dissenting:
This case was submitted and argued en banc.
The constitution provides that the court shall consist of seven judges. By the term “Court en banc” is meant the whole court as constituted. The decision purporting to reverse the judgment is but by three members of the court-in agreement with it. It is therefore by a minority of the court as constituted.
The proposition is so unexampled, so shocking, and to my mind, so wholly opposed to the letter and spirit of the constitution and statutes, that I am compelled to regard it as a repudiation of the organic law and the statutes enacted under it, and fraught with the gravest dangers to constitutional government.
1. It may be stated as a universal rule of law, that the question as to the number of judges required to be present and necessary to authorize the legal transaction of business by a court is to be determined from the constitutional or statutory provisions creating and regulating the courts. And, further, that in the absence of a quorum of the number of judges required, by law to hold court, a judgment rendered by the remaining judges would be regarded as a nullity, because in such case there would be no authority in the court to render the judgment. 7 R. C. L. 998.
In the absence of constitutional or statutory provision on the subject, a majority of the court would constitute a quorum. Our constitution and statutes are silent upon the subject as to what number of judges shall constitute a quorum.
2. Section 1523 Mills Statutes, 1912, provides: “If there shall not be a quorum of the justices of the Supreme Court present on the first day of any term, the court shall be and stand adjourned from day to day until a quorum shall attend; and said court may, there being a quorum present, adjourn to any day specified, as may be deemed advisable.”
*508It will be seen that by this statute less than four judges are prohibited from holding court. They are even prohibited from adjourning the court without a quorum. And yet it is held in this case that three of the judges may pronounce a judgment of the court en banc, reversing nisi prius decision.
3. There are further limitations placed on the number of judges required to agree to the pronouncement of judgments by the Supreme Court. By section 2127, Mills Statutes, 1912, it is provided: “No punishment shall be inflicted in any case brought before the Supreme Court under the provisions of this chapter, unless a majority of the justices of said court concur in respect to such punishment.”
4. Article VI, sec. 5, of the constitution of Colorado provides: “The Supreme Court shall consist of seven judges, who may sit en banc or in two or more departments as the court may, from time to time, determine. In case said court shall sit in departments each of said departments shall have the full power and authority of said court in,the determination of causes, the issuing of writs and the exercise of all powers authorized by this constitution, of provided by law, subject to the general control of the court sitting en banc, and such rules and regulations as the court may make but no decision of any department shall' become the judgment of the court unless concurred in by at least three judges, and no case involving a construction of the constitution of the state or of the United States, shall be decided except by the court en banc.”
It will be here seen that a department of the court is expressly prohibited from rendering any decision involving a construction of the constitution of the state or the United States. It will not be contended that a decision of the case at bar does not involve a construction of the state constitution.
By this provision the court may consist of two, or, because of the limited number of judges, not more than three departments. If of two departments, then of four *509judges each. Still a department is expressly prohibited from considering, to say nothing of determining, any case involving a construction of the constitution. If a department consisting of four judges may not even consider such a question, by what process of reasoning can we say that if three judges are sitting en banc, they may determine such a cause? Can it be said that in the enactment of their organic law, the people even intended such an absurdity?
Under the present organization of the court three members constitute a department with power to determine all questions of less importance than a construction of the constitution, yet this may not be done in any case without the concurrence of all the judges constituting the department.
If it, was the intent and purpose of the makers of the constitution to permit three judges of the court to determine a constitutional question while sitting en banc, why is there such express prohibition of three judges sitting in department considering the question at all?
The conclusion of the majority would be precisely the same if our court consisted of nine judges, instead of seven. Five would constitute a quorum and three would be a majority of the quorum, and therefore the three of the nine judges would have the power to determine a constitutional question, while if the same three were sitting in department they are expressly denied the right to consider the question at all. Not only this, but the three who have assumed to construe the organic law in this case are at the same time denied the power to even open or adjourn court en banc. To my mind this not only trifles with the constitution but defies the plain import and purpose of that charter of the people’s rights.
It is said, that a majority of the court constitute a quorum, and therefore that a majority of this quorum may determine a cause. There is no suggestion in either the constitution or statutes that supports such a conclusion.
But the very spirit of the contention is negatived by the provision of our constitution as relates to legislative acts. *510A majority or a quorum of either house of the legislature may sit and transact business, but it is provided by sec. 22 of Article V of the constitution that “no bill shall become a law except by a vote of a majority of all the members elected to each house.” Not only a majority present’ are necessary, but a majority of those elected.
