a dispute under the Fourteenth and Fifteenth Amendments. The case did not involve an interpretation or construction of those amendments, but their application to the admitted facts.

In Empire State-Idaho Mining Developing Co. v. Hanley,205 U.S. 225; 27 S.Ct., 476; 51 L.Ed., 779, it is held "* * * that it is only when the Constitution of the United States is directly and necessarily drawn in question that such an appeal can be taken, and the case must be one in which the construction or application of the Constitution of the United States is involved as controlling."

How it can be doubted, in the present case, that the Constitution of South Carolina is "directly and necessarily drawn in question," in its construction or application to the situation presented, I cannot conceive. If so, it necessarily follows that the appeal involved a "question of constitutional law." *Page 344

In Pierce v. Creecy, 210 U.S. 387; 28 S.Ct., 714;52 L.Ed., 1113, it was held that, in habeas corpus proceedings, the contention of the petitioner that the indictment upon which extradition papers had been issued did not charge a crime against the federal government, within the meaning of the Constitution regulating extradition, involved the construction of the Constitution.

Hundreds of cases might be cited where it was held that a question of the application of the Constitution to a given state of facts, in the Federal Courts, was a question of constitutional law.

The order declares:

"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 14 Circuit Judge 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."

It should be remembered that the Constitution does not provide for the convocation of the Court en banc upon the "pretext" of a constitutional question being involved. Two conditions must be met: (1) At least three Justices of the Court must be satisfied that there is involved a question of constitutional law; and (2) that in the determination of that question the entire Court is not agreed. If these conditions appear to be present, it can hardly be that the injection into the case of the constitutional question can justly be characterized as a "pretext." If the claim of a constitutional question should be considered so devoid of merit *Page 345 as to constitute a "pretext," it would scarcely pass both of these requirements.

It is not within the province of this Court to consider what it conceives may be the consequences of a plain constitutional mandate; that is a consideration presumed to have been in the minds of the framers of the Constitution; and, whatever inconveniences may appear to result from it, this Court has no right to set its judgment against that of the Constitution makers. As Chancellor Harper states in the Pell v. Ball case:

"It concerns the public that the Constitution should be maintained inviolate; and the Legislature [I interpolate,here the Constitution itself] made it the duty of the Court to submit all such questions to all the Judges of the State."

B. It is insisted that no question of constitutional law is involved, for the reason that this Court has decided that the charge of the Circuit Judge was not in conflict with the Constitution. Here the misapprehension is conspicuous, that the decision of the Court en banc is a review of the decision of the Supreme Court which has been filed. I have endeavored to demonstrate that such is not the case. If the Chief Justice, under the constitutional mandate, should order that appeal to the Court en banc, the opinions of this Court which have been filed would become absolutely of no force whatever, except as persuasive arguments of the correctness of the opposing views. The appeal would be from the judgment of the Circuit Court, and the decision of the Court and the decision of the Court en banc would be "final and conclusive," regardless of the majority decision of this Court, as has occurred in several instances.

The only plausible argument to sustain this position, as I see it, is a supposed analogy between the old Court of Errors and the Court en banc. There can be no doubt but that the conception of a Court en banc is attributable to the constitution and powers of the old Court of Errors, but they are so entirely different from the constitution of what *Page 346 we have come, simply for convenience, to designate as the Court en banc, that a comparison between them fails to supply, from a supposed analogy, any light whatever upon the point at issue.

The Court of Errors was an independent Court, composed of the law judges, six in number, and the chancellors, four; the act specifically provides for an appeal from either the Court of Appeals at law or the Court of Appeals in equity; it was vested with the power to make its own rules; and it made them (City Council v. Ahrens, 4 Strob., 241); and its decisions, as long as it existed as a Court, were reported as the decisions of the Court of Errors, found from Rice's Law, A.D., 1838, to 15 Rich., A.D., 1867.

What we have come to refer to as the Court en banc is nothing more than the Supreme Court sitting with the Circuit Judges, who, as the Constitution provides, have been "called to the assistance of the Supreme Court." It has no supervisory control over the Supreme Court; it has no appellate jurisdiction to review the decisions of the Supreme Court; it is more than a consultative Court, for each of the Circuit Judges has as potential an influence in the decision as a Justice of the Supreme Court; it makes and is authorized to make no rules for its procedure; and its decisions are the decisions of the Supreme Court, differently constituted, declared to be and enforced as such.

