In Re Thompson's Estate

On Petition for Rehearing. A petition for a rehearing is filed by the respondent. It is based on two grounds. The first relates to the composition or body of the court hearing and to whom the cause, without objections or question, was submitted for decision. The second relates to merits based on various reasons that on the record a wrong conclusion was reached reversing the judgment of the court below.

The first ground is founded on this: This court is composed of five members. Prior to, and until January 3, 1927, Justice GIDEON was a member of this court. His successor was elected in November, 1926, to take office on and after January 3, 1927. The calendar of cases to be heard at the regular October, 1926, term was split, some cases heard at that term, others set over to be heard in January, 1927. Justice FRICK, in November, 1926, and prior thereto, also was a member of this court, his term of office not expiring until January 3, 1931. He participated in the cases heard in October and November, 1926. Because of failing health and illness, he went to California about the middle of December, 1926. It was then known that, because of his illness, he would not be able to be present to participate in the cases to be heard in January, 1927, nor in the cases to be heard at the regular February, 1927, term commencing February 14th. Because thereof the Chief Justice, with the advice of his associates, about the time Justice FRICK departed for California, or shortly thereafter, directed the clerk of this court to inform several district judges of the state that they would be called to sit in place of Justice FRICK and participate in the cases to beard in January and February, 1927, some on certain dates, others on other dates. That was done. Among other district judges so notified, District Judge McCREA was notified. He was asked to sit in the cases to be heard on February 18, 1927. All of the district judges so notified sat and participated in cases heard on dates as notified. Judge McCREA, among other cases, sat and participated in this case, which was argued and submitted by the parties in open court February 18, 1927, to four regular members of this court and to Judge McCREA, District Judge, without objection or question of any kind as to the composition or body of the court, and without making any objections or raising any question of any kind as to Judge McCREA sitting and participating in the hearing and decision of the cause. Justice FRICK died in California, February 12, 1927, six days before this case was argued and submitted and taken under advisement. On February 19, 1927, the Governor of the state appointed Justice GIDEON to fill the vacancy created by the death of Justice FRICK. Justice GIDEON took the oath of office and qualified on February 21, 1927, and thereafter sat and participated in the hearings and decision of cases heard on February 23, and in all those heard thereafter. Judge McCREA continued to participate in the deliberations and consideration of this case and in the opinion heretofore rendered and filed December 31, 1927. Justice GIDEON did not participate therein.

Since the decision reversing the judgment of the court below was rendered by two regular members of this court and Judge McCREA concurring therein, two regular members dissenting, it is now urged that there was no member of this court "disqualified" within the meaning of our Constitution, and hence Judge McCREA was called in to sit and participate in the case without authority; and, as four members of this court constituting a quorum to hear the case were by their opinions equally divided, and no three concurring in the opinion reversing the judgment, it is contended that the judgment of the court below must be affirmed, or the case at least reheard and resubmitted to the five regular members of this court.

By the Constitution and by statute it is provided that a majority of the justices shall constitute a quorum to hold court and render a decision. Const. art. 8, § 2; Comp. Laws Utah 1917, § 1642. By statute it is further provided that three justices of the Supreme Court are necessary to pronounce a judgment, and, if three do not concur, the cause must be reheard. Comp. Laws Utah 1917, § 1644. By section 2 of article 8 of the Constitution it is further provided that:

"If a justice of the Supreme Court shall be disqualified from sitting in a cause before said court, the remaining judges shall call a district judge to sit with them on the hearing of such cause."

By section 13 of the same article it is provided:

"Except by consent of all the parties, no judge of the supreme or inferior courts shall preside in the trial of any cause where either of the parties shall be connected with him by affinity or consanguinity within the degree of first cousin, or in which he may have been of counsel, or in the trial of which he may have presided in any inferior court."

