The watchman and southron. [volume] (Sumter, S.C.) 1881-1930, 1913-12-10
En- BANG DECISION.
COURT MAY USE ITS DISCRETION
AND NEED NOT ASK FOR
FILLING OF VACANCY.
En- Banc Session Called for Dominick
Case Decides an Important Ques-
ton.

Columbia, Dec. 6.-Following a
session yesterday of the Supreme
Court en- banc rendered a decision
that it is not required of the justices
or the court to certify to the COVER
nor the disqualification of a justice
| in any cause or causes so that he may
commission a special associate justice.
1.-The supreme court is therefore
empowered to exercise it's discretion
in any cause irrespective Of the
ground of disqualification and it is so
adjudged," concludes the decision.
The decision was given in the case
of Fred H. Dominick against A. w.
Jones, comptroller general. Mr.. Dom
mick presented bill for over $1,000
for services in the State bond test
suit.
The majority opinion was written
by Chief Justice Gary and concurred
in by ID. E. Hydrick and r. C. Watts,
associate justices and George L.
Prince, r. w. Memminger, John s.
Wilson, J. w. DeVore, T. S. Sease, II.
+. Rice, Frank B. Gary, T. H. Spain
and 1. w. Bowman, circuit Judges.
Il. B. Fraser, associate justice, wrote
a dissenting opinion.
The following is the majority .ie-
cisiOn:
ION the call of this case for hear
ing in the supreme court it appeared
that r. G. Watts, associate justice,
was disqualified from sitting, by rea-
son Of the fact that the appeal was
from an order by him.
'Thereupon the petitioner spond-
ent requested this court to certify 10
the. $500, governor the fact OF such
disqualification, in order that he might
commission some one learned in the
law to preside (sit?) in the place of
Mr.. Justice Watts.
1T appeared to the justices of this
court that there is involved a question
Of constitutional law, upon which the
,ntire court is not agreed, to wit:
Whether petitioner-respondent is en-
titled to demand as a right under the
provisions Of the constitution that the
place OF the disqualified justice be
filled-there being a quorum present,
without his attendance; whereupOn
the chief justice called the circuit
judges to the assistance Of the su-
preme court for the purpose of de-
termining said question.
When the case Of McAulay VS. Nc
Aulay was heard by the supreme court
it was composed Of five members, Mr.
Justice Woods being one of them, but
the opinion, which was rendered by
an evenly divided court, was not filed
until he had resigned.
THE appellants attorney filed a
petition for rehearing in that case
on several grounds, one of which was
that the court was without power to
render the decision for the reason
that it was then composed only Of
four justices.
THE reasoning Of the court in the
case hereinbefOre mentioned shows
conclusively that it is not incumbent
on the court or the justices thereof
to certify to the governor the disqual-
ificatiOn Of justice in any cause or
causes in order that he may 'imme-
diately commission specially the re-
quisite number of men learned in the
law for the trial and determination
thereof, whether the disqualification
arises from the fact of resignation,
when the unexpired term exceeds or
is less than one year, or where the
disqualification arises from any other
cause, unless there is not a quorum
present.
when the provisions of the consti-
tuition relative to this question are
considered in their entirety, it is ap-
parent that when three qualified
members Of the court are present
! quorum OF the court is present
and it is discretionary with the court
so composed or the justices thereof
whether they will certify the dis
qualification or temporary absence
of any other member or members Of
the court to the governor in order
that he may commission some one
learned in the law to preside in the
place Of the disqualified or absent
justice OF course the disqualin-
cation of a justice or justices does not
disqualify him or them from certify
ing the fact of his or their disqual-
! fication to the governor
Finally it is contended that al
though the court when composed of i
! quorum has the power to render