Can it be assumed that the makers of the constitution ever contemplated that less than a majority of their highest couid; should construe the provisions of that instrument. The people of this state have shown great concern in the matter of court construction of their constitution. They have not only denied this power to a department of this court, but by another constitutional amendment, they have likewise denied such power to the District Court, a constitutional court of original and general jurisdiction, even in the first instance, a power which had theretofore been universally exercised.
5. Section 438 of the Civil Code also provides; “Whenever the Supreme Court shall be equally divided in opinion, on hearing an appeal or writ of error, the judgment of the court below shall stand affirmed.”
Here is an express provision of the law which may not be overlooked. This provides that when the court shall be equally divided, the judgment of the lower court must be affirmed. This provision was applicable and enacted when the court consisted of three judges. It is equally applicable now when the court consists of seven judges. Both then and now the court consisted of an odd number of judges, and hence the court could not then and cannot now, be equally divided in opinion if all judges participate.
It can have no other meaning than that one-half of the largest even number of judges which may sit, one-half of six, to-wit, three, cannot reverse a decision of the lower court, and that in such case and where six judges sit, the judgment stands affirmed by operation of the statute alone.
Hence, if there were six judges sitting in the present case, three have not the power to affirm or reverse the judgment. The judgment is affirmed by operation of law alone. *511It cannot be reversed by the votes of three judges. This for the reason that the constituted court nor a majority thereof has not voted for a decision, and therefore it has failed of a court decision, and there can be no decision in such a case except the decision of the law as provided by the statute.
So in this case, if one additional judge had participated, and had joined the two others in dissent from the proposed majority opinion, then and in that case the decision of the lower court must have been affirmed.
Thus by one additional dissent, and with no more than the three voting in the affirmative, the decision would have been changed from reversal to affirmance. • The logic of the. majority, then, is that with the two judges only dissenting, the judgment may be reversed, whereas, if three had dissented, the judgment must be affirmed. This presents a strange anomaly in judicial logic. When we reflect that not less than three judges in agreement can pronounce a decision, and then only in department, and this by the express mandate of the constitution, the unsoundness of the proposition that three judges, sitting en banc may pronounce a decision, without any authority under the constitution of statutes, become apparent.
6. Our first constitutional convention submitted as a part of the proposed constitution the following, being adopted as section 5 of Article VI: “The Supreme Court shall consist of three judges a majority of whom shall be necessary to form a quorum, or pronounce a decision.” Thus by express constitutional mandate a majority of the court was required to pronounce a decision. This remained a part of the fundamental law until the amendment of 1903, increasing the number of judges, it being omitted from the draft. It cannot be assumed that it was the purpose of the omission to change this fundamental policy, and to intend that a minority of the judges should pronounce a judgment of the court sitting en banc, else the amendment would have been so declared. The only reasonable assumption is that this question was deemed to be otherwise suffi*512ciently covered in the draft. To hold that it was the purpose to so revolutionize the law upon this grave subject, without even a suggestion concerning it, is to insult the intelligence of the general assembly submitting the amendment.
But the majority finding no authority under the constitution or statutes of this state, in support of their astounding conclusion, cite authorities from other states upon which they seek to rely.
7. The case of Commonwealth v. Mathues, 210 Pa. 372, 59 Atl. 961. This case was in review of an action in mandamus to compel the State Treasurer to pay salaries of judges fixed by the legislature, including judges of the Supreme Court.
The court consisted of seven judges. All but one was financially interested in the result. The one judge assumed to and did pronounce the decision of the court. He cites no authority for his unprecedented and arbitrary act. He does not even refer to the constitution or statutes of his state, from which he must have derived his authority, if he had any. It is a fitting case to cite in support of the remarkable action of this court in this case. It finds no support in the constitution or statutes of Pennsylvania, nor in common sense. The action of the single judge in assuming to render a decision for a court composed of seven judges is so unreasonable as to make it stand out in our jurisprudence as a monstrosity. Indeed it must be said that in the history of judicial decisions, it partakes of the characteristics of the Irishman’s mule, in that it can have no-pride of ancestry, nor hope of posterity.