Great stress is laid upon the following extract from the opinion of Chancellor Harper in the case of Pell v. Ball, 1 Rich. Eq., 419:

"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."

And from it it is concluded:

"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 *Page 347 question involved in the case. For, as said by the Chancellor, `The Constitution does not touch the question,'" — developing against the error, as I see it, of apprehending that this Court has rendered a decision, from which an appeal would lie to the Court en banc. The declaration of the great Chancellor above quoted must be taken in connection with the question immediately under review in that case, which was whether a litigant, who had failed in his contention before the Court of Appeals in Equity that a certain order of the Chancellor below was in contravention of the Constitution, had the right suo motu to appeal to the Courtof Errors.

On circuit the defendants contended that, under the Constitution, the Court of Equity was without jurisdiction to divest a party of his title to land (as would be done in cases of partition), except in actions for the partition ofintestate estates; that it could not be done in other cases of tenancy in common. The Chancellor decided against this contention, and upon appeal to the Court of Appeals in Equity, composed of the four Chancellors of the State, the decree of the Chancellor on circuit was affirmed, the Court holding against the claim of unconstitutionality. The appellants then, of their own motion, had the Clerk of the Court of Errors to enter the case upon the docket of that Court, as an appeal from the Court of Appeals in Equity to the Court of Errors, under the seventh section of the Act of 1836, establishing the Court of Errors. The matter before the Court was a motion by the respondents to strike the case from the docket of the Court of Errors. That was the matter under consideration, and not whether a question of constitutional law was involved in the appeal before the Court of Appeals in Equity, as unquestionably there was. The Court of Errors decided that, as the Court of Appeals had decided that there was nothing in the constitutional contention of the appellants, the entry of the appeal upon its docket, without some direction to that effect by the *Page 348 Court of Appeals, was invalid, and granted the motion to strike.

The point in the decision was that the review, by the Court of Errors, of a decision of the Court of Appeals, was not strictly an appeal, which ordinarily implies that it shall be at the option of the losing suitor, but a matter within the discretion of the Court of Errors, and to be ordered by it. The obvious distinction between that case and the case at bar is that in the Pell v. Ball case there was a decision andjudgment of the Court of Appeals, sought to be reviewed by the Court of Errors, while in the case at bar there hasbeen no decision and judgment of this Court, final in its character. The fact that an opinion has been filed, affirming the judgment of the Circuit Court, by no means constitutes a final judgment, so long as the remittitur has been stayed, and the whole case is under the control of this Court. It is not in contemplation of the Constitution that the Courten banc shall review the judgment of the Supreme Court, which, of course, could be done only in case there had been a final judgment of the Supreme Court. When a Courten banc has been convoked, the unmatured judgment of the Supreme Court is suspended, and the whole case, as an appeal from the lower Court, is heard and determined; the judgment rendered is still the judgment of the Supreme Court, although it may be the reverse of the tentative conclusion (made tentative by the convocation of the Courten banc of the Supreme Court.

If, therefore, the above extract from the opinion of Chancellor Harper be correct, it has no application to the case at bar, for the reason that there has been no adjudication by the Supreme Court that the Constitution has not been invaded. The question which would be presented to the Court en banc would be whether the action of the lower Court was an invasion of the Constitution, regardless of the tentative conclusion of the Supreme Court, as evidenced *Page 349 by the opinion which has been filed, but which has not gone into effect.

I do not see the force or correctness of the suggestion that the Court en banc is simply "consultative" in character. I do not think that it can be so considered, in view of the conceded fact that it is the Supreme Court still, and that the vote of each Circuit Judge is as potent as that of any Justice. The Constitution provides that the decision of the Court so constituted shall be final and conclusive. It is impossible, in view of this declaration, to consider its conclusion as simply "consultative."

