Ex Parte Dominick

¶1 dissenting. On the call of this case for hearing in the Supreme Court it appeared that Honorable R. C. Watts, Associate Justice of this Court, is disqualified from sitting in the cause by reason of the fact that the appeal is from an order made by him.

¶2 Thereupon the petitioner-respondent requested this Court to certify to the Honorable Cole. E. Blease, as Governor, the fact of such disqualification, in order that he might commission one learned in the law to sit in place of Mr. Justice Watts.

¶3*227 1 *226 It appeared to the Justices of the Supreme Court that there is a question of constitutional law involved, towit: Is *227 it necessary for the Supreme Court to certify to the Governor the disqualification of a Justice so as to have the place of the disqualified Justice supplied, or is it optional with the Court? It further appeared that, upon the decision of this question the entire Court is not agreed, and the Circuit Judges having been called to the assistance of the Court, after hearing argument the Court en banc decides.

¶4 The Constitution gives the right to litigants in the Supreme Court to have the place of a disqualified Justice filled by executive appointment. This right may be waived as any other right may be waived. The Constitution provides, art. V, sec. 8: “In case all or any of the Justices of the Supreme Court shall be thus disqualified or be otherwise prevented from presiding in any cause or causes the Court or the Justices shall certify the same to the Governor of the State, and he shall' immediately commission, specially, a requisite number of men learned in the law for the trial and determination thereof.” Inasmuch as the Constitution provides, sec. 2, art. V, that three Justices shall constitute a quorum, it is claimed that it is only necessary to fill a place where the number is reduced below three. The number of Justices who are qualified to hear a cause may be less than a full bench of five when vacancies occur. Section 11 of article V provides “all vacancies in the Supreme Court or inferior tribunals shall be filled by elections, as herein prescribed: Provided, That if the unexpired term does not exceed one year such vacancy may be filled by executive appointment.” When there are vacancies and the term exceeds a year the places can not be filled by appointment, but when one or more Justices are disqualified the Constitution provides for an appointment.

¶5 It is true the words “otherwise prevented from presiding” are general enough to cover all cases, but the specific words *228 that immediately precede this general expression are disqualifications.

¶6 The rule is well stated in Sutherland on- Statutory Construction, section 268, “Where there are general words following particular and specific words the former must be confined to things of the same kind.”

¶7 It seems to- be, therefore, that the general words refer to disqualifications. This construction gives effect to every provision of the Constitution.

¶8 1. A vacancy for more than a year shall be filled only by election, and no appointment can be made to fill a vacancy in any case if the term exceeds one year.

¶9 2. The place of a disqualified Justice shall be filled by appointment.

¶10 3. Three may be a quorum.