(concurring specially). — I topic no paid in the consideration of this casé until the matter was presented on motion to vacate the order granting a rehearing.
My view was that the Court had lost jurisdiction of the cause and that the motion to vacate was well founded. That motion lost by a divided opinion of the Court. Thus, it was necessary to study the merits of the cause. From knowledge gained by my examination and from the argument last presented, I concur in the opinion by Mr. Justice Buford.
Whitfield, J.The order granting a rehearing is procedural only. It merely permits a re-argument of the cause and does not change or affect the judgment of this Court affirming the decree appealed from. The judgment of affirmance stands as the judgment of this Court unless it-is changed by a majority of the Justices of the Court sitting as a body in the cause.
I am willing to let the cause be re-argued as other causes have. been. The judgment of affirmance will of course remain the judgment of this Court unless it is changed in the manner required by the Constitution.
*34This Court sitting as a body with five of the six Justices participating, has jurisdiction by.a 'majority vote to grant a petition for a rehearing and to recall the mandate in a cause in which a decree of the Circuit Court has been affirmed by ail evenly divided Court, where the petition for a rehearing is presented and granted during the term-in which the mandate is issued and transmitted to the trial court. But a petition for rehearing granted does not in any way affect the judgment of the Supreme Court rendered in the cause. Such judgment cannot be changed in its legal effect except by a direct vote of the Justices as is expressly provided by the Constitution. See Comer Bridge & Foundation Co. v. Sheeran, 119 Fla. 543, 161 So. 60; City of Marianna v. Davis, 124 Fla. 145, 169 So. 50.
The Constitution as amended in 1902 does not provide for a decision in any cause in the Supreme Court to be rendered by an even division of the six Justices of the Court; but it does expressly provide that “The majority of the Justices of the Supreme Court shall constitute a quorum for the transaction of all business”, and that “The concurrence of a majority of the members of the Court sitting in an}' cause wherein the Court shall sit as one body, shall be necessary to a decision; and when any member of a division of the. Court shall dissent from the majority of such division on any question, such question shall be submitted to the Court sitting in a body.” Sec. 4, Art. V. The word, “sitting” of course means participating in a decision in a cause.
Under the latter organic provision quoted above, this Court has decided numerous cases, some of which involved questions of constitutional law, on a vole of three to two when there were six Justices. See for examples, Ex parte Cox, 44 Fla. 537, 33 So. 509; Taylor v. State, 49 Fla. 69, *3538 So. 380; State v. Town of Belleair, 125 Fla. 669, 170 So. 434. In Taylor v. Finlayson, 128 Fla. 444, 176 So. 44, long contested in this Court, the first decision was on September 3, 1935. reversing the decree; the decree was later affirmed by an evenly divided Court; the'last decision on the fourth petition for rehearing, was rendered June 28, 1937, three Justices voting to affirm the decree, one Justice dissenting, one Justice absent on account of illness;' one Justice having died June 20, 1937, and his successor, appointed June 23, 1937, not participating in the decision. The decree was affirmed on a three-to-one division of the participating Justices. See also 146 So. 551.
In Carver v. State, á murder case, 101 Fla. 142, 134 So. 62, 136 So. 605, the judgment of conviction was affirmed by a four-to-two division of the Court of,six Justices'. A rehearing was granted and the judgment was reversed by a three-to-two vote of the Justices, one Justice not participating.
So under the constitution when there are six members of the Court and five are participating, a decision may be made three to two; or when four participate, a decision.may be made'by a vote of three to one of the Justices sitting as a body in tire cause.
In State ex rel. v. McClung, 47 Fla. 224, 37 So. 51, it is stated that; “Under our constitutional provision an equal division of opinion can not have the effect ipso facto of an affirmance, for the Constitution makes the concurrence of a majority necessary to a decision, but where the division is permanent and there is' no probability of an immediate change in the personnel of the Court, it becomes the duty of those in favor oif reversal to unite with ti-ieir associates in affirming the judgment, otherwise the case might be continued indefinitely, and the delay amount to a denial *36of justice. In sucli a case the rule with respect to the force and effect of the judgment of affirmance is the same as that which prevailed at common law where the judgment was affirmed because of an equal division of opinion. Thus it does not import a division as to the nature of the judgment, but as to the question of law and fact involved in it. While the judgment is a bar to any subsequent action for the same cause, * * * yet, as no matters of law are decided so far as the question upon which the court is1' equally divided is concerned, the judgment possesses no dignity as a judicial precedent. It carries upon its face a badge which precludes any application of it in future under the doctrine of stare decisis. ‘The judges simply agree that it is expedient to finish the litigation. It is a public expediency, and is often expedient also with respect to the interests of the parties. Supported by these considerations and the presumption of correctness which always attaches to the judgment of the court below, it is proper and right that the judges who were in favor of a reversal should waive any insistence of opinion and unite with their associates in an affirmance of the judgment. This they do without in any way relinquishing their convictions upon the questions of law or fact involved in the case.’ Luco v. DeTore, 88 Cal. 26, 25 Pac. Rep. 983; Frankel v. Deidesheimer, 93 Cal. 73, 28 Pac. Rep. 794; Santa Rosa City R. R. v. Central St. Ry. Co., 112 Cal. 436, 44 Pac. Rep. 733.”
