on petition eor rehearing.
Beard, Chiee Justice.The opinion in these cases was handed down March 29, 1920, and appears in 188 Pac. 354. A petition for a rehearing has been filed by counsel for plaintiffs in error. The onty ground for a rehearing stated in the petition is, “that said cases have not been heard by this court; that the opinion filed herein on March 29, 1920, should be disregarded and said cases set down for hearing before this court, for the reason that the number of justices of this court required to transact the business of the court were not present and did not take part in the hearing or determination of said cases.” No objection was made, at- the time, to submitting the cases to the court as then constituted. The facts are, as stated in a note at the end of the opinion, that “Beard, C. J., and Blydenburgh, J., being unable to sit in said cases, District Judges James H. Burgess and Charles E. Winter were called in to sit in their stead. Judge Winter, having resigned his office prior to the'decision, did not participate therein.”
The journal of the court further shows that Justice Potter and Judge Burgess were both present and sitting as members of the court at the time the opinion was handed down, it being written by Judge Burgess and concurred in by Justice Potter; and that the other Justices 'of the court were then present but not participating in the decision: Counsel cites in his brief in support of his petition for a rehearing, Sec. 4, Art. V, of the Constitution, “The Supreme Court of the State *512shall consist of three justices, who shall be elected by the qualified electors of the state at a general state election at the times and places at which state officers are elected,” etc. Also Sec. 5> id.: “A majority of the Justices of the Supreme court shall be necessary to constitute a quorum for the transaction of business.” Also Sec. 879, Comp. Stat. 1910: “A majority of the Justices of the Supreme Court shall constitute a quorum for the transaction of business. In the absence of a quorum on the first day of an adjourned or regular term, the court shall stand adjourned from day to day until a quorum shall be present; and the court may, there being a quorum present, adjourn from tiriie to time to any subsequent date.” He also quotes from 15 C. J. 964, “in the absence of a quorum or number required by law to hold court, a judgment rendered by the remaining Judges will be regarded as a nullity, as in such a case there is no authority conferred to render a judgment.” And cites the text of that work and cases in note 58; and Long v. State, Ann. Cas. 1912, A. 1244 and notes at 1251 et seq.
Counsel makes no claim, nor can any valid claim be made, that there was not a constitutional quorum of the court present both at the hearing and decision of the cases, or that the decision-was not by the necessary number of judges, if the District Judges called in were members of the court for the purposes of the cases and are to be counted in con-' stituting a quorum of the court. But his contention is, that they were not members of the court, and cannot be so regarded. He seems to have entirely overlooked Sec. 6, Art. V. of the Constitution. As originally adopted, it read, “In case a Judge of the Supreme Court shall be in any way interested in a cause brought before such court, the remaining Judges of said court shall call one of the District Judges to sit with them on the' hearing of said cause.” Under that provision, Judges of the District Court' were frequently called and were always regarded as members of the court for the purpose of the case. That section of the constitution was amended in 1917, and now reads, “In case a Justice *513of the Supreme Court shall for any reason be unable to sit in any cause in said court, the presiding Justice of said court shall call one of the District Judges to sit as a member of said court on the hearing of said cause.” Thus increasing the causes for which a District Judge should be called, and expressly providing that he should be, when so called, a member of the court. The language of said section of the constitution is too plain to admit of but one construction, which is, that the judge so called is as much a member of the court for all purposes of the cause in which he is so called, as a regularly elected Justice of the Supreme Court. The members of the constitutional convention evidently foresaw that in the absence of such a provision a condition might arise in which the business o'f the court would be long delayed. Indeed, but for that provision, the condition might be such that a quorum of the court could not be secured for the hearing and decision of a certain case for nearly six years. If a District Judge who is thus called to sit in any cause is not a member of the court for all purposes of the cause, we are unable to explain for what purpose he is so called.
With the exceptions that it requires a quorum of the court to transact business, and that the decision must be by a majority of such quorum, the authorities cited by counsel in his brief do not sustain his contention, but are against it.
For the Territory of Utah the Act of Congress provided: “The Supreme Court consists of a Chief Justice and three Associate Justices, any three of whom shall constitute a quorum; but no Justice shall act as a member of the Supreme Court in any action or proceeding brought to such court by writ of error, bill of exceptions, or appeal from a decision, judgment, or decree rendered by him as a Judge of the District Court.” In Nephi Irrigation Co. v. Jenkins, 8 Utah 452, it was held that under that act any three of the Justices constitute a quorum for the transaction of business, and a Justice who tried the case below might sit for the purpose of making a quorum, but could not act or participate in such proceeding. In Pennsylvania, but not under a constitutional *514provision like ours, the Supreme Court of that state in Commonwealth v. Mathews, 210 Pa. St. 372, held that where one or more of the Judges of a court decline to sit in a case by reason of personal interest in the result, the powers of the eourt necessarily devolve on the remaining Judges, even if only a minority of the court. In the present case, a quorum of the court was present at the hearing and decision of the cases and the decision was by a majority of the Judges who; sat and heard the cause, and is valid. A rehearing is denied.
Rehearing denied.
Potter and Blydenburgh, JJ., concur.