(concurring).
The specific question presented for our determination in these consolidated cases is whether a procedure for court sittings established by rules of the Third Circuit Court of Appeal is unconstitutional. From the record before us in these two suits, including a return of the Third Circuit Court of Appeal to the application for writ of certiorari or review in the Dauzat case, we can determine the following circumstances to reflect the problem before us :
The Court of Appeal, Third Circuit, is a six-member court. As authorized by the Constitution, it routinely sits in rotating panels of three. However, after rendition of judgment by such panels, applications for rehearing are considered by the court en banc — in its entirety. If a rehearing is thought to be merited by a majority of that en banc court or if the court is equally divided, the rehearing is granted.
It is only recently that the Third Circuit became a six-member court, with the result that there is now a possibility that the court sitting en banc may be divided equally in opinion and unable to render a judgment. To avoid such a stalemate, the practice which is the crux of the problem before us was adopted by that court: By lot or chance one of the six members is eliminated from the court en banc, and the consequence is that the position opposed by that judge automatically prevails upon rehearing.
*371Such a situation has occurred in each of the consolidated cases. In Sylvester, after a trial court award the case was heard by and submitted to a panel of three judges, but judgment was not rendered by the court to which the matter was submitted. All parties were notified that the case would be resubmitted to the court en banc without oral argument or further briefs. The court there was equally divided in opinion (three to three) and certified a question to this court. We declined to answer on the ground that the question submitted was factual and not legal, and returned the record. On oral argument on remand to the Court of Appeal, the parties faced five judges, apparently sitting under a “predetermined method of assuring that en banc sittings will not result in a three-three tie * * *
In Daxxzat, the majority of the three-man panel on oi-igmal hearing amended and affirmed a district court judgment for relator. On rehearing, apparently (for in that case we do not have the certification in which the court itself said it was equally divided) 'three members 'of the six-man court agreed with relator, but in the lot or chance drawing of a 'five-judge panel to break the tie, a judge who had voted in relator’s favor was eliminated, and three of the remaining five members of that coxxrt favored respondents’ position and reversed the judgment rendered on first hearing by the panel of three.
Loxxisiana Constitution Article 7, Section 23, as amended in 1958, provides:
“ :ji >{£ * * i}c *
“Courts of appeal having more than three-judges shall sit in rotating panels composed of three judges selected in conformity with the rules adopted by the court, two of whom constitute a quorum. However, in exceptional cases or when deemed necessary or expedient by the judges thereof, a court of appeal may sit en banc * * (Emphasis here and elsewhere supplied.)
Article 7, Section 26, as amended in 1958, reads:
“No judgment shall be rendered by any of the courts of appeal unless a majority of the judges sitting in the case have read the record and have concurred in the judgment. If for any reason they cannot concur, or if one or more of the judges are absent, recused, or unable to serve, they, or the remaining jxxdges, may appoint district judges, or lawyers having the qualifications of judges of courts of appeal, to sit in the case.”
. Before the 1958 amendments, which were part of the general jurisdictional revision for the appellate courts and the Supreme Court, each of the Courts of Appeal consisted of only three judges. Former Article 7, Section 26, read:
“No judgment shall be rendered by any of the Courts of Appeal without the concurrence of izvo judges. At least two judg*373es shall read each record, and the conclusions of the court shall be reached in consultation before -the case is assigned for writing the opinion, and when for any reason two judges cannot agree, they shall appoint a district judge, or a lawyer having the qualifications of a judge of the Court of Appeal, to sit in the case. Should one or more judges of a Court of Appeal be absent, recused, or unable to serve, the remaining judge or judges may appoint district judges, or lawyers with the aforesaid qualifications, to sit in the case.”
I first addi'ess myself to the evolvement of present Article 7, Section 26. It is obvious that no judgment could be rendered by a Court of Appeal prior to the 1958 amendments withoxxt concurrence by a majority of the entire court. It was mandatory when two judges coxxld not concur that the court as constituted in the sitting appoint a district judge or lawyer to sit in the case in order to make an adjudication by concxxrrence of two. Former Section 26 used the word “shall” in the sentence regarding the inability of two judges to concur. In a separate, final sentence of that section, it was provided that if one or more of the judges of the court were absent, recused, or unable to serve, the remaining judges were permitted to call in a district judge or lawyer to sit in the case. In order to indicate permissiveness in the latter situation, the word “may” was used. In the revision the last two sentences of the section (the one dealing with lack of a majority concurrence and the other with the absent, recused, or disabled judge) were combined into one sentence. To retain the permissiveness for the latter situation, the auxiliary verb “may” had to be used in the combining of the thoughts, and the auxiliary verb “shall” was omitted. Additionally, permissiveness is required now when the courts are sitting in panels of three. Since all Courts of Appeal are now composed of more than three members, a panel of three which cannot obtain a concurrence of two for any reason certainly should be permitted to first exhaust the remaining composition of that court before calling for outside assistance.
Sections 23 and 26 of Article 7, when read in pari materia and given their full import and meaning, force the conclusion that the chance method for breaking tie votes in the Court of Appeal is unconstitutional. The Courts of Appeal can sit in only two compositions: They may sit in panels of three judges or they may sit en banc. Without recourse to a recitation of all the abundant definitions of “en banc”, I conclude that en banc means a full court. Therefore, in a sitting en banc of a six-member appellate court, the court is composed of its six members whether in fact one or more are absent by reason of illness, recusation, or other cause. It is mandatory under Article 7, Section 26, that a “majority of the judges sitting” must concur in any *375judgment in a Court of Appeal. If a panel of three is sitting, of course a concurring by two is the requirement for judgment. If the Court of Appeal sits in the only other manner provided, en banc, the number of judges required to constitute a majority of the full court is the number required to concur in order for any judgment to be rendered. In a cotirt composed of six, as here, four judges must concur whether four, five, or six actually occupy the bench and take part in the case, for the six judges, the full court, are sitting as contemplated by Section 26, Article 7.
It is well to note that when court judgments are determined by lot and chance rather than by reason and logic, judges will become unnecessary. Here it is after logic and reason have been utilized to firm up the minds of the individual judges who' compose the court that the final consensus is reached and the litigants’ rights finally adjudicated by mere chance and lot. The result reached by the Court of Appeal under its prearranged system of eliminating a judge has no more validity than if in the presence of all six a coin was flipped or dice rolled to determine which opinion of the evenly divided court will prevail. While the lot system may save time and may easily resolve differences between panels of the court, this is not a court procedure authorized or sanctioned by our Constitution. Although my concurring opinion could belabor the question of the reasonableness, the fairness, and the wisdom of the method now employed by the Third Circuit, it is not necessary that I do so, for this court’s only obligation here is to determine the constitutionality of the practice of that court.
I respectfully concur.