I cannot concur in the conclusion reached by the majority of the court, nor in the *475reasoning upon which it is founded; and considering the magnitude of the interests involved, and the importance of the .question presented, it is proper that I should give my reasons for this dissent.
The Code of Civil Procedure provides:—
“ Sec. 45. The chief justice, or any four justices, may convene the court in Bank at any time, and the chief justice shall be the presiding justice of the court when so convened. The presence of four justices shall be necessary to transact any business, and the concurrence of four justices present at the argument shall be necessary to pronounce a judgment in the court in Bank; provided, that if four justices so present do not concur in a judgment, then all the justices qualified to sit in the cause shall hear the argument; but to render a judgment, a concurrence of four justices shall be necessary; and every judgment of the court in Bank shall be final, except in cases in which no precious judgment has been rendered in one of the Departments, and in such cases the judgment of the court in Bank shall he "final, unless within thirty days after such judgment an order be made in writing, signed by five justices, granting a rehearing.”
It will be observed that this section provides, in direct and unequivocal terms, that the “judgment of the court in Bank shall be final, unless within thirty days after such judgment an order be made in writing, signed by five justices, granting a rehearing.”
The statute needs no construction. It cannot be misunderstood. If tit is a valid statutory provision, this court should respect it, and hold itself bound to comply with its requirements. But it is contended that it is invalid, and consequently not binding upon the court, for three reasons: 1. Because it is an attempt to interfere with and abridge the constitutional powers and jurisdiction of the court; 2. Because it attempts to limit ihe inherent powers of the court; 3. Because this court *476has uniformly held that it is not a valid enactment, and this construction of the statute has thereby become a part of the law of the state, and binding upon the court and litigants.
I shall consider these propositions in their order.
A complete answer to the first of these contentions is,, that this court has no constitutional jurisdiction or power to grant a rehearing where a cause is heard in Bank. The only provision of the constitution relating to rehearings is as follows: “The chief justice shall apportion the business of the Departments, and may, in his discretion, order any cause pending before the court to be heard and decided by the court in Bank. The order may be made before or after judgment pronounced by a Department; but where a cause has been allotted to one of the Departments, and a judgment pronounced thereon, the order must be made within thirty days after such judgment, and concurred in by two associate justices; and if so made, it shall have the effect to vacate and set aside the judgment. Any four justices may, either before or after judgment by a Department, order a case to be heard in Bank. If the order be not made within the time above limited, the judgment shall be final. No judgment by a Department shall become final until the expiration of the period of thirty days aforesaid, unless approved by the chief justice in writing, with the concurrence of two associate justices.” (Const., art. 6, sec. 2.)
The evident intention of this constitutional provision was to limit the right to grant rehearings to cases heard and decided in Department. This is apparent, not only from the fact that a rehearing is provided for in such cases only, but because it is provided that such judgments shall not be final until thirty days after their rendition, leaving it to be understood that all other judgments of the court shall be final from the time they are pronounced. But it is enough for the purposes of this *477case to say that the constitution does not confer upon the court the right to grant rehearings of cases decided in Bank. That it does not confer such power has been expressly decided in Hegard v. California Ins. Co., 72 Cal. 535, 540, in which it was said: “ The petition is denied for the reasons,—1. That an examination of the record shows no sufficient cause therefor; and 2. That the constitution does not provide for a rehearing of causes decided in Bank, and the statute (Code Civ. Proc., sec. 45) expressly provides that every judgment of the court in Bank shall be final, except in cases in which no previous judgment has been rendered in one of the Departments.”
The rules of this court are now, and always have been, consistent with the idea that rehearings can only be had in cases heard in Departments. They provide for the procedure in applications for rehearings in such cases, and none other. (Rule 30.)
Having thus demonstrated that the court has no constitutional authority to grant rehearings in this class of cases, I need not dwell further on this point. If such power were given by the constitution, and the provision of the code under consideration would have the effect to take away, limit, or abridge such jurisdiction, it would be invalid beyond any question. (Haight v. Gay, 8 Cal. 300.)
The case of State v. Noble, 21 N. E. Rep. 244, relied upon by the appellant, decides nothing more than this.
Whether it would have that effect or not will be considered hereafter.
This brings us to the second question: Has this court the inherent power to grant rehearings? and if so, can that power be limited, controlled, or regulated by the legislature?
Inherent power is defined to be “an authority possessed -without its being derived from another; a right, ability, or faculty of doing a thing without receiving *478that right, ability, or faculty from another.” (Bouvier’s Law Dict. 710.)
