When this case was heard by the Supreme Court, it was composed of five members — Mr. Justice Woods being one of them — but the opinion was not filed until he had resigned, for the purpose of accepting the office of United States Circuit Judge.
The decision was rendered by an evenly divided Court. *Page 98
The appellant's attorney, filed a petition for a rehearing on several grounds, the first of which is, that the Court was without power to render the decision, for the reason that it was then composed only of four members.
The following sections in the Constitution of 1895, together with the corresponding sections in the Constitution of 1868, are applicable to this question:
CONSTITUTION OF 1895. CONSTITUTION OF 1868.In construing the foregoing sections from the Constitution of 1868, in the case of Williams v. Bennett, 35 S.C. 150, the Court said:Section 2, Article V: Section 2, Article IV:
"The Supreme Court shall "The Supreme Court shall consist of a Chief Justice consist of a Chief Justice and and four Associate Justices, two Associate Justices, any any three of whom shall two of whom shall constitute constitute a quorum for the a quorum." * * * transaction of business." * * *
Section 6, Article V: Section 6, Article IV:
"No Judge shall preside at "No Judge shall preside on the trial of any cause in the the trial of any cause, in the event of which he may be event of which he may be interested, interested, or when either of or where either of the parties shall be connected the parties may be connected with him by affinity or consanguinity, with him, by affinity or consanguinity, within such degrees within such degrees as may be prescribed as may be prescribed by by law, or in which he may law, or in which he may have have been counsel or have been counsel, or have presided presided in any inferior in any inferior Court, Court. In case all or any of except by consent of all the the Justices of the Supreme parties. In case all or any Court shall be thus disqualified, of the Judges of the Supreme or be otherwise prevented Court, shall be thus disqualified from presiding in any from presiding in any cause or causes, the Court or cause or causes, the Court, or *Page 99 the Justices thereof shall certify the Judges thereof, shall certify the same to the Governor the same to the Governor of the State, and he of the State, and he shall immediately commission, shall immediately commission specially, the requisite specially, the requisite number of men learned in the number of men learned in the law for the trial and determination law, for the trial and determination thereof." * * * thereof." * * *
Section 12, Article V: Section 12, Article IV:
"In all cases decided by "In all cases decided by the the Supreme Court, the concurrence Supreme Court, a concurrence of three of the Justices of two of the Judges shall be necessary for a shall be necessary to a decision." reversal of the judgment below, subject to the provisions hereinafter prescribed." * * *
"It is contended, however, that there cannot be a constitutional quorum, without there is in existence the full number of members, provided for by the Constitution. If this proposition be true, as applied to the Supreme Court, we see no reason why it should not be true of every other body, of which a number less than the whole is legally declared to be a quorum; and we think we may safely venture to say, that such a proposition as to any other body, has never been accepted, and never could be accepted as correct, without paralyzing, to some extent at least, the arm of at least two of the great departments of the government. Such a proposition rests upon a fundamental misconception of the term `quorum,' and the purposes for which it is used. The very purpose in providing for the transaction of business of any given body or tribunal by a quorum, is to prevent the stoppage of the public business, when a portion of the whole *Page 100 membership may from any cause, fail to attend at the time appointed, and whether such failure results from death or some temporary cause, cannot affect the question. The mischief intended to be provided against, is the failure of the whole number to attend; and we do not see how it can possibly make any difference, whether such failure results from one cause or another."
Again, the Court said:
"The framers of the Constitution must be regarded as having contemplated the contingency, that at some time all of the members of the Supreme Court would not be in attendance, and, therefore, to provide for such a contingency, after declaring who should constitute the Supreme Court, they immediately afterwards, and in the same sentence, qualified this general declaration, by providing that any two of the constituent members of the Court should constitute a quorum, so that the Court might proceed with its business, just as if the Court were full. Any other view would, it seems to us, completely nullify the provision for a quorum. There is nothing whatever in the Constitution indicating an intention, that the provision for a quorum should only apply, in case of a temporary absence of one of the members of the Court; and, on the contrary, the language used is equally applicable, where the failure of such member to attend is occasioned by death, as where it results from some temporary cause. Such, as we have seen, is the accepted view in relation to the highest judicial tribunal in this country, where the language constituting it is practically identical with that, which we are called upon to construe, and such, so far as we are informed, is the universally accepted view in relation to all bodies, where provision is made for a quorum."
We desire to call special attention, to the further language of the Court, in that case, that, "from the very words of this section (section 6), it is very manifest that its purpose was,not to declare or provide anything in regard to the necessary *Page 101 elements, constituting the Supreme Court." (Italics added.) It will thus be seen, that section 6, art. V, of the present Constitution, was not intended to provide anything, with regard to the elements necessary to constitute the Supreme Court, for that had already been done in section 2; but its purpose was to prevent Judges, who are disqualified by reason of interest in the cause, or relationship to parties from presiding, and to provide the manner of filling their places, and the places of those who, for any other reason, may not be able to sit.
