Lombard v. Lombard
57 Miss. 171
Miss.
1879
Check Treatment
George, C. J.,

delivered the opinion of the court.

We are now asked to review and overrule the case of Gibbons v. Brittenum, 56 Miss. 232, decided at the April Term, 1878, in which a majority of this Court held that, under the provisions of the Code of 1871, the widow of a person dying intestate, and without children or descendants of them, was entitled to one-half only of the estate of her deceased husband. That case was argued twiсe at the bar, and in the last argument the judges remained of the opinion entertained on the first argument. Chief Justice Simrall, who was one of the majority of the court, having retired from the bench, the present case is brought up, presenting again the identical question involved and dеcided in the case above mentioned; and, on an elaborate and learned argument in opposition to the former ruling, Justices Chalmers and Campbell each adhere *175to bis former opinion. It is thus left to me, if the question be regarded as unsettled, to say whether, by concurring with Judge ‍​​‌​‌​​​​​​‌‌​​​​​​​‌​‌‌​​​​​‌‌‌‌​‌‌​‌​​‌​​‌​‌​​‍Chalmers, the former ruling shall be upheld, or, by concurring with Judge Campbell, it shall be overruled. The case of Gibbons v. Brittenum, ubi supra, on both the original hearing and the rehearing was argued with great ability by the counsel on both sides. It was twice considered by the court; and that this consideration was careful and painstaking is shown by the three opinions read, one being prepared by each judge. It is thus sharply presented to my consideration whether I shall give my assent to the overruling of a decision made by the court upon full argument at the bar, and on the gravest and most mature deliberation by the judges, merely because I may happen to differ from my predecessor as to the correctness оf the former ruling. I cannot consent to do this, when the question involved is like the one now in controversy.

That the former decision was made by а divided court rather increases than diminishes the duty to adhere to it, when a departure from it must result alone from my non-concurrence in the views of my predecessor, the other two judges participating in the former judgment adhering to the opinions then formed and expressed by them. Moreover, a majority of this court are invested by the Constitution with all the powers which can be exercised by a full bench. This Court has no distinct substantive power to declare a rule of law. It has power to render judgments, and, as an incident to this power, may, in the exercise of it, declare a rule, which becomes a precedent ‍​​‌​‌​​​​​​‌‌​​​​​​​‌​‌‌​​​​​‌‌‌‌​‌‌​‌​​‌​​‌​‌​​‍for similar cases. The power of a majority to render judgments is as ample as is that of the full bench ; and necessarily the incidental power of declaring the rule which governs the case must exist also. How much a division among the judges shall detract from the force and authority of the decision as a precedent, it is difficult to define. That a subsequent full bench, all concurring in the impropriety of the first ruling, would depart from it with less hesitancy in cases where a departure is allоwable than they would overrule a unanimous decision, is probable. But this does not help the difficulty here; for, if the former decision be over*176ruled, it will be by a majority only, one judge being thoroughly convinced that it is correct. And so, if a ruling by a majority is not to be regarded as settling the law, thе overruling of that decision by a mere majority will leave the law in that state of doubt and uncertainty, which is worse than a concededly wrоng settlement of it.

The decision we are asked to overrule announces a rule of property; and, though but recently made, it is old enough for persons to have acted on the faith of it. Even at this early day, I should hesitate to disturb it, even if we all agreed that it was clearly erroneous. But the question involved is a very doubtful one. This is evident from the división among ‍​​‌​‌​​​​​​‌‌​​​​​​​‌​‌‌​​​​​‌‌‌‌​‌‌​‌​​‌​​‌​‌​​‍the judges, and the different opinions entertained by the bar. I have given it my best consideration, and I cannot say that I am convinced that the former decision is erroneous. The question in its very nature presents inherent difficulties, the extracting of a certain legislative intent from repugnant provisions in a code of laws which went into operation uno flatu, and which was prepared for the express purpose of furnishing a body of laws for the people, containing nothing but oрerative provisions.

Considering the difficulty of the question, and the tenacity with which the late Chief Justice and the Associate Justices adherеd on the second argument, each to his opinion as expressed on the first argument; and considering, further, that each of the two judges nоw on the bench, who participated in that decision, is unshaken in the conclusion he then reached, it' would appear that the divеrse views so ‍​​‌​‌​​​​​​‌‌​​​​​​​‌​‌‌​​​​​‌‌‌‌​‌‌​‌​​‌​​‌​‌​​‍entertained must have resulted in a large degree from the peculiar intellectualism of the judges; and, if I were to form an opinion, it would be reached in the same way. For it seems to be a question incapable of settlement by reasoning, else it is certаin that the learned and able arguments at the bar, and the equally able and learned discussion by the judges, would have brought them into unanimity.

It would be а great evil if questions once settled on full argument and mature deliberation were subject to be reopened and decided differently upon every change in the members of this court, and consequent changes in the temper and *177mental organism of the judges. Settled rules, sо far as they relate to rights of property, on which the people may repose with confidence and security, are essential to the welfare of society. It ‍​​‌​‌​​​​​​‌‌​​​​​​​‌​‌‌​​​​​‌‌‌‌​‌‌​‌​​‌​​‌​‌​​‍is impossible to lay down any precise rule, which governs inflexibly a court of last resort, in adhering to or departing from a former decision. It is safe, however, to say that the rule of stare decisis, so far as it relates to decisions of this court, should not bе disregarded, except on the fullest conviction that the law has been settled wrong ; and even then it is better to leave the correction to the legislature in all cases where a departure from it would have the effect to disturb vested rights, resulting from transactions entered into under the law as settled. In such cases, a departure from former rulings should never take place except upon the сlearest necessity and the most assured conviction that the former ruling was erroneous. I do not see this necessity here, nor have I that assured conviction.

Speaking for myself alone, I would say that on constitutional questions, where the former decision refused a right resеrved to individuals as against the power of the government, or where it impaired the powers of the people or their representatives to prevent maladministration by their officers and agents, or sanctioned an alienation by the legislature of powers conferred for the public good, I should feel little hesitation in departing from it when 'satisfied of its incorrectness.

The judgment of the court below, being in accordance with the rule laid down in Gibbons v. Brittenum, ubi supra, is

Affirmed.