8. In the case of State v. Lane, 26 N. C. 434, cited in the majority opinion, the Supreme Court of that State consisted of three judges. One of these'had died, and the remaining two determined the cause. It was contended that a majority of the judges were without power to so hear and determine. This contention was denied and it was held that a majority of the court could pronounce a decision. It was there said: “Therefore, when the statute is silent *513as to what number of the judges'shall unite in the judgment, a majority may give it; and, in like manner, when it is silent as to the number of judges who shall unite in consultation, a majority must suffice.”
This is precisely my view in this case, that is to say, when the Supreme Court sits en banc, it requires a majority of the judges of the court in agreement, to pronounce a decision.
9. The majority cite Oakley v. Aspinwall, 3 N. Y. 547, as in support of their position. The Court of Appeals of New York, by constitutional provision, consisted of eight judges. In the case considered, seven of such judges participated. Five of these, or a majority of the entire court voted for reversal, of a cause pending while two of the seven judges dissented. At the commencement of the hearing, one of the five judges so afterward voting for reversal, suggested that he was related in a remote degree to one of the parties, and offered to leave the bench. All parties to the action objected to this and urged him to participate in the decision, which' he did. Subsequently, the defendant in error filed a motion to set aside the judgment of reversal upon the ground that the one judge was disqualified to sit because of his kinship to one of the parties, such judge having voted as one of the five judges. That motion was heard by the remaining six judges.
The majority opinion upon this motion severely criticises counsel for their conduct in consenting and urging the judge to sit, and afterward presenting the motion to set aside the judgment, because of his participation in the judgment, adverse to them. This motion to grant a rehearing, however, was sustained, the court holding that the disqualification could not be waived, by a vote of four to two of the judges of the six judges participating.
It is plain that the motion for a rehearing was based solely upon the disqualification of the judge who was one of the . five constituting the majority of the court who voted for a reversal of the case in the first instance, and the inference is clear that the motion was based upon the fact *514that with the elimination of the disqualified judge, there were but four judges remaining who had voted for the decision, or less than a majority of the court as constituted.
It is true that but four of the judges voted to sustain the motion for a rehearing, but this was a matter of procedure, and not a final judgment or decree of the court. And it is also plain that this was done under a statute of the state declaring that six members of the court should constitute a quorum. Our constitution and statutes are silent upon the question of the number of the judges that shall constitute a quorum of the Supreme Court.
Nowhere in any of the several opinions written in that case is it even hinted that less than a majority of the judges of that court may pronounce a judgment of the court in any cause pending.
10. The other case cited by the majority is what is known as the Telephone Cases, occupying Vol. 126, U. S. Supreme Court Reports, 126 U. S., 31 L. Ed. 863, 8 Sup. Ct. 778. Nowhere in these cases is the question we are considering suggested or determined. We have before us the simple facts only, that the Supreme Court of the United States consists of nine judges. Two did not participate. Four joined in the majority opinion, and three joined in the dissenting opinion. So that the prevailing opinion had the support of but four judges of the court, which is not a majority of the nine justices. Why this opinion was permitted to become the opinion of the court must remain to us purely a matter of conjecture, for the matter was not discussed in that case, and so far as I know, in any other. But as said in the beginning, the question of how many judges of a court may transact business or pronounce judgment is controlled by the particular constitution and statutes.
The constitution and statutes of the United States are very different from those of the State of Colorado in this respect. The number of judges which shall constitute the Supreme Court of the United States is not controlled by the Federal constitution. It is a matter wholly with Con*515gress, as are all other matters of organization and control, not left to the court itself. At the time the telephone cases were decided, there was a Federal statute which provided that six of the nine members should constitute a quorum, sec. 573, Rev. Stats. 1878. It may have been that either by act of Congress directly, or by permitted rule of the Supreme Court at that time, a majority of the statutory quorum was authorized to pronounce a judgment. In any event it was a question of statutory power. The decision throws no light one Avay or the other upon the question here.
It is plain that no respectable authority cited supports or tends to support the conclusion of the majority.
11. But that conclusion is based upon the mistaken assumption that the two non-participating judges are disqualified to participate in the case.
It is true that Mr. Justice Denison heard and determined the case in the lower court, but this is not a disqualification under our law. It must be assumed that he would not have-heard the case below if he had in any sense been disqualified.
Why Mr. Justice Allen declines to participate I am not advised, but I know of no disqualification.
It is natural and proper that a judge who has presided at a nisi prius trial should be reluctant to participate in the hearing on review, and does not do so as a rule where there is a sufficient number of judges otherwise, to pronounce an opinion and justice may be done.
