DUNCAN v. THE RECORD PUBLISHING CO. et al

September 21, 1927. The opinion of the Court was delivered by

MR. JUSTICE BLEASE.

The appeal in this case was first heard in this Court on the 10th day of November, 1925. At the hearing, the Court consisted of Associate Justices Watts, Cothran, and Marion and Hon. R.O. Purdy, Acting Associate Justice. After the hearing, and prior to the disposition of the cause, Mr. Justice Marion resigned on January 1, 1926, but was appointed and commissioned by his excellency, Hon. Thomas G. McLeod, Governor of the State, to act as an Associate Justice in all causes which had been heard by him and which had not been determined. Mr. Associate Justice Marion wrote an opinion affirming the judgment of the Court below, and Mr. Justice Watts concurred therein. Mr. Justice Cothran wrote an opinion reversing the judgment and ordering the entry of a nonsuit, as provided by Rule 27. With that opinion, Mr. Acting Associate Justice Purdy concurred. The opinions were not filed. If they had been filed, the result would have been an affirmance of the judgment below, since the Court was equally divided; two of the Justices favoring affirmance, and two favoring reversal. Hutchinson v. Turner, 88 S.C. 318; 70 S.E., 410, 806. Owings v. Graham, 120 S.C. 408; 113 S.E., 279. Thereafter the Justices who participated in the hearing of the appeal ordered a reargument of the cause to be had at the June, 1927, term of the Court; the opinions mentioned before being lodged with the Clerk of Court for the information of counsel and not as the judgment of the Court. See Owings v. Graham, supra. Pursuant to the order of rehearing, the appeal was reargued on June 14, 1927.

We have examined carefully the record in the cause, and the able and interesting opinions of Justices Marion and Cothran. It is our opinion that the opinion of Acting Associate Justice Marion ably and correctly disposes of all the questions raised by the appellants, and that it plainly and properly sets forth all the legal principles applicable to the facts of the cause. An effort on the part of this Court to attempt to improve upon what he has so well said would be unnecessary and fruitless. We are entirely satisfied with and adopt his opinion as the opinion of this Court. That opinion was as follows:

MR. ACTING ASSOCIATE JUSTICE MARION: This is an action for libel, brought by the plaintiff, T.C. Duncan, against the Record Publishing Company and E.W. Robertson. The plaintiff recovered, and from judgment on verdict the two defendants have appealed upon exceptions, which assign error in the refusal of defendants' motions for nonsuit, for a directed verdict, and for a new trial, and in the charge to the jury. The exceptions, together with the Circuit Judge's charge, should be set out in the report of the case.

The material facts out of which the action arose are as follows:

The plaintiff, Duncan, was a member of the State Senate. On March 23, 1923, he was appointed a member of a commission of seven known as the Canal Commission, created by an Act of the General Assembly, approved March 26, 1923 (33 St. at Large, p. 828). This commission was vested "with full and exclusive power and authority to take full control of the interest of the State, * * * in the Columbia Canal property, * * * in the cause entitled `The State of South Carolina v. Columbia Railway, Gas and Electric Co.'" then pending in the Courts. The defendant Robertson was an officer of and the owner of a controlling interest in the stock of the Columbia Railway, Gas Electric Company, hereinafter referred to as the Street Railway Company and was also president of a bank.

On March 28th, two days after the approval of the Act creating the Canal Commission, and five days after his appointment on the commission, the plaintiff, Duncan, addressed a letter to the defendant Robertson, making application for a loan of $25,000, which application was refused. During the year following the refusal of this loan the Canal Commission held a number of meetings, and had before it offers of settlement of the canal litigation submitted by the Street Railway Company and by Stone Webster, who had obtained from the defendant Robertson an option on the controlling stock in the Street Railway Company. These offers had been published in the newspapers, publicly discussed, and a settlement advocated by the Chambers of Commerce of Columbia and of Winnsboro, and by the signers of a petition bearing more than 1,000 names, which had been presented to the Canal Commission. The offers of the Street Railway Company had been rejected, but no decision as to the proposal of Stone Webster had been made public, when on the morning of March 11, 1924, the plaintiff. Duncan, arose from his seat in the Senate "to a point of persona and official privilege" and delivered a speech on the "cana situation," in the course of which he charged that this situation had been handled by the press of Columbia in a manner to put out "the most appalling propaganda ever put on in South Carolina"; that Stone Webster, "aided and abetted by the powerful newspapers of Columbia," had come into the situation as a "Trojan horse" for "the Columbia concern"; that the Street Railway Company was a company that had "feasted on its betters, by taking advantage of the financial situation," etc. The address contained references to "the gentleman who sits in the offices in the back of the Loan Exchange Bank" and to a "Columbia octopus," and proclaimed the speaker's intention "to make the men who have been feeding on dead men's bones take their medicine."

