Cook v. Leavenworth Terminal Railway & Bridge Co. ( 1917 )

The opinion of the court was delivered by

Dawson, J.:

All the matters urged in the petition for a rehéaring have been carefully considered by the court. They suggest nothing necessitating amplification or qualification of the opinion and judgment of the court as already rendered.

One matter, however, should be noticed. Counsel for appellant is in error in presuming that the opinion is merely that of the justice who wrote it and that the case has been slighted by the other justices — an error which is so common among petitioners for a rehearing that it may be well to set the matter right at this time.

The opinion has to be written by some one of the justices; the seven justices could not well join their voices in dictating to one stenographer, nor collaborate in the wielding of one pen. But the opinion and decision are the work of' the entire court arrived at after protracted consultation and independent consideration. No more than the mere rhetorical phrasing can be ascribed to the justice assigned to the task of setting down on paper the court’s opinion. He writes what he is directed by the court to write. Sometimes the justice assigned to the duty of writing the court’s opinion does not agree with that opinion; if his misgiving about its correctness is very serious he may and sometimes does dissent, after faithfully setting down the opinion of the court. An individual justice has no choice of the cases assigned to him; they are assigned by the Chief Justice in rotation — a rotation which began a generation ago and which is not departed from merely because of personal reluctance of some justice to write the court’s , opinion in a particular case. And when an opinion is written, its text, citations, logic and consistency are invariably scrutinized and liberally criticised by all the other justices; and not infrequently an opinion is rewritten to conform to their suggestions.

A consideration of this should make it clear how far beside the mark are an attorney’s doubts about a decision and opinion being a precise expression of the deliberate judgment of the entire court.

Rehearing denied.