It is not at all certain but that, if timely application had been made to the Court of Appeals in the Pell v. Ball case, that Court would have certified the case to the Court of Errors upon the presence of the constitutional objections. What that case decides is that, where there has been no such application to the Court of Appeals and it has pronounced final judgment in the case, the losing party cannot,suo motu, docket the case as an appeal case in the Court of Errors. The proper course to pursue is plainly indicated in the following extract from the Pell v. Ball case:

"Upon the opening of a cause in one of the Courts of Appeals, the counsel concerned may move or suggest an order for sending the case to the Court of Errors, as plainly involving a constitutional question; but, if the suggestion be adopted, the order will be regarded as made on the Court's own motion. If the order be refused, then, on the hearing on the merits, counsel will be fully heard on any constitutional question which may appear to them to be involved in the cause, and consequently on the propriety of sending the case to the Court of Errors; and they will not be entitled to be heard a second time, if the point should be decided against them. If any constitutional question be not made at the principal hearing, parties ought not to be permitted to make it by an original application at any time after the judgment is rendered." *Page 350

The motion to strike the case from the docket was, therefore, granted upon two grounds: (1) That no application was made to refer the case to the Court of Errors, and no order made by the Court of Appeals to that effect; (2) that the matter of reference was not suggested until after final judgment by the Court of Appeals.

Neither of these conditions obtains in the present case, for the case on appeal is still in the bosom of the Court, and subject to its absolute control. I cannot believe that Chancellor Harper meant to declare that the Court of Appeals,after hearing argument upon a constitutional question involved,and considering it, could have, among themselves, decided against the contention of unconstitutionality, andfor that reason held that no constitutional question was involved. That is exactly the position taken in the order to which I object. I consider the parallelism complete between this application by the appellants, and an application to the Court of Appeals under the old practice, before a final decision by that Court, and that then, as now, there could be no question that a question of constitutional law was involved. In this case there is no application to be passed upon by the Supreme Court, as a Court; all that is required is a showing that the appeal which is now pending in the Supreme Court, in the opinion of the three Justices of this Court, involves a question of constitutional law, upon the determination of which the entire Court is not agreed. Of that I do not see how there can be a question.

It is suggested that the contrary conclusion would open the door of the Court en banc to all manner of fictitious claims of unconstitutionality, and greatly hinder the administration of justice. The reply to that suggestion is that under the old practice an order from the Court of Appeals was necessary to establish the presence of an issue of constitutional law, and under the present Constitution three Justices must certify to the presence of such issue. Under either system, the check upon the intrusion of fictitious *Page 351 constitutional issues, "pretexts," was and is complete. The extract quoted from the case of City of Florence v. Brown,49 S.C. 332; 26 S.E., 880; 27 S.E., 273: "We are not disposed to exercise the power vested in this Court, except where some grave question of public concern is involved" — must be interpreted in the light of the application made in that case for the convocation of the Court en banc. It is distinctly stated that no question of constitutional law was involved; nothing more than the construction of a Statute involving certain municipal powers. The application was addressed to the exercise of the Court's desire, under the second contingency above stated; and naturally the observation of the Court had reference to the exercise of the power vested in the Court, to convoke the Court at its pleasure. It could not have had reference to the mandate addressed to the Chief Justice when a constitutional question was raised. Besides, I have yet to learn that the infraction of the Constitution is not a "grave question of public concern." As is said by Chancellor Harper in Pell v. Ball, 1 Rich. Eq., 419, so copiously quoted from in the order:

"Constitutional questions were regarded by the Legislature as of great importance, and the decisions of them as affecting not only the party, but the public."

IV. What is considered a question of constitutional law, and the rule to govern the Courts in such an issue, is clearly stated in the case of Salinger v. U.S., 272 U.S. 542;47 S.Ct., 173; 71 L.Ed., 398 (decided November 23, 1926):

"The statutes which define and distribute federal appellate jurisdiction, and make the existence of a constitutional question the test of the right to a review, as also of the Court in which the review may be had, always have been construed as referring to a question having sufficient substance to deserve serious consideration, and not one which is so devoid of merit as to be fanciful or frivolous, or which is not open to discussion because settled by prior decisions *Page 352 [citing cases]. Under a different construction, the restrictions and distributing provisions in the statutes would have little purpose; for constitutional questions of no substance readily could be devised and presented as mere pretexts for obtaining a review on other questions [citing cases]."

