ON PETITION FOR REHEARING Denied August 23, 1940. The petition for rehearing herein has been given due and careful consideration, and it appears to the Court that all the questions raised on appeal have been considered and passed upon in our decision herein.
Counsel for appellants, in the petition, attempts to raise at this time a constitutional question, alleging that the powers and duties of the commission as prescribed by Article 9, Section 12 (evidently meaning Article 9, Section 14) of the State Constitution of 1895, are involved herein. Reference to said article and section shows clearly that the appeal does in no way involve the powers and duties granted therein, which merely sets out that the commission is established, "whose powers over all transporting and transmitting corporations, * * * shall be regulated by law." Inasmuch as this question is raised for the first time by the petition for rehearing, this Court is without authority to consider the same at this time (GranitevilleMfg. Co. v. Renew; 113 S.C. 171, 102 S.E., 18) but even if we should so consider it, we deem that there is no merit in it.
Counsel for appellants has seen fit to ask the Court 16, 17 to call the Court en banc, under the provisions of Article 5, Section 12, of the State Constitution of 1895, claiming that the question involved herein is one of great public importance, involving the safety and welfare of the entire people of the State. In this connection we call attention to what was said with reference to the petition for rehearing in the case of Duncan v. Record Publishing Company,145 S.C. 196, at page 317 et seq., 143 S.E., 31, 70, where the Court said: "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 *Page 455 given proper authority, no litigant has the privilege of claiming it; nor can it be granted when requested."
And also, at page 318 of 145 S.C. at page 71 of 143 S.E., where the Court said:
"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 ithas 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 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 en banc 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."
Also, it has been called to the attention of the Court that, after this case was argued on May 13, 1940, an Act was passed by the General Assembly of this State, which became law on approval by the Governor on May 28, 1940, wherein is provided that it shall be unlawful for any person or corporation operating a railroad service in this State to *Page 456 discontinue the operation of any passenger train, or substitute mixed service for regular passenger service, as was done in this instance, without first making application to, and securing the approval of, the South Carolina Public Service Commission. Therefore, except for its application to the particular case here involved, the question of whether or not a railroad company in this State has the right to substitute mixed service for regular passenger service has become academic, and can hardly arise again in this State.
The petition for rehearing is refused.
MR. CHIEF JUSTICE BONHAM, MR. JUSTICE BAKER and MR. ACTING ASSOCIATE JUSTICE J. STROM THURMOND concur.