Slush v. Patterson ( 1947 )

During the period within which this case was submitted, considered and decided one of the six members of the Court was absent because of illness. The decree of the trial court was reversed by the concurrence of three Judges, two dissenting. Appellee raises the point, and presents it in an interesting manner, that a decree or judgment is not lawfully reversed except by the concurrence of a majority of the entire Court, — that three Judges in banc are not empowered to order a reversal.

The amendment to the Constitution of 1890 made in 1916, Sec. 145A, which increased the membership of the Supreme Court to six judges, contained the provision that "any four of whom when convened shall form a quorum." The commonly recognized definition of a quorum is that it is such a number of a body as is competent to transact business in the absence of the other members. 35 Words and Phrases, Perm. Ed., p. 672 et seq.

Acting upon this express authority, our Supreme Court during the entire course of the thirty years since the amendment has always proceeded with the business of the Court when as many as four members are present and participating, and in the same manner as if those present comprised the entire membership of the Court, and because during the thirty years there has never been a time when less than four members were present and participating, we have never within that period made a request upon the Governor to appoint a special judge for the Court. We have considered that the delay and expense incident to special appointments were a material consideration in the incorporation of the quoted language in the amendment, and we have conformed to its purpose.

In the year immediately next following the adoption of the amendment, the case of Brewer v. Browning, 115 Miss. 358, 76 So. 267, L.R.A. 1918F, 1185, Ann. Cas. 1918B, 1013, was decided with five judges participating — one Judge disqualified. The decree of the Chancery Court was reversed by the vote of three Judges, two voting for an affirmance. A case by case search through the eighty volumes of our official reports since that time will disclose that not less than a dozen cases have been disposed of under the same procedure, consistently followed for more than a quarter of a century.

It is too late now to consider that all those cases were decided without constitutional authority, because reversed by the vote of three instead of four Judges, and we hereby expressly bring forward and affirm what was said on the subject by Smith, C.J., in response to the suggestion of error in Dean v. State,173 Miss. 254, at pages 309 and 310, 160 So. 584, 162 So. 155.

We have re-examined the present case on the merits and are satisfied with what has been done with it.

Suggestion of error overruled.