That the question here involved, whether the Circuit Judge invaded the province of the jury in charging upon the facts, was one "having sufficient substance to deserve serious consideration, and not one which is so devoid of merit as to be fanciful or frivolous, or which is not open to discussion because settled by prior decisions," is demonstrated by the fact that it received, and I assume deserved, serious consideration at the hands of Justice Marion, who devoted one-sixth of his entire opinion, disposing of nearly 40 exceptions, to a consideration of it, in which he distinctly disapproved of the charge, though holding harmless the error.

I think, too, that it is sufficiently demonstrated that the objection is substantial, and not fanciful or frivolous, by the following observations:

The portion of the charge specifically complained of is this: "* * * the jury are instructed that, if they find the publication was libelous, the plaintiff would be entitled to substantial damages," which means, of course, that the jury must award such substantial damages, in that event. That this was an invasion of the rights and duty of the jury and an infringement of the constitutional inhibition, "Judges shall not charge juries in respect to matters of fact, * * *" I do not entertain a doubt. There are no less than five decisive reasons why the charge complained of was erroneous:

(1) In actions for libel, the award of damages is peculiarlywithin the province of the jury.

In 17 R.C.L., 429, it is said:

"The amount of damages recoverable is peculiarly within the province of the jury." *Page 353

"Though the law implies some damage from the utterance of words slanderous per se, the amount" of the damages "is for the jury." Smith v. Singles, 6 Pen. Del., 544; 72 A., 977.

In Holmes v. Jones, 147 N.Y., 59; 41 N.E., 409; 49 Am. St. Rep., 646, the Court said:

"But the amount of damages in an action for libel is peculiarlywithin the province of the jury. The jury may give nominal damages, or damages to a greater or less amount,as they shall determine."

To the same effect are Tracy v. Hacket, 19 Ind. App. 133;49 N.E. 185; 65 Am. St. Rep., 398. Hassett v. Carroll,85 Conn., 23; 81 A., 1013; Ann. Cas., 1913-A, 333.Hines v. Shumaker, 97 Miss., 669; 52 So., 705. ArizonaCo. v. Harris, 20 Ariz., 446; 181 P., 373. Hughes v. Samuels,179 Iowa, 1077; 159 N.W., 589; L.R.A., 1917-F, 1088. Shryock v. Calkins (C.C.A.), 248 F., 649. Gambrillv. Schooley, 93 Md., 48; 48 A., 730; 52 L.R.A., 87; 86 Am. St. Rep., 414; 13 A. E. Enc. L., 432. Marks v.Jacobs, 76 Ind., 216. Nolan v. Traber, 49 Md., 460; 33 Am. Rep., 277. Negley v. Farrow, 60 Md., 158; 45 Am.Rep., 715. Devaughn v. Heath, 37 Ala., 595. Coffman v.Publishing Co., 65 Wn., 1; 117 P., 596; Ann. Cas., 1913-B, 636.

(2) Even where the publication is admitted libelous andwithout mitigating circumstances, the jury is vested withthe power in its discretion to award only nominal damages.

"Following the general rule, the question whether plaintiff is entitled to nominal or substantial damages is ordinarily a question for the jury. It is within the province of the jury to allow nominal damages only, in the exercise of its discretion." 37 C.J., 116.

"In an action for libel, where specific allegations and proof as to damages are not made and offered, but the reliance [is] upon the mere publication of the libelous statement, the jury cannot be instructed to limit the amount of *Page 354 recovery to nominal damages, though they may in their discretiondo so." Starks v. Comer, 190 Ala., 245; 67 So., 440.

(3) The award of substantial damages must be basedupon the injury sustained by the plaintiff in his woundedfeelings, mental suffering, soiled reputation, or loweredstanding in the community. To charge that in a particularcase a plaintiff is entitled to substantial damages is to assumean issue of fact in this respect, which should be left to thejury.

In 17 R.C.L., 430, it is said:

"The following elements may be taken into consideration in assessing such damages: Injury to feelings, mental suffering, injury to character and reputation, and similar injuries incapable of definite money valuation; the nature of the imputation, including the time, manner, and language in which the charge was made, and the character, condition, and influence of the parties."

"Under an allegation of general damages only, the issue is: What damages has the plaintiff suffered generally in the community where he is known, by the publication of the defamatory matter? Id."