On the day the foregoing address was delivered by the plaintiff, Duncan, the Columbia Record, an afternoon newspaper, published on the front page the following:

"Senator Duncan is a member of the Canal Commission. He was appointed a member of the commission on March 23, 1923. The Act creating the commission was passed by the General Assembly during the session of 1923, and was approved March 26, 1923. Senator Duncan's letter is dated March 28, 1923. The loan solicited was not granted. The first meeting of the Canal Commission was held in Columbia, April 13, 1923.

"Union, Mar. 28 6 P.M.S.C.

"After five days return to T.C. Duncan, Union, S.C. To Mr. E.W. Robertson, % Loan Exchange Nat. Bank. Columbia, S.C.

"Personal.

"T.C. Duncan, Union, S.C. To E.W. Robertson, Columbia, S.C. March 28, 1923.

"Dear Sir: I would like to secure a loan of $25,000.00 — for three years — interest payable semiannually. I have security worth six times the amount of loan desired.

"I will be glad for you to have your representative to inspect the property that I would offer as collateral — I can make loan from a bank, but I do not desire the constant renewal of paper. I have Building Loan stock that will mature in three years, by means of which loan will be paid at maturity.

"If there is any one in the State who could handle the above matter, you are the individual — I would thank you for your early reply.

"Very truly, [Signed] T.C. Duncan."

This action for libel is based upon the foregoing publication. Plaintiff alleged that "in and by the publication hereinabove set forth, and the circumstances attending and surrounding the same, the defendants purposed and intended to charge and to convey to the public the charge that this plaintiff was susceptible to bribery; that he was by said letter inviting the defendant E.W. Robertson to approach and influence him in the discharge of his duties on said Canal Commission in a corrupt way; that plaintiff was dishonest and corrupt in the discharge of his public and official trusts and duties; that he was betraying the interests of the public and of the State in his official position; that plaintiff's integrity was impeached, and that he was unworthy of the confidence of the public and of the business world." The defendant, Robertson, by his answer, admitted the publication, but denied the innuendoes alleged, and pleaded, by way of self-defense and privilege, that he made the publication to defend himself against plaintiff's defamatory attacks and that the publication made was true. The answer of the Record Publishing Company presented substantially the same defenses.

The appellants' first general proposition is that the facts alleged and proved, when subjected to the correct legal test or tests applicable, do not make out a case of actionable defamation. To that contention, according to appellants' grouping, Exceptions 1, 4, 5, and 6 are directed, and the contention itself is broadly presented by Exception 1, which imputes error to the trial Court in refusing defendants' motion for nonsuit and for a directed verdict, upon the ground that plaintiff had "failed to prove that the publication alleged was libelous per se or by reason of special circumstances surrounding the publication," and had, "therefore, failed to prove a cause of action for defamation" against defendants.