This court is as much a creature of the constitution and laws of the state as the lowest judicial tribunal in it. It cannot go beyond its constitutional jurisdiction, and that jurisdiction, as we have seen, is beyond the reach of the legislative department of the state government. But is this so of the inherent powers of the court?
If the inherent power resting in the court is 'one necessary to the preservation of its existence as a court or the performance of its constitutional duties and functions, it stands upon the same footing as the power expressly conferred by the constitution, and should be guarded against legislative encroachments for the same reason. If it is not of such a nature, in my judgment the power cannot stand as against an express statutory enactment. To that class of inherent powers which are necessary to the preservation and proper discharge of the duties of the court belongs the right to punish for contempt,— a power that is uniformly upheld and jealously guarded by the courts. It is held that the legislature cannot deprive the courts of this power, or materially limit or abridge it. But it will be found on an examination of the cases upholding this doctrine that the power is maintained on the ground that its exercise is necessary to the existence and preservation of the courts, and the proper discharge of their duties. (Niel v. State, 9 Ala. 259; States. Morrill, 16 Ala. 384; People v. Willson, 64 Ill. 195; 16 Am. Rep. 528; Ex parte Biggs, 64 N. C. 202; Clark v. People, 1 Breese, 340; Little v. State, 90 Ind. 338; 46 Am. Rep. 224.)
The power of a court to vacate its judgments properly rendered, and not affected by fraud or mistake, does not belong to this class, if we admit the existence of the right as one inherent in the court. That courts have the inherent power to vacate or set aside their judgments which have been procured by fraud or mistake, correct their *479records to make them speak the truth, prevent the abuse of their authority or process, and enforce obedience to their mandates, may be conceded. (Freeman on Judgments, secs. 99, 100.)
So they may, where jurisdiction is given them, but no procedure is presented by which such jurisdiction may be exercised, provide such procedure. (People v. Jordan, 65 Cal. 644.) But where a mode of procedure is provided by the legislature, this power is thereby taken away from the courts.
All of these rest upon the same principle precisely. They are permitted and exercised as powers necessary to the proper exercise of the jurisdiction expressly conferred upon the court.
I know of no authority or reason for the doctrine asserted in this case, that a court has the inherent and uncontrollable power to vacate and set aside its judgment, rendered in accordance with the law, and not tainted with fraud or mistake.
The ground, and the only ground, upon which the right is maintained, where the judgment is the result of fraud, mistake, or inadvertence is, that the judgment is not the judgment of the court. In such cases it is due to the court, as well as to the parties, that the pretended, or apparent, judgment be vacated. But this is not a rehearing in any proper sense. It is to relieve the party from a judgment rendered without a proper hearing, and is allowed because the injured party has no remedy by the ordinary course of appeal, or writ of error, no error appearing on the face of the record. (Freeman on Judgments, secs. 99, 100; Sanders v. Slate, 85 Ind. 318, 328; 44 Am. Rep. 29; Nealis v. Dicks, 72 Ind. 374.)
The reason for according to a court the right to vacate its judgments on this ground has no application to a case like this, where the cause has been fully and fairly heard and decided on its merits. In such a case there is no ground for equitable relief, a rehearing cannot be de*480manded as a right, and the court has no inherent power to vacate the judgment, except in the manner provided by the statute. (Nealis v. Dicks, 72 Ind. 374.)
But let us concede, for the purposes of this case, that the power exists without constitutional or statutory authority. The question remains, whether the statute is an infringement of the power. The statute contains three requirements: 1. Action must be taken in granting the rehearing within thirty days; 2. It must be by an order made in writing; and 3. Be signed by five justices. (Code Civ. Proc., sec. 45.) A part of this section may be valid, and the balance invalid. As to the first of these requirements,— that action must be taken within thirty days, — its validity has never been questioned, and this court has acted in conformity to it from the time of its enactment until the present day. I regard it as a proper and reasonable limitation on the power of the court, conceding that the power exists, and it has been so regarded and acted upon by the court.
As to the second requirement, it is eminently just and right that the action of the court should be put in some tangible form that will give evidence to the parties interested, and the public generally, that its duty has been properly and legally performed. A court of justice is not a star-chamber tribunal, that its action, or that of any one of its members, should be kept secret.