Three-to-three affirmances under the procedure adopted in the McClurg case, cited above, do not affect the exercise of the jurisdiction as required by Section 4, Article V, of the Constitution -when a justiciable matter is presented to the Court by petition or otherwise.
In Helton v. State, 93 Fla. 232, 111 So. 635, the judgment was affirmed three to three and the mandate was sent *37down. A rehearing was granted on which the mandate was recalled during the last term of this Court. The rehearing was granted on the ground that there had been a change in the personnel of the Court. The cause was carried over to this term on the petition for rehearing granted and without an order vacating the final judgment. At this term the judgment was reversed.
In Chapman v. St. Stephens P. E. Church, 105 Fla. 683, text page 717, 136 So. 238, 138 So. 630, 139 So. 188, the judgment was reversed July 21, 1931. The mandate was issued September 1, 1931, and recalled January 6, 1932. The last judgment was rendered January 9, 1933, the cause having been carried over to the succeeding terms upon petition for rehearing and without an order vacating the final judgment.
In Faster v. Thornton, 113 Fla. 600, 152 So. 667, “The judgment was on writ of error reversed by this Court August 10, 1933. On Petition for Rehearing the judgment of reversal was receded from and by opinion filed February 9, 1934, the judgment of the court below was affirmed. Foster v. Thornton, 113 Fla. 600, 152 So. 667. Plaintiff in error then filed Petition for Rehearing which was denied February 27, 1934. On June 26 following this Court on motion of plaintiff in error entered its order directing the Clerk of the Circuit Court to return the mandate to this Court. A second oral argument was heard July 31, 1934, and on December 6 following, a Per Curiam opinion was filed which among other things announced an equal division of -the Court and reinstated the judgment of reversal, dated August 10, 1934. Foster v. Thornton, 119 Fla. 49, 150 So. 490.”
The above quotation is from the opinion in Foster v. Thornton, 125 Fla. 699, text 701, 170 So. 459.
So in the Foster v. Thornton case the judgment was *38reversed August 10, 1933, in the June Term 1933. On February 9, 1934, in the January Term, 1934, the judgment was affirmed on petition for rehearing. The mandate was issued and transmitted to the trial court March 1, 1934, in the January term 1934, and was recalled June 26, 1934, in the June Term 1934. On December 6, 1934, in the June Term 1934, the Judgment was again reversed.
There are at least two other cases now before the Court in which judgments were rendered and rehearings denied, and on second petitions for rehearings, the causes were carried over to this term on the petitions for rehearing which are now under consideration, no order vacating- the final judgment having been made. The ground for granting the rehearings was a chance in the personnel of this Court.
As the Court had jurisdiction in this term to reverse the judgment in Helton v. State, above cited, on a petition for rehearing granted and mandate recalled during the last term on the ground that there had been a change in the personnel of the Court, it must be that the Court has the same jurisdiction at this term it had at the last term. When a cause is carried over to another succeeding term or terms as in Foster v. Thornton and Taylor v. Finlayson, above cited, the Court has the same jurisdiction in each term that it had in the first term to make any order until the cause is finally disposed of in due course, and the term in which it is finally disposed has expired. A mandate may be recalled during the term in which it is issued. And the mandate was recalled the term after it was issued, in Foster v. Thornton, supra, 125 Fla., text page 701. This 'Court may grant or deny the recall of a mandate upon a proper and sufficient showing to warrant the order made.
In this case the decree was affirmed March 29, 1938, in the January Term 1938, on a three-to-three decision of the *39six Justices. A petition ior rehearing filed April 14, 1938, was carried over into the next term and denied June 18, 1938. The last order was vacated June 22, 1938. The petition for rehearing was denied by a three-to-three division of the Court October 11, 1938. Another petition for rehearing was filed October 12, 1938. The mandate was issued October 13, 1938. On November 25, 1938, during the same term in which the mandate was issued, petitions tor rehearing and a recall of the mandate were filed. Objections were filed December 6, 1938. On December 6, 1938, an order granting a rehearing and recalling the mandate was made by a three-to-two vote of the Justices, one Justice being present not participating. The cause was carried over to this term on the petition for rehearing and recall of the mandate as was done in Helton v. State, above referred to.
