Ex Parte Dominick

The opinion of the Court was delivered by Mr. Ci-iiEE Justice Gary. On the call of this case for hearing in the Supreme Court, it appeared that the Honorable R. C. Watts, Associate Justice, was disqualified from sitting, by reason' of the fact that the appeal was from an order made by him. Thereupon the petitioner-respondent requested this Court to certify to the Honorable Cole. L. Blease, as Governor, the fact of such disqualification, in order that he might commission some one learned in the law to preside in the place of Mr. Justice Watts. *225 1 *224 It appeared to- the Justices of this Court that there is involved a question of constitutional law, upon which the entire Court is not agreed, towit: Whether petitioner- *225 respondent is entitled to demand as a right, under the provisions of the Constitution, that the place of the disqualified Justice being filled — there being a quorum present without his attendance; whereupon the Chief Justice called the Circuit Judges to the assistance of the Supreme Court for the purpose of determining said question. When the case of McAulay v. McAulay was heard by the Supreme Court, it was composed of five members — Mr. Justice Woods being one of them — but the opinion which was rendered by an evenly divided Court, was not filed until he had resigned. The appellant’s attorney filed a petition for a rehearing in that case, on several grounds, one of which was that the Court was without power to render the decision, for the reason that it was then composed only of four Justices. The reasoning of the Court in the case hereinbefore mentioned shows conclusively that it is not incumbent on the Court or the Justices thereof, to certify to the Governor the disqualification of a Justice in any cause or causes in order that he may “immediately commission specially the requisite number of men learned in the law for the trial and determination thereof,” whether the disqualification arises from the fact of resignation, when the unexpired term exceeds or is less than one year; or where the disqualification is temporary, as in the present case; or where the disqualification arises from any other cause, unless there is not a quorum present. When the provisions of the Constitution relative to this question are considered in their entirety, it is apparent that when three qualified members of the Court are present a quorum of the Court is present and it is discretionary with the Court so composed or the Justices thereof, whether they will certify the disqualification or temporary absence of any other member or members of the Court to the Gov *226 ernor in order that he may commission some one learned in the law to preside in the place of the disqualified or absent Justice. Of course, the disqualification of a Justice or Justices does not disqualify him or them from certifying the fact of his or their disqualification to the Governor. 2 Finally, it is contended that, although the Court when composed of a quorum has the power to render judgment in a cause, it has not the power to certify to the Governor, that there is a vacancy arising from the resignation of a Justice, in order that the Governor may commission someone to preside in the place of the resigned Justice. This proposition is untenable as it is inconsistent with the provisions of the Constitution and the construction placed upon them by this Court. The Supreme Court is therefore empowered to exercise its discretion in any cause, irrespective of the grounds of disqualification, and it is so adjudged. Messrs. Justices Hydrick and Watts and Circuit Judges Prince, Memminger, Wirson, DeVore, Sease, Rice, Frank B. Gary, Spain and Bowman concur.