The third requirement is open to more serious question. If the court had been acting in the discharge of a duty imposed upon it by the constitution, a majority of the court would have the right to act. If so, it may be claimed with much more force that a statute requiring a greater number to concur in the action taken would be to limit and abridge the powers of the court, and if this-statute related to such an exercise of jurisdiction, it would be unconstitutional for that reason. A statute of the state of New Jersey provided that no judgment of the supreme court should be reversed *481unless a majority of those members of the court of errors and appeals who were competent to sit on the hearing and decision of the case should concur in such reversal. This statute, which went directly to the jurisdiction and power of the court to render a judgment, and allowed a judgment to be rendered by less than a majority of the court, but denied it to the majority in certain cases, was held to be unconstitutional. But even in so strong a case the decision was by a bare majority, the court standing seven to six. (Clapp v. Ely, 27 N. J. L. 622.) The reason for this rule is thus stated: “ And as a court must act as an organized body of judges, and where differences of opinion arise, they can only decide by majorities, it has been held that it would not be in the power of the legislature to provide that, in certain contingencies, the opinion of a majority of a court, vested with power by the constitution, should prevail so that the decision of the court in such cases should be rendered against the judgment of its members.” (Cooley on Constitutional Limitations, 5th ed., 115.)
But as the action taken on the motion was not in pursuance of any constitutional authority vested in the court, and was not necessary to the proper discharge of its constitutional duties, I am of the opinion that the legislature had the power to say that more than a bare majority of its members should be necessary to set aside its judgment duly rendered by a constitutional majority of the members competent to sit in the case.
The supreme court of the United States exercises the right to grant rehearings, but ordinarily a rehearing is never granted in that court unless it is moved for by a justice who concurred in the decision, and not then, except by a majority of the court. If not so moved for, it is denied as of course. (Brown v. Aspden, 14 How. 25; Public Schools v. Walker, 9 Wall. 603; Ambler v. Whipple, 23 Wall. 281.)
With respect to the requirement of the statute that *482the order for a rehearing shall be made in writing and signed by the justices voting in favor of it, there can, in my judgment, be no question as to its validity and binding force. It neither takes away nor abridges the jurisdiction of the court, but provides for the procedure, and determines what shall be sufficient evidence that the rehearing has been granted. If the legislature cannot require this, it has no power to say to a superior court that its judgments shall be in writing and entered of record; that it shall make its findings of facts and conclusions of law in writing; that it shall charge a jury in writing, or in any other way control the manner in which it shall act or the mode of its procedure. It cannot say that the verdict of a jury shall be in writing, signed by its foreman, or otherwise provide for the conduct of a case. The right of the legislature to control and provide for the procedure of the courts, in respect even to their inherent powers, as in the matter of contempt, has always been recognized by this court, and by the courts of other states. (Warner v. Hall, 1 Cal. 90; Sacramento etc. R. R. Co. v. Harland, 24 Cal. 336; Ex parte Harker, 49 Cal. 466; Fabretti v. Superior Court, 77 Cal. 305; Bachelder v. Moore, 42 Cal. 414; 44 Cal. 478; Johnson v. Superior Court, 63 Cal. 578; Ex parte Henshaw, 73 Cal. 486, 496.) But the legislature cannot take away the power to punish for contempt, or declare that any act which amounts to a contempt shall not be punished as such. (Little v. State, 90 Ind. 338; Hahnan v. State, 105 Ind. 515.)
In Ex parte Harker, supra, this court said: “The powers of the district court, whether sitting in equity or at law, to arrest a defendant on a civil action, are defined by the code, and the writ by which and the proceedings upon which such an arrest is to be effected are therein prescribed, and the writ of ne exeat is not one. Nor is there any force in the suggestion made at bar that it was not competent to the legislature to *483abolish the writ, because jurisdiction in equity cases is conferred upon the district courts by the constitution. Jurisdiction is also conferred by the constitution upon those courts in certain cases at law; but it is apparent, in equity no less than at law, that the mere procedure by which jurisdiction is to. be exercised may be prescribed by the legislature, unless, indeed, such regulation should be found to substantially impair the constitutional powers of the courts, or practically defeat their exercise.”
There can be no pretense that the provisions of the statute under consideration could “ substantially impair the constitutional powers of the courts, or practically defeat their exercise.”
“The filing of a petition for a rehearing is not a matter of right. It is a privilege given by the court, governed and limited entirely by its rules. The power to make these rules is given and controlled by the statute. The court, equally with the suitor, is bound by them until they are abrogated. We must construe them as statutory provisions would be construed.” (Hanson v. McCue, 43 Cal. 178.) But as I have observed, there are no rules of the court affecting or authorizing petitions for rehearings in cases decided by the court in Bank, and if there were, such rules must conform to and would be controlled by the statute. (Code Civ. Proc., sec. 129; People v. McClellan, 31 Cal. 101.)
