On Petition for Rehearing.
Per Curiam:The judgment of affirmance on this appeal was rendered at a time when there was a vacancy on this bench occasioned by the resignation of Mr. Justice Helm. Counsel for appellant contend that such judgment of affirmance is illegal for want of jurisdiction in the court to render the same. Such contention is based solely upon the following provision of article 6 of the constitution*:
“ Sec 5. The supreme court shall consist of three judges, a majority of whom shall be necessary to form a quorum or pronounce a decision.”
The argument of counsel is to the effect, that the supreme court is not legally constituted, and cannot transact business as a court, unless there be three judges actually in commission, though it is conceded that a majority of the three — that is, two judges concurring — rmay pronounce a decision.
This reasoning, though plausible, is faulty in that it leaves out of consideration certain very important words of the section above quoted. The idea is very clearly expressed not only that two judges may “ pronounce a decision,” but that no more than two judges are necessary to “form a quorum ” of the supreme court.
The word quorum, now in common use, is from the Latin. It was anciently used in the commissions by which the king of Great Britain designated certain justices, “jointly and severally to keep the peace, and any two or more of them to inquire of and determine felonies and other misdemeanors, *24in which number some particular justices, or one of them, are directed to be always included and no business to be done without their presence.” The persons so designated as essential to the transaction of business were called “ justices of the quorum.” Hence, the term quorum has come to signify, “ such a number of the officers or members of any body as is competent by law or constitution to transact business.” 1 Blackstone, 351; Webster’s and Worcester’s Dictionaries.
For example, our constitution provides: “ The senate shall consist of twenty-six, and the house of representatives of forty-nine, members; ” and, again, “ A majority of each house shall constitute a quorum, but a smaller number may adjourn from day to day and compel the attendance of absent members.” Art. 5, §§ 11 and 46.
Here we have the same language, “shall consist,” as in section 5 of the judiciary article under consideration. Gan it for a moment be supposed that, if a vacancy should occur in the senate or in the house of representatives by the death or resignation of a member during the legislative session, the general assembly or either house thereof would no longer be legally constituted for the transaction of business? Such vacancies are of common occurrence; and yet such legislative bodies, so long as they have a quorum in attendance, proceed regularly with the transaction of business.
Section 5 of the schedule of the constitution provides:
“ Whenever any two of the judges of the supreme court of the state, elected or appointed under the provisions of this constitution, shall have qualified in their office, the causes theretofore pending in the supreme court of the territory, and the papers, records and proceedings of said court, and the seal and other property pertaining thereto, shall pass into the jurisdiction and possession of the supreme court of the state,” etc.
Here we have a contemporaneous construction of the constitution, indicating clearly that while it is declared that the supreme court shall consist of three judges, yet, that when *25two judges of the supreme court have qualified in their office the supreme court is duly constituted and competent to exercise jurisdiction as such court over the causes pending therein.
The Revised Statutes of the United States contain the following provision from the act of congress of April 10, 1889, viz.:
“ Sec. 673. The supreme court of the United States shall consist of a chief justice of the United States and eight associate justices, any six of whom shall constitute a quorum.”
This language is identical in substance with section 5 of article 6 of our Constitution. Hence, if the construction contended for by appellants be correct, then the United States supreme court can never transact any business during a vacancy occasioned by the death or resignation of any one of the nine judges provided for by the act constituting said court. It is a matter of common information that numerous vacancies have occurred in that body during the last quarter of a century, and such vacancies have continued for months at a time, and, yet, during the period of such vacancies the court has gone on exercising its full jurisdiction in the decision of pending causes.
A vacancy is liable to occur at any time in this court. Such vacancy may continue weeks or even months, as during the present term, for the reason that the governor may not be able to induce a suitable person to accept the office “ until the next general election,” as provided by the constitution. The consequences might be very serious if the court were to be held practically disorganized or incapacitated from transacting business during such vacancy. Fortunately, there seems to be no good reason for arriving at such conclusion. Counsel for appellants have cited no authority sustaining the position which they have assumed. Nevertheless, in a matter so important as a challenge to the jurisdiction of this court (now that the court consists of the maximum number of judges), we have deemed it proper to consider the question of jurisdiction thus presented and ren*26der a written opinion thereon. Our conclusion is that the supreme court of this state is duly organized and competent to exercise jurisdiction as such court so long as two judges of said court are duly qualified in their office.
The other grounds upon which the petition for rehearing is urged require no additional opinion. The petition for rehearing is denied, all the justices concurring.
Rehearing denied.