Citizens Bank v. Heyward

142 S.E. 651, 144 S.C. 365, 1926 S.C. LEXIS 1

• Court: Supreme Court of South Carolina
• Decided: June 14, 1926
• Docket: 11731
• Status: Published

Opinions

The opinion of the Court was delivered by

Mr. Chief Justice Gary.

In the October, 1916, number of the Lawyer & Banker, there is an article by his Honor, Judge William H. Townsend, entitled “The Supreme Court of South Carolina,” from which we quote as follows:

“The Court of Equity in South Carolina existed until the adoption of the reconstruction Constitution in 1868 separate and apart from the Law Court. The Court of Equity began with the Governor and Council. Three Judges were afterwards clothed with the jurisdiction, and in 1808, two additional Judges were appointed, and a Court of Appeals in Equity was established. This perished in December, 1824, and the whole appellate jurisdiction in law and equity, as again later in 1859, was vested in the above-mentioned separate Court of Appeals composed of three Judges having only appellate jurisdiction. This in the changes of 1835 and 1836 underwent another revolution, and the equity jurisdiction in first and last resort was vested in four Judges, called Chancellors. To .prevent difficulties incident to this double appellate system, a Court of Errors was established in 1836, composed of all the Judges of both the Law and Equity Courts, sitting en banc, on constitutional questions, on questions where the Judges of either Court were divided in opinion, or where two Judges of either Court should require cases to be further heard. This practice of summoning all the Judges of the Superior Courts to sit en banc as a Court of Errors was retained under the Act of 1859 reestablishing a separate Court' of Appeals, and is found in the present Constitution of 1895, as follows:

“ Tn all cases decided by the Supreme Court the concurrence of three of the Justices shall be necessary for a rever sal of the judgment below, subject to the provisions hereinafter prescribed. Whenever, upon the hearing of any cause or question before the Supreme Court in the exercise of its original or appellate jurisdiction, it shall appear to the Justices thereof, or any three of them, that there is involved a question of constitutional law, or of conflict between the Constitution and laws of this State, and of the United States, or between the duties and obligations of her citizens under the same, upon the determination of which the entire Court is not agreed; or whenever the Justices of said Court, or any two of them, desire it on any cause or question so before said Court, the Chief Justice, or in his absence the presiding Associate Justice, shall call to the assistance of the Supreme Court all of the Judges of the Circuit Court: Provided, however, That when the matter to be submitted is involved in an appeal from the Circuit Court, the Circuit Judge who tried the cause shall not sit. A majority of the Justices of the Supreme Court and Circuit Judges shall constitute a quorum. The decision'of the Court so constituted, or a majorit}'" of the Justices and Judges sitting, shall be final and conclusive. In such case the Chief Justice, or in his absence the presiding Associate Justice, shall preside. Whenever the Justices of the Supreme Court and the Circuit Judges meet together for the purposes aforesaid, if the number thereof qualified to sit constitute an even number, then one of the Circuit Judges must retire; and the Circuit Judges present shall determine by lot which of their number shall retire. [Article 5, § 12.]’

“In the Act of 1859 establishing the Court of Appeals, provision was made that whenever, upon the hearing of any cause or question, either at law or equity, before the said Court of Appeals, it shall appear to the Judges of the same, or any two of them, that there is any question of constitutional law or of conflict between the Constitution and laws of the State, and of the United States, or the duties and ob ligations of the citizens under the same, it shall be the duty of the presiding appeal Judge to convene a Court of Errors for the determination of the same, which Court shall consist of all of the Judges of the Court of Appeals and of the Judges of law and equity, the decision of which Court, or a majority of the Judges sitting in the same, shall be final and conclusive, and the presiding Judge of the Court of Appeals shall also convene the said Court of Errors, at the request of any two of the Judges of the Court of Appeals, for the determination of any other cause or question to be submitted to them, and the decision of the said Court, or a majority of the members thereof, shall in all cases be final and conclusive; and whenever the said Court of Errors shall be convened, the presiding Judge of the Court of Appeals shall preside over the said Court.”

The question to be decided is whether under the Constitution a petition for a rehearing in a case in which the Court en banc has filed its opinion can be entertained and determined, on the ground that it is hot final and conclusive of the questions decided.

The petition for a rehearing addressed to the Supreme Court seeks to raise the same questions that were decided by the Court en banc, as shown by the following statement of Mr. Justice Cothran:

“The petition does not raise any questions which were not considered in the hearing and opinions filed, but insists that the majority of the Court en banc overlooked or misapplied the legal principles which lead to a contrary conclusion.”

It will be observed that the words “final and conclusive” in our Constitution of 1895 are the same as those that were construed by the Courts en banc prior to its adoption; and the decisions rendered prior to' the adoption of our Constitution were to the effect that the losing party was not entitled to a petition for a rehearing, for the reason that there was then a provision that the decision of the Court en banc was “final and conclusive.”

The rule of Court providing that the case should not be remanded until the expiration of ten days after the filing of the opinion is not in conflict with the provision of the Constitution that the decision of the Court en banc should be “final and conclusive.” After the filing of the opinion rendered by the Court en banc, the case could not be remanded prior to the expiration of ten days, unless the Court so directed. The rule of Court was not intended to override the provision of the Constitution that the decision of the Court en banc should be “final and conclusive,” but if such was its intention, it is unconstitutional. If the petition for a rehearing had raised a new or different question from that decided by the Court en banc quite another proposition would be presented. State v. Adams, 83 S. C., 149; 65 S. E., 220. That case shows that the decision of the Court en banc is “final and conclusive” of every question decided by such Court, as between the parties to the proceedings, even though the ruling then made may be subsequently overruled as between parties in another case.

If this Court en banc should decide that the former decision rendered by it was not “final and conclusive,” then a petition for a rehearing might be filed by the defendant as well as by the plaintiff, and the litigation in the case might be endless. And if the words “final and conclusive” are not given this effect, then it would be far better for the country if they should be struck out of the Constitution. Otherwise they would only keep the promise to the ear and break it to the hope. Petition dismissed.

Mr. Chiee Justice Watts, and 'Messrs. Justices BeEase and StabeER, and Messrs. Wieson, Henry, Featherstone, Bonham, and Townsend, Circuit Judges, concur. Mr. Justice Cothran, and Messrs. Mann, Dennis, DeVore, Shipp, and Mauedin, Circuit Judges, dissent.