As to the wisdom of these restrictions upon the power of the court, there should be no two opinions. The liberality of the court in granting rehearings needs some check, and while the court has, with a sincere and conscientious desire to do justice to litigants, added largely to its labors by hearing cases more than once, I am of the opinion that it would be much better for the court and litigants if the right to a rehearing were denied in all cases decided in Bank, where the cause had been fully and fairly heard on its merits. The wisdom of this *484statutory provision, and the expediency of a too liberal exercise of the power to grant rehearings, are fully exemplified in the proceedings in this case and their results. When the case was submitted on oral argument, the court consisted of six members, who alone were competent to participate in a decision. The cause was affirmed, the court standing four to two. In the mean time a newly appointed justice had become a member of the court. He was incompetent to participate in the decision of the case, although a member of the court at the time the decision was rendered, because of the fact that he was not present at the argument. (Const., art. 6, sec. 2.) His competency to act upon a petition for a rehearing is a matter of serious question. But conceding his competency, he did not hear the argument. The petition for a rehearing must, under the practice of this court, be heard ex parte. The respondent could not be heard, and need not be notified of the application. As to a part of the court, therefore, the judgment was vacated and set aside without any opportunity given him to be heard, and, in my judgment, in a manner not authorized by law. The positive hardship, not to say injustice, of such a proceeding must be apparent. The judgment having been set aside, a rehearing was had, and the cause was reversed, the court standing four to three. So that so far as mere numbers.was concerned the decision was weaker than before, there being the same number in favor of the conclusion reached and a greater number dissenting than on the former hearing.
But they say that all this may be so; but this court has always acted to the contrary, and has twice decided this statute to be invalid. So far as the past conduct of the court is concerned, it could not repeal a valid statute by disregarding it; and as to the decisions referred to, they do not decide th'at the statute is invalid. They simply overrule motions made to set aside orders made granting rehearings. On what grounds we are not informed. It is *485not held that the court is not bound by the statute. If the statute was unconstitutional, the point should have been decided, in order to bind the court in the future. Perhaps the court decided the motions on the same ground that is urged now, viz., that as the court had uniformly acted upon the theory that the statute was invalid, that therefore it was invalid. If so, I think the court should not hesitate to overrule those cases; but as they neither lay down a rule of law nor attempt to pass upon the construction of the statute or declare its invalidity, there would seem to be no necessity for overruling them. The only case in which this statute has been even mentioned by the court has recognized the validity of the statute, and left the question, whether the court has the inherent power to grant a rehearing, an open one. (Hegard v. Cal. Ins. Co., 72 Cal. 535.)
The case of Houston v. Williams, 13 Cal. 24, is greatly relied upon by the appellant, but that case, when properly understood, has no bearing on the question presented here. There the statute directly affected the constitutional power and jurisdiction of the court by providing the manner in which its decisions should be rendered. But as I have shown, the act attempted to be regulated by the statue under consideration does not affect any right given or duty imposed upon the court by the constitution, or any act necessary to the performance of its constitutional duties or functions. The act to which the statute relates, not being a constitutional one, might not only be regulated by the legislature, but might be entirely taken away. The constitution of this state gives all legislative power not denied to the legislature, while that of the United States gives only such as are named. (Const., art. 6, sec. 1; Baker v. City of Cincinnati, 11 Ohio St. 534, 542.) Therefore, as a general rule, to hold a law unconstitutional, it must appear to be a plain violation of some provision contained in the constitution of this state or *486In the constitution of the United States. (Const., art. 6, sec. 1; Hager v. Board of Supervisors, 47 Cal. 222; Baker v. City of Cincinnati, 11 Ohio St. 534, 542; Braddee v. Brownfield, 2 Watts & S. 271; Beauchamp v. State, 6 Blackf. 299; Doe v. Douglass, 8 Blackf. 10; People v. Galagher, 4 Hill, 244.) There may be exceptions to this rule, but in my opinion this case does not present one of them.
Where a court is exercising a jurisdiction conferred upon it by statutory enactment, and not by the constitution, its powers are limited by the statute by virtue of which it acts, and its powers thus conferred are subject to be limited or entirely taken away by the legislature. (United States v. Knight, 1 Black, 488.)