In support of that position it is argued that the publication itself contained "no defamatory statement or implication, suggestion, or insinuation"; that the publication itself fully disclosed the situation and occasion and contained all the relevant facts, and that no extraneous facts and circumstances (inducement), which coupled with the language used would affect the construction and render it actionable, had been alleged or proved; that construing the words published, as they must be construed, in their ordinary and popular meaning, in the light of the occasion and all of the relevant circumstances disclosed by the publication itself, the publication was not reasonably susceptible of the defamatory meaning attributed thereto by the innuendo of plaintiff's complaint; and that it was, therefore, within the province of the Court to determine as a matter of law that the publication was not actionable as a libel and the duty of the Court to hold that the defendants were entitled to a nonsuit or directed verdict. The publication, as we have seen, consisted of a facsimile of Duncan's letter to Robertson, soliciting a loan, the statement that Duncan was a member of the Canal Commission, the date of his appointment, the date of the approval of the Act creating the Canal Commission, the date of Duncan's letter, the date and place of the first meeting of the Canal Commission, and the statement that the loan solicited by Duncan was not granted.

In the view that the publication itself disclosed the occasion and contained all the facts relevant to the matter published, the validity of appellants' conclusion that it contained no implication or suggestion of improper conduct on Duncan's part, and was not reasonably susceptible of the meaning ascribed thereto by the innuendo of the complaint, might well be doubted. But in addition to the facts contained in the publication itself the plaintiff alleged and adduced evidence to establish the significant and relevant facts (1) that the Canal Commission, upon which Duncan had been appointed a member just five days prior to the date of his letter to Robertson, was vested with "plenary authority with respect to" certain litigation then pending between the State of South Carolina and the Columbia Railway, Gas Electric Company; (2) that Edwin W. Robertson, to whom said letter was addressed, owned a controlling interest in said company, and (3) that on the very day of the publication Duncan from his seat in the State Senate had made a bitter and sensational public attack upon Robertson and his company and upon the press of Columbia. Certainly, when the matter contained in the publication is read in the light of the foregoing significant facts, it would seem scarcely open to argument that the publication was reasonably susceptible of the meaning which the innuendo of the complaint ascribed thereto, viz., that Duncan had invited the defendant, Robertson, to influence him in the discharge of his official duty by the extension of a personal loan, and had thereby been guilty to all intents and purposes of the crime of soliciting a bribe. For the Court to have held otherwise would, we think, have required the indulgence of a presumption for which unfortunately there is no basis in the common experience of mankind — that the average reader of the modern newspaper lives and thinks in the rarified atmosphere of "the pure, to whom all things are pure."

It is further contended that there was neither allegation nor proof that the publication effected a libelous purpose "by conveying to those to whom it was sent" the defamatory meaning charged (Hubbard v. Furman University, 76 S.C. 514; 57 S.E., 479), and that in the absence of such allegation and proof the cause of action for libel was not established. No demurrer was interposed upon the ground that the allegations of the complaint were insufficient, and the testimony of readers of the publication, offered by plaintiff to establish that it was understood in the defamatory sense charged, was excluded by the Court upon defendants' objection. The Court excluded the testimony offered upon the ground that the question was one for the jury, "because they could tell what impression the writing conveyed as well as any individual could." If, as we have held, the writing as published was capable of conveying the defamatory meaning charged, the evidence adduced to establish its publication and the circumstantial setting thereof was, we think, sufficient to support, the inference of fact that such defamatory meaning was actually conveyed to the readers of the publication. The motions for nonsuit and for a directed verdict could not, therefore, have been properly granted upon the ground of failure to allege and prove that a libelous purpose was effected.

It is virtually conceded by appellants that the foregoing conclusions are required, if the Circuit Judge's view of the law, as embodied in the portions of his charge to which Exception 4 is directed, is correct. Exception 4 imputes error to the Circuit Judge in charging as follows:

"Where the words written and published of another are capable of two meanings, one of which is slanderous and the other is not, it is the duty of the jury to ascertain from the evidence, by the greater weight thereof, taking into consideration all the facts and surrounding circumstances attending the uttering of the publication, in what sense the words were uttered or published. In ascertaining the sense in which the words were published and the meaning intended to be conveyed and conveyed to readers, the jury are entitled to take into consideration both the ordinary meaning of the words, the time, place, setting, and surrounding circumstances attending and accompanying the publication thereof, including also the official position and duties of the party about whom the publication was made at that time, as they may find the same to be from the evidence by the greater weight thereof, and ascertain and determine from all of the evidence what meaning should be given to the publication. It is for the jury to determine from the evidence, by the greater weight thereof, the sense in which words were published."

