Upon petition for rehearing, the following
Per Curiamorder was filed:
2 This Court being equally divided upon the question involved in this case, as appears by the opinions filed on the '23d day of March, 1899, the judgment of the Circuit Court stands affirmed, by virtue of' the provisions of the Constitution of this State. The appellant now files his petition for a rdhearing, for the purpose of having the question involved authoritatively determined by the Court en banc, as provided for in sec. 12 of art. V. of.the Constitution. Inasmuch as it is not, and cannot be, claimed that any constitutional question is involved, the Circuit Judges cannot be called to the assistance of this Court, as provided for in the constitutional provision above cited, unless at least two of the Justices of this Court desire it, and as nO' such desire has been expressed, this would be decisive. We may. add, however, in deference to the zeal and .earnestness *151with which this petition has been urged, that we see no ground for making this case an exception to- the well settled rule in regard to petitions for a rehearing, viz: that unless some material fact or principle of law has been overlooked or disregarded, the petition will not be granted. This salutary rule is frankly conceded by counsel for petitioner to be necessary to prevent delays in the administration of justice, and to ensure the prompt determination of controversies between citizens; but they seek to take this case out of the operation of this rule by the following considerations: ist. Because of the grave public importance of the question involved, involving not merely the interests of the parties to this case, but also the interests of the public generally. 2d. Because the question involved does not grow out of the testimony adduced in this case, but arises out of the construction of a written instrument in its relation to the statute forbidding the taking of usury. 3d. Because “in the brief space of time in which counsel agreed and undertook to present the appeal, it was done in an unsatisfactory and perfunctory manner,” and that for this reason the distinction in questions of usury, between contracts executed and executory, was not fully discussed by counsel “in their hurried argument,” and hence such distinction was overlooked by the Court.
3 As to the first and-second of these considerations, it is sufficient to say, that they have been found in many cases, and, no doubt, will be found in many other cases; and to allow such considerations the force of qualifying the well settled rule, would, to a great extent, emasculate the rule, and defeat its salutary effect in preventing delays in the administration of justice.
As to the third consideration, it 'seems to us that counsel fail to do themselves justice in characterizing their argument as “perfunctory;” but, in addition to this, we are able to say that the case was thoroughly and carefully considered, and the point, as .to the distinction between contracts executed and executory, was not only not overlooked but was expressly referred to in one of the opinions. Inasmuch as it is *152claimed that this case presents an exception to the general rule, we have departed from our usual custom in disposing of petitions for a rehearing, solely for the purpose of indicating the reasons why we do not consider that this case can be taken out of the operation of the general rule; and after a careful consideration of the whole matter, we are of opinion that there is no ground for a rehearing.
4 It is, therefore, ordered, that the petition be dismissed, and that the stay of the remittitur heretofore granted be revoked.