So it is uniformly held that the legislature of the states have full power and control over the jurisdictions of the courts so long as the statutes enacted for that purpose do not conflict with the constitution. (Ex parte Logan Branch Bank, 1 Ohio St. 433.)
The only authority given this court to grant a rehearing of a case decided in Bank is conferred by the section of the code under consideration, and the court snould be bound by its limitations and restrictions.
The distribution of the powers of the government into three departments—legislative, executive, and judicial— does not place either department above the law, nor make either independent of the other. (McCauley v. Brooks, 16 Cal. 10-39.)
In the case cited, Mr. Justice Field, speaking for the court, said: “The fourth article of the constitution is as follows: ‘The powers of the government of the state of California shall be divided into three separate departments,— the legislative, the executive, and judicial; and no person charged with the exercise of powers properly belonging to one of these departments shall exercise any functions appertaining to either of the others, *487except in cases hereafter expressly directed or permitted.’ There is nothing in this distribution of powers which places either department above the law, or makes either independent of the other. It simply provides that there shall be separate departments, and it is only in a restricted sense that they are independent of each other. There is no such thing as absolute independence. Where discretion is vested in terms, or necessarily implied from the nature of the duties to be performed, they are independent of each other, but in no other case. Where discretion exists, the power of each is absolute; but there is no discretion where rights have vested under the constitution or by existing laws. The legislature can pass such laws as it may judge expedient, subject only to the prohibitions of the constitution. If it oversteps those limits, and attempts to impair the obligation of contracts, or to pass ex post facto laws, or grant special acts of incorporation for other than municipal purposes, the judiciary will set aside its legislation, and, protect the rights of the assailed. Within certain limits, it is independent; when it passes over those limits, its power for good or ill is gone. The duty of the judiciary is to pronounce upon the validity of the laws passed by the legislature, to construe their language, and enforce the rights acquired thereunder. Its judgment in those matters can only be controlled by its intelligence and conscience. From the nature of its duties, its action must be free from coercion. But it is not independent of the legislature in numerous matters materially affecting its action and usefulness. The legislature fixes the places of its sessions, determines the number of its terms; and in the regulation of proceedings in civil and criminal cases, provides the manner in which suits shall be brought, prosecutions conducted, appeals taken, and all the vast machinery by which rights are asserted and wrongs redressed. In all these matters, with certain limited objections, the judiciary is a dependent department.” (10 Cal. 39, 40.)
*488It is as much the duty of this court to respect and protect the powers of the other departments of government as it is to uphold its own, and care should be taken that under the guise of protecting the powers of the judiciary we do not trample those of the legislative department under foot.
It is right and proper that the courts should maintain and uphold their independence arid freedom as a coordinate branch of the state government; but this can best be done, and the independence and usefulness of the judiciary more securely established and preserved, by a fair and liberal construction of laws enacted for its guidance, and by upholding and protecting the constitutional powers of the other departments of state while maintaining its own.
Here is a statute, plain, unambiguous, and reasonable in its terms, that takes away none of the constitutional or inherent powers of the court, that tends to the stability of its decisions, that is calculated to prevent prolonged litigation, and places no improper restraints upon the court. I know of no reason why the statute should not be upheld and enforced. The most material part of it, and that which the court might' with the greatest reason have looked upon with disfavor as a limitation of its powers, viz., that five members of the court should concur in order to grant a rehearing, and that action should be taken within thirty days, have been acted upon as valid. Why should not the other requirements ?
The whole of the reasoning in the prevailing opinion is outside of the real question presented. It goes to prove that the provision of the statute that five justices must concur in order to grant a rehearing is unconstitutional. There is no such question in the case. Five justices did vote in favor of the rehearing. If they had not, the rehearing would have been denied. The uniform practice of the court has upheld the validity of this provision of the statute and rehearings have been denied, although a majority of the court voted for them. If the
*489prevailing opinion is right on this point, the court has been wrong from' the time the new constitution took effect until the present day. It was hardly necessary to go outside of the case to put the court in antagonism with itself by an attempt to show that it has been violating its constitutional duty, and upholding a statute that is unconstitutional for the past ten years, especially in an opinion the main force of which is based upon the practice of the court against the validity of another provision of the same statute.
The real question in the case, viz., whether the order granting a rehearing shall be in writing and signed, seems to have been overlooked in the zeal of an attempt to prove the court to have been wrong on a point not now before us.
I think the motion should be granted.
A petition by the respondent for a second rehearing in Bank was denied.