dissenting. Justice Resnick has cogently, systematically and eloquently stated the case for the validity.of a majority of this court granting a motion for rehearing in the case now before us. She has laid out the pertinent rule of this court and the court’s procedures in such matters and it is difficult to comprehend, after reading her analytical and forthright presentation, how any member of the court can vote to grant a motion to vacate when such a motion has no basis or foundation in our rules. What it boils down to is the “rule of four.”
Why then does not the “rule of four” carry the day as to our rehearing vote? That is and will obviously remain a mystery. On October 8, 1991, we announced that “[a] rehearing is granted sua sponte as to all issues in this cause. This cause is to be decided on the merit briefs previously filed. No oral argument is to be set.” 62 Ohio St.3d 1427, 578 N.E.2d 819. Concurring in this order were Justices Sweeney, Douglas, H. Brown and Resnick — four members of this court.
On October 16, 1991, a “motion to vacate rehearing entry” was filed by appellee. Even though such a motion has no basis in our rules, the “rule of *1217four” has today prevailed and the motion is being granted. I support the “rule of four” but strongly feel that the rule should have equal, across-the-board application. To say that our vote on October 8, 1991 was somehow tainted but apply a different standard to our vote on the October 16, 1991 motion seems curious, at best.
I fully concur in Justice Resnick’s well-reasoned dissent. She has stated the procedural case and the cause is, by rule, properly before us but there is yet another reason why the vote of October 8, 1991 was, and is, completely valid. Obviously, at that time, at least four members of the court thought that the August 14, 1991 decision of this court was in error and was not a proper application of the law. In order to avoid the question of whether an amicus curiae may move for a rehearing, a majority voted that the case should be reheard sua sponte. Sua sponte is defined as “[o]f his or its own will or motion; voluntarily; without prompting or suggestion.” (Emphasis added.) Black’s Law Dictionary (6 Ed.1990) 1424. The question that then seems to arise is whether this court — or any court — has the inherent power to, on its own motion, reconsider one of its prior pronouncements.
While Royal Indemn. Co. v. J. C. Penney Co., Inc. (1986), 27 Ohio St.3d 31, 27 OBR 447, 501 N.E.2d 617, involved the revocation of a pro hac vice admission of an attorney, Justice Wright spoke of a court’s inherent power to protect the integrity of its proceedings. Id. at 33-34, 27 OBR at 449, 501 N.E.2d at 620. Justice H. Brown, the critical vote to our determination herein, also. recognized the inherent power of a court, albeit “ * * * to entertain contempt proceedings and punish disobedience * * * ” of a court order, in Planned Parenthood Assn, of Cincinnati, Inc. v. Project Jericho (1990), 52 Ohio St.3d 56, 61, 556 N.E.2d 157, 163.
What is this seemingly elusive “inherent power”? It is “ * * * the power a court possesses as a court; it is the power of a court qua court and is not conferred upon the court by constitution, statute, or rule. Accordingly, it is neither conferred by, nor limited by, the court’s jurisdiction over the merits of a particular action. * * * ” Browne, Evading Sanctions through Voluntary Dismissals (May/June 1991), Ohio Civil Practice Journal 74, 82-83.
The recognition of courts’ inherent power certainly is not of recent vintage. As long ago as the July Term, 1788 of the Supreme Court of Pennsylvania the court was wrestling with the question of inherent power. The issue was whether a contempt of court was punishable by attachment. Speaking for the court, Chief Justice M’Kean, in Respublica v. Oswald (Pa.1788), 1 U.S. (1 Dallas) 319, 329, 1 L.Ed. 155, 160, said that “ * * * not only my brethren and myself, but, likewise, all the judges of England, think, that without this power [inherent power to punish contempt] no court could possibly exist * * *. The *1218law upon the subject is of immemorial antiquity; and there is not any period when it can be said to have ceased, or discontinued. * * * ”
In Hale v. State (1896), 55 Ohio St. 210, 213, 45 N.E. 199, 200, this court said:
“The difference between the jurisdiction of courts and their inherent powers is too important to be overlooked. In constitutional governments their jurisdiction is conferred by the provisions of the constitutions and of statutes enacted in the exercise of legislative authority. That, however, is not true with respect to such powers as are necessary to the orderly and efficient exercise of jurisdiction. Such powers, from both their nature and their ancient exercise, must be regarded as inherent. * * * Without such power no other could be exercised.” (Emphasis added.)
The Hale court went on to say that the people, by adopting constitutions, created courts and authorized legislatures to create additional courts. “ * * * The courts so created and authorized have all the powers which are necessary to their efficient action, or embraced within their commonly received definition. * * * ” (Emphasis added.) Id. at 214, 45 N.E. at 200.
Both sides cite Tuck v. Chappie (1926), 114 Ohio St. 155, 151 N.E. 48, a case involving rehearings and the inherent power of this court. “ * * * In the furtherance of justice, it [this court] exercises the jurisdiction to grant rehearings. * * * ” Id. at 156, 151 N.E. at 49. The case involves a rehearing motion filed during the court’s “term” but heard “after term.” Such is not the case before us. Here, a determination for rehearing was made and the case would have been reheard “during term.” Thus, Tuck really stands for the proposition that any rehearing granted (by rule or sua sponte) and any decision of the court to set aside or modify one of its judgments “during term” is fully within the power of the court.
Coming now to the bottom line in this case, we find that at least four members of this court say that the opinion of the court in Episcopal Retirement Homes, Inc. v. Ohio Dept. of Indus. Relations (1991), 61 Ohio St.3d 366, 575 N.E.2d 134, is an incorrect statement of the law as it involves the prevailing wage law and R.C. Chapter 140 bonds. Yet, curiously, that opinion stands for the “guidance” of the bench and bar of Ohio. Sometimes truth is stranger than fiction!