It is the contention that there can be no disqualification of any member of this court except as enumerated in section 13 referred to, and thus it is urged that neither illness nor any other disability or condition rendering a 20, 21 member of this court unable to be present on the hearing of a cause or causes or of participating therein constitutes a disqualification within the meaning of the Constitution. Since statehood, and for more than 30 years, when a member of this court was ill or otherwise unable to be present at the hearing of a cause, it has been the uniform practice to call in a district judge to sit in place of such absent member, unless the parties consented to submit the case to the remaining members of the court. It is evident that section 13 of article 8 of the Constitution was not intended to define nor to prescribe the term "disqualification," as used in section 2 of article 8 of the Constitution. Nor is the term otherwise by the Constitution defined or prescribed. We therefore must look elsewhere for that. We think the term is used in its natural and ordinary sense, and thus includes illness or a physical disability or other condition incapacitating a member of the court, and may even include the death of such member. 18 C.J. 1283; State v. Blair, 53 Vt. 24;Matter of Maguire, 57 Cal. 604, 40 Am. Rep. 125; Kelley v. Edwards, 38 Mich. 210; Gas Products Co. v. Rankin,63 Mont. 372, 207 P. 993, 24 A.L.R. 294. It further is contended that, when Justice FRICK died on February 12, 1927, a vacancy of his office occurred, and that the remaining justices were without authority to call in or to permit a district judge to sit with them until the vacancy was filled by appointment of the Governor of the state and the appointee qualified. We think that contention is fully answered in the case of Kelley v. Edwards, supra.

However, though it be assumed that Judge McCREA was not a judge de jure, he certainly was a judge de facto. That he was qualified as a district judge to sit in the Supreme Court in some contingencies is not disputed. That he 22 was designated by the Supreme Court to sit, and that he sat and participated in the cause in pursuance thereof, is also not disputed. That the cause was argued and submitted to this court with Judge McCREA sitting and participating therein, with knowledge of the respondent and of his counsel of the illness and death of Justice FRICK, and that Judge McCREA sat in his place, and neither respondent nor his counsel making any objection or raising any question as to Judge McCREA sitting and participating in the cause and in the decision until after the decision was rendered and filed, is also admitted. Under such circumstances Judge McCREA was at least a judge de facto, if not a judge de jure, and the decision concurred in by him is as binding on the respondent as though Judge McCREA had been a judge de jure.State v. Holmes, 12 Wash. 169, 40 P. 735, 41 P. 887; Case v. State, 5 Ind. 1; State v. Bloom, 17 Wis. 521;Masterson v. Matthews, 60 Ala. 260; Donnell v. Hamilton,77 Ala. 610; Ball v. United States, 140 U.S. 118,11 S. Ct. 761, 35 L. Ed. 377; McDowell v. United States, 159 U.S. 596,16 S. Ct. 111, 40 L. Ed. 271; Ex parte Ward, 173 U.S. 452,19 S. Ct. 459, 43 L. Ed. 765; People v. Tidwell, 5 Utah 88, 12 P. 638.

Lastly, it is urged that, though Judge McCREA was qualified to sit and participate in the case on the hearing, yet, after the vacancy caused by the death of Justice FRICK was filled by appointment, and when the appointee had qualified, 23 there was neither authority nor occasion for Judge McCREA longer to participate in the case nor in the decision, nor in the petition for a rehearing. We think all that is fully answered against the contention of the respondent in the case of Gas Products Co. v. Rankin, supra, and in Woodbury v. Dorman, 15 Minn. 341 (Gil. 274), and by the cases therein referred to.

Three regular members of the court participating in the decision heretofore filed concur in the foregoing views, and are of the opinion that Judge McCREA is qualified to continue to act and participate in the disposition of the petition for a rehearing on merits. Judge McCREA expresses no opinion as to the power and authority of this court calling him under the circumstances to sit and participate in the case or as to his legal right to continue to participate in the disposition of the petition for a rehearing; he leaving the determination of such questions to the four regular members of this court who participated in the case. Three of such members having decided such questions in the affirmative and one dissenting, Judge McCREA participated in the disposition of the petition on merits. As to such disposition, two regular members, with whom Judge McCREA concurs, are of the opinion that the petition should be denied; two regular members dissenting. Such conclusion is reached on the ground that all questions relating to merits presented by the petition were fully considered and discussed in the opinions heretofore filed, and with respect to them the court is now, as it then was, divided. The petition is therefore denied.

CHERRY, J., dissents.