(dissenting). — 1. Section 4 of the constitutional amendment of 1890 confers an absolute right to a transfer to the court in banc when certain facts exist. Then, “the cause, on the application of the losing party, shall be transferred to the court for its decision.” *97Our learned brethren construe this language to mean that the application can not be made to the court in banc.
The learned opinion of our brother Macfaklane does not decide whether a federal question is involved in the Duestrow case. That point is treated as wholly immaterial. The opinion proceeds on the theory that the court in banc has, in no event, authority to order a cause heard before the entire court, even though the facts bring the cause within the terms of the first part of the fourth section.
Viewing the amendment of 1890 as a whole, it seems to us, with due respect, that the construction thus placed upon it is faulty.
In our opinion a losing party (entitled under section 4 to have his cause transferred to the court in banc) may apply to that court for such a transfer and obtain it, if the division in which the cause is pending should refuse it.
The cases that reach the supreme court do.not pass entirely out of, and beyond, its jurisdiction by being-assigned to a division of the court for hearing. It is expressly declared by section 3 that “the supreme court shall assign to each division the causes and matters to be heard by it.” It is not there said (because it goes without saying and is obviously implied) that the supreme court may assign to itself, the court in banc, causes to be heard by it. And it would, in our opinion, be its duty (when cíuly requested) to assign for a hearing in the court in baric any cause in which a party becomes entitled to such- a hearing as of right, under the terms of section 4. According to the theory of the learned opinion of the majority, when a cause is once committed to a division, the supreme court.loses control of it, and from that time the division alone may determine where it shall be heard. We respectfully *98dissent from that view. A cause pending in a division is still pending in the supreme court, and may, at any stage, be assigned by the supreme court, for hearing in its proper place. This we consider the true spirit and intent of the amendment of 1890. To hold otherwise will introduce the possibility of the growth of two different systems of jurisprudence, administered under one roof.
If each division stands united, it may adopt its own view of the law, and there will be no possibility of action thereon by the whole court in the interest of that unity in our jurisprudence which the terms of our organic law, touching appellate courts, have for many years been aiming to secure. Const. Amenclt., 1884, sec. 6. Enough of conflict in our final decisions arises from the mere division of appellate jurisdiction; but the chance of such conflict will be greatly increased by the adop-r tion of the theory now approved by a majority of our learned brethren. The court in banc — the supreme court — should be held to be the court of final resort, and it should be held to have (at all times while the cause is pending) control of every case for the purpose of assigning it for hearing. The divisions were not intended by the constitution to be independent of each other and of the court in banc, so that the latter should be powerless to order a case heard before it, if a party is entitled to such a hearing.
The fact that the Duestrow case is a criminal one does not impair the right of transfer to the court in banc. The second division has “exclusive cognizance of all criminal cases,” but it is further declared, in the same connection (section 1), that such a criminal cause “may be transferred to the court as provided in section 4 of this amendment.” So whatever right of transfer to the court in banc is given by the fourth section, exists in criminal, as well as in civil cases.
*99We consider that the supreme court has power to assign the Duestrow case to the court in banc for a hearing “on the application of the losing party,” assuming that the case involves a federal question, and as such comes within the mandatory clause of section 4.
The right to such a hearing is a valuable right, for, if a rehearing in banc be had, the defendant is entitled to submit for review there the whole case, not merely the federal question. If the right to -a rehearing in banc is refused, the ruling can not be said to be harmless, since any review of the divisional judgment that might be obtained in the federal jurisdiction would be limited to a review of the federal question.
2. In the early part of the trial in the Duestrow case on the circuit, the court refused to allow defendant 48 hours within which to make his peremptory challenges of-jurors. He would have had that time under the law in force at the date of his indictment in 1894 (R. S. 1889, sec. 4204). But the court applied to the case the act of 1895 (Laws, 1895, p. 165, sec. 4204) which allows only 24 hours for such challenges in prosecutions of this kind. (The last trial began in January, 1896.) The counsel for defendant claimed, at the time of said ruling, defendant’s right to .have 48 hours for challenges, on the ground that the law reducing the time to 24 hours was a violation “of the constitution of the United States in the clause which provides that no bill of attainder or ex post facto law shall be passed.” His counsel then added: “This presents a federal question which the defendant now claims the protection of.” But the learned circuit judge overruled said objection, and defendant duly saved exception.
Defendant also objected to being tried under the 24 hours law, on other grounds, but we are not concerned with them at this time.
*100In defendant’s motion for new trial he repeated said objections, and claimed explicitly that the change of law (providing that the list of qualified jurors should be delivered to defendant 24 hours before the trial) was “as to this defendant and this case, an ex post facto law, and void under the operation and effect of see. 10 of art. 1 of the constitution of the United States of America, and in violation of the rights of this defendant, as a citizen of the United States, secured to him by said provision of said constitution.”
In the brief and argument filed on behalf of the defendant in the second division of the supreme court, the above point is repeated, and elaborated. The learned opinion of affirmance by that division discussed the question so raised, as appears in the second paragraph of the opinion. It was then held that the change of law referred to was “not obnoxious to-the charge of unconstitutionality, either under the national or state constitutions.”
A question is “involved” when it arises for decision. Duncan v. Missouri (1894) 152 U. S. 377.
Even when a constitutional question has been so irregularly raised as to be inseparably mingled with another issue, precluding a direct decision upon the first question, the majority of the court in banc have held that the constitutional question is sufficiently “involved” to confer appellate jurisdiction on that ground. McCarty v. O’Bryan (1896), post, p. 584; 38 S. W. Rep. 456.
The United States supreme court has lately defined an ex post facto law to be “one which imposes a punishment for an act which was not punishable at the time it was committed; or an additional punishment to that then prescribed; or changes the rules of evidence by which less or different testimony is sufficient to convict than was then required; or, in short, in *101relation to the offense or its consequences, alters the situation of the party to his disadvantage.” Duncan v. Missouri (1894) 152 U. S. 382.
Whatever our own view might be, touching the validity of the Missouri law of 1895 as applied to the Duestrow case, we can not know in advance what view might be taken of that law by the federal supreme court when applying as a test the rule above quoted. In the state of facts shown in this case, it seems to us that where the defendant has invoked, unsuccessfully, the constitution of the United States, a federal question under the judiciary act of 1789 is" fairly presented, within the rulings of the supreme court of the United States indicating what a federal question is. Kring v. Missouri (1882) 107 U. S. 221; Stanley v. Schwalby (1896) 162 U. S. 255.
Such a federal question we consider to be within the reach of the fourth section of the amendment of 1890 to the Missouri constitution. When such a question is involved, we believe that the defendant is entitled to a review of the whole case by the court in banc. Whether or not it is involved, in a given state of facts, is a question of law (sometimes of difficulty), which should be decided by the court in banc when properly invoked to decide it.
The merits of the federal question are not now before this 'court, and we regard them as foreign to the present discussion.
We regret being obliged to differ from our learned colleagues. But the importance of the case appears to demand a statement of our position, and of the reasons that have led us thereto. With all respect due our learned brethren, we find ourselves unable to concur in their judgment denying the motion for a transfer to the court in banc.
Judge Robinson concurs in this opinion.