The objections urged to the foregoing instruction are, in substance, that it erroneously makes the defendants' "secret intention" and "the sense in which the words were published" the test by which to determine the question of libel or no libel, and authorizes the jury "to take into consideration the time, place, setting, and surrounding circumstances" without regard to whether "these were known to and appreciated by the readers" of the publication. We think the objections are hypercritical. The charge was in accord with the law as thus stated in Newell on Libel and Slander (4th Ed.), pp. 736, 737, § 672:

"Wherever the words sued on are susceptible both of a harmless and an injurious meaning, it will be a question for the jury to decide which meaning was in fact conveyed to the hearers or readers at the time of the publication. * * * The plaintiff may give evidence of surrounding circumstances from which a defamatory meaning can be inferred. * * * If, however, the words are capable of the meaning ascribed to them by the innuendo, and there is any evidence to go to the jury that they were used with that meaning, then it will be for the jury to decide whether in fact the words were understood in that sense by those who first heard or read them."

That statement is in substantial accord with the law as stated and applied by this Court in several cases (Hubbard v. Furman University, 76 S.C. 510; 57 S.E., 478. Black v. State Co., 93 S.C. 475, 476; 77 S.E., 51; Ann. Cas., 1914-C, 989. Nunnamaker v. Smith's, 96 S.C. 294; 80 S.E., 465), and with the views expressed and applied by the Supreme Court of the United States in Baker v. Warner, 231 U.S. 594; 34 S.Ct., 175; 58 L.Ed., 389, and in Washington Post Co. v. Chaloner, 250 U.S. 293; 39 St. Ct., 448; 63 L.Ed., 989.

It is true that, if the extraneous circumstances relied upon to give a defamatory meaning to a publication were unknown to the readers of the publication, such circumstances could, of course, have no probative force to establish that the published writing conveyed a libelous meaning to such readers. But in correctly charging generally that the jury were entitled to take the surrounding and attendant circumstances into consideration, "in ascertaining the sense in which the words were published and the meaning intended to be conveyed and conveyed to readers," the Court was not bound to assume that evidence, if any, as to attendant circumstances which were unknown to the readers of the publication, would be given a probative force to which it was not entitled. And even if it be conceded that the general principle embodied in the charge as given might properly have been qualified by an instruction to the effect that in determining whether the publication conveyed a libelous meaning only attendant circumstances which were known to the readers of the publication could be considered (25 Cyc., 357; 17 R.C.L., 314, § 54), in the absence of a specific request for such an instruction, the Court's failure so to charge cannot be held for reversible error. Mrs. Hall's Cafeteria v. Insurance Co., 128 S.C. 214; 122 S.E., 580. Strickland v. Moskos, 131 S.C. 249; 127 S.E., 265. Langley v. So. Ry., 113 S.C. 54; 101 S.E., 286.

It is further contended that the Circuit Judge erred (Exception 5) in charging as follows:

"To constitute an actionable libel, the writing must make a false charge or insinuation against the plaintiff; it must be inspired by malice; it must tend to impeach the reputation of the plaintiff, and to injure him in his office, business, or in the estimation of the public. To render a defamatory statement actionable, it is not necessary that the false charge be made in a direct, open, and positive manner. A mere insinuation is as actionable as a positive assertion, if it is false and malicious, and the meaning is plain."

The charge was a correct statement of the law, 17 R.C. L., pp. 312-314, §§ 53-55. Turner v. Brien, 184 Iowa, 320; 167 N.W., 584; 3 A.L.R., 1589, 1590. Appellants do not contend to the contrary, but say that it was inapplicable, in that the evidence was not reasonably susceptible of an inference that defendants had made any defamatory insinuation concerning the plaintiff, and that the foregoing charge was tantamount to an instruction that the jury could find in defendants' publication insinuations for which they "would be legally liable." That contention is essentially the same as is embodied in the defendants' request to charge, the refusal of which is made the basis of Exception 6, which request was as follows:

"The publication alleged in the complaint in this action was a letter written by the plaintiff to defendant Robertson, and if you find by the preponderance of the testimony that the circumstances stated in connection with the receipt of the letter are correctly stated, and that no comment was made thereon, you cannot find from the publication itself that the defendants were actuated by the motives alleged in the complaint, or that they intended to give to the publication the meaning alleged in the complaint. There must be some other evidence to establish the truth of the allegation of such meaning and motive."

