Concurring Opinion on Petition eor a Rehearing.
Coffey, C. J.On the 3d day of January, 1893, a petition for a rehearing in this cause was filed on behalf of the attorney-general of the State. Before any consideration of such petition, we are met by the grave question as to whether we have any jurisdiction in the case. ' If we have jurisdiction, no great public inconvenience is likely to arise by reason of any action taken by the court in the cause; but, on the other hand, if we have no jurisdiction, any action we may take will be a mere nullity.
The granting of a rehearing under such circumstances would not annul the former adjudication holding the apportionment acts of 1879 and 1891 invalid. The evil consequences likely to follow upon the attempted enforcement of laws which stand authoritatively adjudged invalid can readily be foreseen. As to the manner in which or in what tribunal the question of the validity of such an attempt may arise, no one, at this time, can foretell; but that it would arise, in some form, in the event we should assume to act without jurisdiction, is reasonably certain. The *218question of jurisdiction over the case necessarily arises upon the record.
Section 662, R. S. 1881, provides that “when any cause is determined in the Supreme Court, the clerk shall forthAvith notify the clerk of the court below that it is determined, and whether reversed or affirmed, in whole or in part, or dismissed. At any time Avithin sixty days after such determination, either party may file a petition for a rehearing; if not so filed, the decision and instructions of the Supreme Court shall be certified to the court below, unless otherAvise ordered by the court.”
Rule 38 of this coui’t provides that “ opinions and judgments shall not be certified to the court below by the clerk of this court, except in criminal cases, until the expiration of sixty days, unless by order of this court, or on the filing of waiver of petition for rehearing, which order of court, or filing of waiver, shall be certified by the clerk with the opinion.”
The opinion of:the court in this cause was filed on the 17th day of December, 1892, and on the 22d day of the same month the parties to this litigation, acting under the above statute and rule, filed in the clerk’s office of this court the folloAvin'g Avaiver of the right to file a petition fora rehearing, viz.: “Come iioav the parties, both appellants and appellee, and each severally and separately Avaive and relinquish the right to file a petition for a rehearing of this cause, and accept as final and coucIusíau; the opinion of the court heretofore rendered in this cause, and noAy ask that the court will order and direct the clerk of this court to immediately certify said cause and opinion to the clerk of the Henry Circuit Court, from which court the appeal in this cause was taken.”
This waiver Avas signed by the attorneys of record for each of the parties, and was not only filed in the clerk’s office, but the parties, in addition to such filing, procured an order of the court thereon, requiring the clerk of this *219court to certify the cause according to this request and agreement of the parties.
The cause, pursuant to this agreement and waiver and the order of this court, was accordingly certified by the clerk of this court to the clerk of the Henry County Circuit Court.
That this was a legitimate mode of taking the case from this court seems not to be doubted, and that the cause, as well as the parties to the suit, is now beyond the power and control of this court, I think, is equally certain, unless some party remains here, not having joined in the waiver, who is entitled to file a petition for a rehearing.
No petition is filed by the State, and if such petition was on file it would he a sufficient answer to it to say that it was not entitled to a rehearing without the consent of the relator to whom it has extended the use of its name for the enforcement of a private right, even if it had not joined in the waiver, which it has done.
A petition has been filed by Mr. Chandler, an intervenor, but it is not claimed that he is entitled to a rehearing. If such claim were made it would he a sufficient answer to it to say that he has not filed a brief in support of his petition, and for this reason, under the well-known rules of this court, it is waived.
The only petition in the-cause under which it is claimed we have the power to grant -a rehearing is filed by the attorney-general'of the State.
During the progress of the cause in this court the following order was made, namely: “ It further appearing to the court that the matters involved in said cause are such as affect the entire people of the State, and are of great importance, it is ordered that leave be granted to the attorney general of the State to appear in behalf of the people and to take such steps as he may deem necessary to aid the court in reaching a just determination thereof.”
It is now claimed by the attorney general that by virtue *220of this order lie became a' party to this suit. Unless this claim can be maintained, of course, his position is not entitled to consideration; for, as will be seen by reading the statute, no provision is made for filing a petition for a rehearing by any person other than a party.
The contention that the attorney-general is a party to this suit would seem to be so destitute of plausibility as not to require a moment’s consideration, were it not for the apparent earnestness with which he seeks to maintain it.
In the nisi prius courts parties aré known as plaintiffs and defendants. In this court they are known as appellants and appellees. If the attorney-gen eral is a party to this suit, which is he, an appellant or an appellee? With whom is he litigating? What judgment shall be rendered either for or against him ? lie is not an intervenor, for no person can be such unless he has a personal interest in the controversy, and it will certainly not be contended that the above order embraces a right to set up a personal interest.
It was perfectly proper, I think, for the court, in view of the public interest involved in this case, to invite the attorney-general, the chief law officer of the State, to aid it, with his extensive knowledge of the law, in arriving at a correct conclusion; not in private consultation, but in open argument and by briefs. As he was the representative of the whole people of' the State, the court had the right to assume that he would stand impartial as between the parties, and that he would honestly andUaithfully, as a public officer, give to the court his views upon the new and intricate questions involved. That he did, by the able brief filed' by him, give the court much aid is not to be denied. But it was not as a party to the suit that he was permitted to file briefs and argue the case. His relation to the court was simply that of an amicus curice. It is not the function of an amicus curice to take upon himself the management of a cause. Anderson’s Dictionary of Law, *221title Amicus Curies. The powers and duties of an amicus curies are well understood by the profession. In the case of Irwin v. Armuth, 129 Ind. 340, it was said: “ An amicus curies may appear, and, with the permission of the court, introduce evidence for his own benefit, but he can not except to any ruling made by the court, as he has no right to complain if the court refuses to accept his suggestions.”
Filed January 27, 1893.This cause was certified to the Henry Circuit Court on the 22d day of December last. It may be that the judgment has been rendered by that court in accordance with the opinion and directions of this court. If so, can we now, by any action we may take, affect that judgment? I think not. In my opinion, the moment this cause was certified to the Henry Circuit Court by order of this court, we lost jurisdiction over it as fully as we would have lost it had the sixty days allowed to file petitions for a rehearing fully expired.
For these reasons, I am of the opinion that we have no jurisdiction and that we have no power to consider the petition for a rehearing filed by the attorney-general.