It is conceivable (and I have not the slightest purpose to intimate, even, that the plaintiff comes within such description) that the person libeled may be so devoid of character, so beggared in reputation, "none so low as to do him homage," that an injury to his character, reputation, or standing in the community is impossible. If, then, the damages are to be measured by the injury one has sustained in such character, reputation, or standing, to charge a jury that the plaintiff, in a particular instance, is, upon proof of the libel, entitled to substantial damages, is to assume that there has been an injury to such character, reputation, or standing — that he has sustained in the community a character or reputation susceptible of being injured to a substantial degree. *Page 355

"The defendant was liable for the natural consequences of the tort which it had committed. * * * Whether those were of a character to entitle the plaintiff to substantial damages, or only to nominal damages, was for the jury to decide, and they were, in effect, so instructed." Bishopv. Journal, 168 Mass. 327; 47 N.E., 119.

"There is no presumption as to general reputation or character, and requested charge that law presumes plaintiff, in action for slander, to be woman of good character, held properly refused." Tingle v. Worthington, 215 Ala., 700;110 So., 143.

In Astruc v. Star Co. (D.C.), 195 F., 349; affirmed by (C.C.A.), 204 F., 776, the plaintiff assigned error in the refusal of this request:

"The plaintiff is entitled to substantial damages, in view of the gravity of the libel, intending to hold him up to public ridicule and injure him in his occupation."

The Court held that there was no error in such refusal, for the reason that the amount of damages for a libel is peculiarly within the province of the jury, whose duty it is to consider all the circumstances under which the libel was published and the character and reputation of the plaintiff. The Court said:

"I prefer, however, to rest my conclusion on the broader ground that it would have been error to charge the jury that the plaintiff was entitled to substantial damages," — citing several cases and quoting the following from the case of Amory v. Vreeland, 125 App. Div., 850; 110 N Y S., 859:

"Many elements enter into an action for libel and slander, which are not present in other actions for personal wrongs. A man may be grossly libeled, and still his character and reputation may be such that he suffers no injury, or the circumstances under which the libel is published or the slander uttered [may] be such that no substantial damage ought to be given." *Page 356

In that case it was held:

"While the trial Judge, in an action for libel or slander, has the right to set aside a verdict of the jury for nominal damages, where the facts disclosed are such, that in his judgment substantial damages should have been awarded, still, in the first instance, the jury should not be instructed that they cannot give such verdict as they deem proper, even if it shall be one for nominal damages only."

(4) To charge that, upon proof of the libelous characterof the publication, the plaintiff was entitled to substantialdamages, amounted to an absolute elimination of all mitigatingcircumstances connected with the transaction.

It is not deemed necessary to repeat what I have said upon this subject in my dissenting opinion; but as a parting shot I cannot refrain from saying that never have I known of a more scathing and slanderous denunciation than was the unprovoked volcanic eruption of Mr. Duncan, delivered under strained "official and personal privilege" of the Senate, and admittedly based upon "atmospheric evidence."

"The poison of asps is under their lips, whose mouth is full of cursing and bitterness."

The cruel enormity of the admittedly baseless attack should have gone far, if not to the limit, in the mitigation of substantial damages, which consideration was not allowed, by the charge complained of, to enter the minds of the jury.

(5) To charge as complained of amounted to an absoluteelimination of the defense of qualified privilege.

Nor need I amplify what I have said in reference to this matter, further than to say that Mr. Duncan's letter had been written two years before his speech in the Senate. During that time, although Mr. Robertson felt keenly the embarrassment which it placed him in, he opened not his mouth. That the publication of the letter was provoked by the speech no one can doubt. He who deliberately brings on a quarrel receives little sympathy in his complaint *Page 357 that his adversary went further in retaliation than a powdered courtier would have gone.

There is a vast difference between an action for libel and an action for dishonoring a check. In the latter the Court has held that the plaintiff is entitled to "substantial, but temperate," damages, and it is sought to align actions for libel with such an action. In the case of a dishonored check, the law presumes "substantial, but temperate," damages. In an action for libel, the plaintiff must prove that his reputation, etc., have been injured.

Upon the merits of the appeal my views have already been elaborated. I still think that the judgment has crystallized an act of injustice to the defendants, and for that reason that the petition for a rehearing should be granted. I am firmly convinced that to deny the request, a righteousdemand, in my opinion, under the Constitution, for the convocation of the Court en banc, would be a denial of the constitutional rights of the defendants.