In this case a party to the affirmed decree had a right to present a petition for rehearing as had been done in many other cases, and the province of the Court was to act on the petition. There were six Justices present, the petition was granted three to two, one Justice not participating, as had been done in other cases. The cause was duly carried over to this term and the Court has all the jurisdiction and pow'er it had at a preceding term.
A re-argument should be allowed as in other cases, no1 matter what the decision may be. .
This opinion was prepared before the order of March 28, 1938, was made by the Court.
Buford, J., concurs. Brown, J., concurs in conclusion. Per Curiam.We give a chronology of the steps in the *40appeal leading up to the motion now under consideration, as follows:
The opinion of the Court was hied May 29, 1938, affirming the decree of the lower court; April 11, 1938, petition for a rehearing was filed; June 13, the January Term ended and on the following day the June Term commenced; June 18, petition for rehearing was denied and four days later the order denying it was vacated; October 11, petition for rehearing was again,denied, and the following day an extraordinary application for rehearing was lodged; October 13, the mandate issued; November 25 a petition was presented for leave to file a motion to recall the mandate and make oral argument; over objection of opposing counsel, on December 6, an order was entered recalling the mandate and granting a rehearing on the extraordinary petition.
During the proceedings above set out, until the 1st day of November, 1938, the personnel of the Supreme Court was unchanged, and on that date one member, who had voted on all of the petitions for rehearing, retired from the Court and was succeeded by a new appointee. Subsequent to this substitution, the last petition for rehearing was filed and granted by a vote of three to two, the new appointee not participating. Thus, it will be seen that the motion carried by a vote of three to two, whereas, prior to that time, petitions for rehearing had been denied twice because a majority of the Court did not concur in voting affirmatively on the applications.
After the extraordinary petition for rehearing was granted and the mandate ordered recalled, a motion was made by opposing counsel to strike from the records the last order of December 6 because of the circumstances apparent from a study of the above history of the .Court’s action.
Movants challenge the authority of the- Court to grant *41the petition on vote of three in favor of it and two against,, and question the jurisdiction of the Court because the petition for rehearing continued from one term to the next was denied and the mandate issued in the latter term.
Apparently the precise matter has not been decided by this Court before.
The Court loses its jurisdiction to consider an extraordinary petition for rehearing and recall of the mandate where nothing of record appears to carry the matter over until the following term. Allen v. Brevard County Loan & Mortgage Co., 118 Fla. 446, 159 South. Rep. 524.
Failure to send the mandate down, where the case was decided “four or five days” before the expiration of the term, was held in State ex rel. Davis v. City of Clearwater, 108 Fla. 635, 146 South. Rep. 836, to continue the jurisdiction of the Court over the cause from one term to the next.
In State ex rel. Davis v. City of Avon Park, 117 Fla. 556, 151 South. Rep. 701, the Court decided that in original proceedings in quo warranto, where petition for rehearing was filed within fifteen days but after the end of the term in which the judgment was rendered, the Court could entertain the cause further, after denying a petition for rehearing in the succeeding term, and vacate the order of denial.
There is no doubt that where a petition for rehearing is filed in one term, aS' was done in the above case, and the term ends without the application having been adjudicated, the Court may in the new term dispose of the matter. The' question is, whether, if the ruling is adverse to the petitioner and the mandate is sent down, the Court has the power to entertain a subsequent petition in the same cause.
We believe that having denied the petition for rehearing *42and the mandate having been issued to the lower court the litigation ended, and there was no justification for entertaining the matter further in the new term.
We are of the opinion, too, that the personnel of the Court having remained the same at the time both petitions for rehearing were denied, the last extraordinary petition for rehearing should not have been granted on the vote of five remaining members of the Court.
At the time of the denial of neither the first nor second application for rehearing was there impending an immediate change of personnel, although the retirement of one of the members of the Court was in prospect.
In the interest of speeding the work of the Court and finally deciding the dispute of litigants, it is important that a period may be placed somewhere in the process of appeals, and we think that it should have- been fixed at the point where the mandate was issued in October. Although the Court should strive to determine by a clear majority the issues presented to it, yet it is none the less important that the litigation between the immediate parties be decided as speedily ' as practicable, even by a divided opinion setting-no precedent for the future assistance of litigants and lawyers. The instant matter has been thoroughly presented and an honest effort has been made to meet both those ends.
There seems to be no sound reason to prolong the controversy. We conclude that the motion to dismiss and set aside the last order entered' in said cause on December 6, 1938, granting extraordinary petition fbr rehearing and recalling mandate should be vacated and that anything said by the Court in State ex rel. Davis v. City of Avon Park, supra, to the contrary be overruled.
It is so ordered.
Terrell, C. J., and Thomas and Chapman, J. J., concur. Br.own and Buford, J. J., dissent.