If, as we have held in disposing of Exceptions 1 and 4, the issue, as to whether the publication, in the light of the extrinsic facts established, bore and conveyed the defamatory meaning charged, was properly submitted to the jury as an issue of fact, it is apparent that appellants' position as to the errors assigned by Exceptions 5 and 6 is untenable. Upon that issue the charge give (Exception 5) was sound and clearly applicable, and the request to charge refused (Exception 6) was properly refused as involving an invasion of the jury's province.

The second general proposition advanced by appellants is that the publication alleged to be libelous "was absolutely true" and that its "literal truthfulness" was a complete defense, "irrespective of the occasion of the publication or the motive or purpose of the publisher." Under this general proposition appellants group their Exceptions 2, 7, 8, and 9.

Exception 2 makes the contention that the Circuit Judge "should have granted a nonsuit and directed a verdict," upon the ground that "the testimony admits only of the inference that the publication by defendant was absolutely true, so that plaintiff has failed to establish any cause of action for defamation, as alleged." Exception 7 imputes error to the trial Judge in charging as follows:

"If you find that charges or insinuations against this plaintiff, if any, made in the publications made by defendants in this case were true, then your verdict as to such charges or insinuations found to be true must be for defendants. I charge you this because in a case of this character the truth of the publication, and of any charges or insinuations made therein, is a complete defense. And, even though evil motives may have prompted defendants to publish the truth, this will not make them liable. And it makes no difference whether either or both of the defendants did not know, at the time that the publication or charges were made, that they were the truth."

The specifications of error are (a) "that the publication made no charges nor insinuations against plaintiff, and there was no evidence of any charges or insinuations made by defendants aliunde," and (b) "that proof of the literal truthfulness of a publication is a complete defense, regardless of any insinuation sought to be placed thereon by innuendoes alleged or otherwise," etc. That the publication was "absolutely true," in the sense that each and every statement therein contained was literally true, we do not understand to be disputed. But it does not follow that such literal truth was a complete defense, as appellants contended. The plaintiff's cause of action for libel was predicated upon the charge that the publication, literally true as it was, was intended to convey and conveyed to the readers thereof the defamatory meaning attributed thereto by the innuendo of the complaint. The trial Court having properly held as a matter of law that the publication was capable of the construction placed upon it by the plaintiff, and the issue of fact as to whether the statement was published and understood in the sense charged having been properly submitted to the jury, it was necessary that the truth of the publication, pleaded by way of justification, in order to constitute a complete defense, should be established in the sense that the publication was alleged to convey a defamatory meaning. 36 C.J., p. 1233, § 194, and the numerous cases cited in footnote 29. Turner v. Brien, 184 Iowa, 320; 167 N.W., 584; 3 A.L.R., 1590. Snyder v. Tribune Co., 161 Iowa, 671; 143 N.W., 519. Julian v. Kansas City Star Co., 209 Mo., 35; 107 S.W. 496. The rule is thus stated in Newell on Libel and Slander (4th Ed.), p. 766, § 699:

"A plea is bad which falls short of a justification of the slanderous words in the sense imputed to them by the declaration, for the plea necessarily confesses that such sense is correctly imputed. * * * The whole libel must be proved true, not a part merely. * * * Justification must be of the very charge it is attempted to justify, and it is not permissible to set up a charge of the same general nature, but distinct as to the particular subject."