12. In the case of D. C. I. & W. Co. v. Middaugh, 12 Colo. 434, 21 Pac. 565, 13 Am. St. 234, it was said by Mr. Justice Elliott: “Having presided at the trial of this case in the District Court, it has been with great reluctance that I have consented to participate in the review of it in this court. But the circumstances attending the case in this court have been peculiar. The honorable commissioners first considered the case and reported a unanimous opinion affirming the judgment, though upon grounds somewhat different than those announced in this opinion. Upon my *516accession to the bench, finding the judges divided in opinion in respect to the case, I waited for my Brother Hayt to qualify, hoping he and Chief Justice Helm would be able to decide the case without my intervention. But after patient consideration, they, being unable to agree, have insisted that it is my duty to sit in the case, else the decision might be deferred to the close of my term.” It will be noticed that it was the view of the entire court that he should so participate in that case.
See also Edwards et al. v. D. & R. G. R. Co., 13 Colo. 59, 21 Pac. 1011; Bank v. Hummel, 14 Colo. 276, 23 Pac. 986, 8 L. R. A. 788; McClure v. Smith, 14 Colo. 297, 23 Pac. 786; Boettcher v. Colo. Nat. Bank, 15 Colo. 23, 24 Pac. 582.
13. In the case of O’Connor v. Smithers, 45 Colo. 23, 99 Pac. 46, the facts as stated by the court were: “When these cases were presented to this court they were heard by four of the justices. Justices Helm, Goddard and Maxwell did not participate in the first instance, because they are candidates to be voted for at the next election. The four justices were unable to agree and no order was then made. Later, application was made by the petitioner, to .have the cases heard before the full court, and orders were at that time entered, the purpose of which was to preserve the status quo' until the cases could be finally disposed of. On the hearing before the full court, respondents objected to Justices Helm, Goddard and Maxwell participating because of the fact that they were candidates on the tickets in question.” It will be noted that a majority of the court sat in the first instance, just as in this case, that they were divided in opinion as in this case. The four judges sitting could have been divided in but one of two ways, either one to three, or equally. If they were divided in the proportion of one to three, then there was presented the identical situation as here, that is to say, three judges of the same mind, and therefore, if the position of the-majority here is sound, the three judges could and should have rendered judgment. If they were equally divided in opinion and if, as the majority here say, a majority of a quorum have the power *517of decision, then the court must have followed the statute in case of equal division and have declared the case to be affirmed under the statute.
Nothing is plainer than that the entire membership of the court repudiated such a doctrine and the three judges who declined to participate in the first instance, were called in and participated over the objection of counsel.
It is plain that it was a case wherein much adverse comment would and naturally did arise by reason of the three judges being candidates and at least publicly believed to be interested.
Such participation was necessarily very embarassing to the three distinguished jurists even if it was strictly within the law, and we must assume that they would not have joined in the pronouncement of a decision if they could have believed, and held with the majority, in this case, that a majority of a quorum, and not a majority of the court could pronounce a judgment of reversal.
It is apparent that in effect and in fact, though not in language declarative, the acts and proceedings in that case are an authority and should be controlling in this case upon the question I am considering.
14. But I am unable to see the consistency of action of the non-participating judges in declining to participate in the cause here pending before the court, and at the same time participating to the extent of adopting a rule in the same case, whereby the opinion of a minority of the court should have the same force and effect as if concurred in by a majority of the court.
Admittedly the opinion of the three must have been inoperative and void except as it may be said to be validated by the votes of these two judges, or at least one of them to hand it down as an opinion of the court. If it was a binding decision of the court, why did it require the votes of these two judges to pronounce it? If they had not so participated and voted, it could not have emerged as a judicial decision and would not now be entered as such.
*518Therefore, in my opinion, their participation in adopting the rule to make it effective was as vital and necessary as if they had joined in the opinion of the three judges. It appears to me that this attitude creates a distinction without a difference, a distinction to my mind as reasonable as if A charged with the murder of B, by pushing him over a cliff, whereupon he fell to the bottom of the abyss and was killed, and then to defend on the ground that he simply pushed B over the cliff, but that his fall and consequent death were caused by the natural law of gravitation.
With due deference to the judgment of my learned colleagues, I am forced to the irresistible conclusion that the action of the majority in this particular, constitutes in effect, a judicial usurpation of constitutional and legislative power, creating within the range of its possibilities grave danger to constituted government.