35 S.C. 150 | S.C. | 1892
Thereafter, on January 12, 1892, the following opinion, concurred in by Justices Pope and Wallace, was filed by
This is a motion to set aside the judgment heretofore rendered in this case, upon the ground that the court, as organized at the time of the hearing, as well as at the time of the rendition of said judgment, was not a constitutional tribunal invested with power to hear and determine said cause. The facts out of which this contention arises are undisputed, and are as follows: The late Chief Justice Simpson having died, on the 26th day of December, 1890, and the vacancy in that office thereby occasioned not having been filled, the Supreme Court was left with only tw'o members, the two surviving Associate Justices, and one of them being disqualified from hearing this case by relationship to one of the parties, his honor, Judge Wallace, was duly commissioned by his excellency, the governor, in place of the Associate Justice thus disqualified under the provisions of section 6 of article IY. of the Constitution ; and the court being thus constituted, heard this case in January, 1891, and rendered the judgment nowin question.
"While, therefore, the section under consideration does declare in general terms that the Supreme Court “shall consist of a Chief Justice and two Associate Justices,” this general declaration is
Notwithstanding the criticism which has been so freely indulged in, of the illustration used in Sullivan v. Speights (14 S. C., 358, supra), drawn from the constitutional quorum of the house of representatives, we still think the analogy is striking. The Constitution, in section 4, of art. II., declares that: “The house of representatives shall consist of one hundred and twenty-four members,” and in section 8, of the same article, that, “The senate shall be composed of one member from each county,” except Charleston, which shall be allowed two senators; and then in section 14, of the same article, it is declared that “a majority of each house shall constitute a quorum to do business.” Now, confining our attention to the house of representatives, is it not perfectly apparent that the language found in these constitutional provisions, is practically identical with a declaration that “the house of representatives shall consist of one hundred and twenty-four members, any sixty-three of whom shall constitute a quorum ;” and if such was the language, the analogy would be perfect. If the house consists of one hundred and twenty-four members, and a majority of the house is declared to be a quorum, it is practically the same thing as saying that any sixty-three members of the house shall constitute a quorum; and this is what has been said in the ease of the State v. Hayne and Mackey, 8 S. C.. 367.
A similar illustration may be drawn from the undisputed practice of the highest tribunal in this country. In the act of congress (Rev. Stat. U. S., sec. 673), providing for the organiza•tion of the Supreme Court of the United States, the language
The framers of the constitution must be regarded as having contemplated the contingency that at some time all of the members of the Supreme Court would not be in attendance, and, therefore, to provide for such a contingency, after declaring who should constitute the Supreme Court they immediately after-wards, and in the same sentence, qualified this general declaration by providing that any two of the constituent members of the court should constitute a quorum, so that the court might proceed with its business just as if the court were full. Any other view would, it seems to us, completely nullify the provision for a quorum. There is nothing whatever in the constitution indicating an intention that the provision for a quorum should only apply in case of a temporary absence of one of the members of the court; and, on the contrary, the language used is equally applicable where the failure of such member to attend is occasioned by death, as where it results from some temporary cause. Such, as we have seen, is the accepted view in relation to the highest
We are at a loss to perceive how the provision in section 11, of article IV., for filling all vacancies in the office of a Justice of the Supreme Court can affect, or in any way qualify, the distinct declaration that any two of the Justices shall constitute a quorum. For the framers of the constitution must be regarded as knowing that some time would necessarily elapse before a vacancy could be filled, and the very purpose of the provision for a quorum was to enable the tribunal to proceed with its business during such time as might elapse before the vacancy could be filled, so as to prevent delay in the transaction of the public business.
We are entirely satisfied, therefore, that, in any view of the question, where the office of Chief Justice has been vacated by death, the two surviving Associate Justices, constituting a quorum of the court, are fully competent to exercise all the powers conferred upon the Supreme Court.
In accordance with these views, the order refusing the motion to set aside the judgment in this case, because rendered by an illegal and incompetent tribunal, has heretofore been entered.
See 34 S. C., 112.