The case just mentioned is conclusive of the question under consideration, unless section 29, art. I, Constitution of 1895, requires us to adopt a different construction. That section is as follows: "The provisions of the Constitution shall be taken, deemed, and construed to be mandatory and prohibitory, and not merely directory, except where made directory or permissory by its own terms."
It is contended, that as the provisions of the Constitution must be deemed to be mandatory, the Supreme Court is without power to hear a cause or render a decision, when there is a vacancy caused by death, resignation or temporary disqualification, but that, before the Court can hear a cause or render a decision, it must certify the cause of disqualification to the Governor, and must postpone action until he has commissioned, specially, the requisite number of men, for the trial and determination of such causes.
Section 29, art. I, Constitution of 1895, however, must also be construed to be mandatory as to the provision in section 2, art. V, of the Constitution, that any three Justices of the Supreme Court, shall constitute a quorum for the transaction of business. It will thus be seen that section 29, art. I, of the Constitution, is not conclusive, of the question under consideration, and that we are, therefore, at liberty to resort to other canons of construction.
At the time the Constitution of 1895 was adopted section 6, art. IV, Constitution of 1868 (which is practically identical *Page 102 with section 6, art. V, Constitution of 1895), had already been construed, by the Supreme Court in Williams v. Benet,35 S.C. 150, and effect can be given to section 6, art. V, Constitution of 1895, by adopting the construction therein placed upon section 6, art. IV, Constitution of 1868. Whereas, if we adopt the construction for which the appellant's attorney contends, it would render null and void the provision, that any three Justices of the Supreme Court, shall constitute a quorum for the transaction of business.
There is another reason why the construction, for which the appellant's attorney contends, should not prevail, to wit: it would render section 6, art. V, of the Constitution, inconsistent with the provision in section 12, art. V, of the Constitution, that "in all cases decided by the Supreme Court the concurrence of three of the Justices shall be necessary for a reversal of the judgment below. * * *" It will be observed that the concurrence of three Justices, is only necessary for areversal of the judgment below.
The cases of Florence v. Berry, 62 S.C. 469, and Hutchinson v. Turner, 88 S.C. 318, show that it does not require three Justices to affirm a judgment, yet if the views of the appellant's attorney, should be accepted, it would be necessary for three Justices to concur in affirming, as well as in reversing, the judgment below. It will thus be seen, that if section 6, art. V, of the Constitution, should be given the force and effect for which the appellant's attorney contends, it would be inconsistent, not only with section 2, art. V. of the Constitution, but also with section 12, art. V, of the Constitution.
Such a construction would be violative of the rule announced in Beck v. Zorn, 48 S.C. 149, that "when two sections are inconsistent, effect will ordinarily be given to that section, which is in harmony with other provisions, rather than to that which is inconsistent, with more than one provision of the Constitution." *Page 103
The fact that section 6, of art. IV, Constitution of 1868, was incorporated in the Constitution of 1895, as section 6, art. V, after it had been construed in the manner hereinbefore stated, shows it was not intended that it should have the effect of rendering null and void section 2, which provides that three Justices, shall constitute a quorum for the transaction of business. The rule in such cases is thus stated in 8 Cyc. 739: "It is an established rule of construction, that where a constitutional provision has received a judicial construction, and it is afterwards incorporated in a new or revised Constitution, it will be presumed to have been retained with a knowledge of that construction, and Courts will be bound to adhere to it."
The next ground for a rehearing is that a decision can not be rendered by an evenly divided Court.
It is only necessary to refer to the following language from the case of Hutchinson v. Turner, 88 S.C. 318, to show that this ground is without merit.
"When the Constitution was adopted, it was therein provided, that the Supreme Court should consist of an even number of Justices. And, as this was unusual, the framers deemed it advisable, in order to prevent confusion, to state the effect of a decision, when the Justices were evenly divided in opinion, viz.: that the judgment below, should be affirmed. This was merely the adoption of the rule which would have prevailed, even without that provision, especially when there was the further provision, that, in all cases decided by the Supreme Court, the concurrence of three Justices was necessary, for a reversal of the judgment below.
"If the Constitution had failed to provide, that a less number than the five Justices composing the Court should constitute a quorum for the transaction of business, then the appellant would have ground for contending that a decision could not be rendered, when the Justices are equally divided in opinion, as it could not be foretold, whether the fifth *Page 104 Justice would concur with the two Justices in favor of a reversal, and thereby change the result.
"As any three Justices are sufficient to constitute a quorum for the transaction of the business, a decision may be rendered when the Court is composed of three members, two of whom favor affirming the judgment below, while the third is in favor of reversing it.
"The fact that a fourth Justice participates, does not change this result — the concurrence of three being necessary for a reversal."
As to the other grounds for rehearing, the Court is satisfied that no material question of law, or of fact, has either been overlooked or disregarded.
It is therefore ordered, that the petition be dismissed, and that the order heretofore granted staying the remittitur, be revoked.
MESSRS. JUSTICES HYDRICK and WATTS concur.