The author of the note to Hutchins v. Page, 31 L.R.A. (N.S.), at page 140, states the law as follows:

"In order that the truth constitute a complete defense, it must be established in the sense in which it is charged. As said by Lord Chief Justice De Gray in R. v. Horne, Cowp., pt. 2, p. 687, a man cannot defame in one sense, and defend himself in another. Hence the sufficiency of evidence to justify a defamatory matter depends upon the question whether the facts are charged with an innuendo, since if this is the case, according to the weight of authority, it is necessary to allege and prove the truth of the charge according to the imputation of the innuendo, or the defendant will fail in his attempt to justify, assuming, of course, that the words are capable of the meaning imputed to them, and that the defendant seeks to justify according to that meaning. Jones v. Townsend, 21 Fla., 431; 58 Am. Rep., 676. Stowell v. Beagle, 57 Ill., 97; s. c. on subsequent appeal, 79 Ill., 525. Downey v. Dillon, 52 Ind., 442. Samples v. Carnahan, 21 (Ind.) Ill. App. 55 (51 N.E., 425). McGuire v. Vaughan, 106 Mich., 280; 64 N.W., 44. Fidler v. (Delavan) Delevan, 20 Wend. (N.Y.), 57. Wahle v. Cincinnati Gazette Co., 4 Ohio L.J. (Wkly. Law Bul.), 61. Gage v. Robertson, 12 Ohio, 250. Nott v. Stoddard, 38 Vt., 25; 88 Am. Dec., 633. Royce v. Maloney, 57 Vt., 325."

Thus, "where the innuendo imputes to the facts a charge involving dishonesty, corrupt or criminal intent, it is necessary, in order to justify the charge, not only to allege the truth of the facts, but also their truth according to the intent imputed to them." Gage v. Robinson, 12 Ohio, 250; and see Clifton v. Lange, 108 Iowa, 472; 79 N.W., 276. Paxton v. Woodward, 31 Mont., 195; 78 P., 215; 107 Am. St. Rep., 416; 3 Ann. Cas., 546. Since appellants do not contend, but, on the contrary, expressly disclaim, that they sought to justify by showing the truth of the charge which plaintiff's innuendo imputed to the publication, it is clear that their contention that the "literal truthfulness" of the publication constituted a complete defense is untenable and Exceptions 2 and 7, which are predicated upon the validity of that contention, must be overruled.

The instruction complained of in Exception 8 was to the effect that "the benefit as a defense of the truth of matters published may be lost, if the matter published was a private transaction with which the public had no legitimate connection or concern, and the manner and style of publication made a false insinuation against the plaintiff, which would render the matter libelous." That instruction followed the broad statement that, "where the facts printed and published are true, no liability for libel will arise from the mere fact that the truth stated is liable to suggest damaging inferences concerning such plaintiff, or from the mere fact that from the truth so stated natural inferences of a defamatory character might be drawn which would be untrue" — the purport of which statement was to clarify and emphasize the point, which the trial Judge had previously made in his charge, that "the inference of hurt, or injury, arising out of a statement of facts, in order to become actionable, must be such an inference as is drawn or established by the general consent of men." Upon analysis it will be perceived that the modification here complained of does not, as appellants suggest in argument, go to the extent of applying the doctrine announced by certain Courts (Hutchins v. Page, 75 N.H. 215; 72 A., 689; 31 L.R.A. [N.S.], 132. Burkhart v. North American Co., 214 Pa., 39; 63 A., 410), that truth is not a defense to a civil action for libel, unless published "upon a lawful occasion, in good faith, and for a proper motive." The Circuit Judge merely said, in effect, that truth would not be a defense if the matter published was not privileged and if it "made a false insinuation against the plaintiff which would render the matter libelous" — a proposition which is not open to valid criticism, when considered in the light of the rule that the plea of truth must extend to the defamatory meaning alleged to have been conveyed by the publication and of the Court's previous instruction to the effect that the truth of the publication, in the sense that it conveyed any such defamatory meaning, "is a complete defense," "even though evil motives may have prompted" the publication. Exception 8 must therefore be overruled.

In this phase of the case relating to truth as a defense, appellant's next contention (Exception 9) is that the trial Court erred in charging that, "where a libelous publication consists of making a charge of a crime and a party seeks to justify on the ground that the charge is true, the law of this State requires him to prove the truth of his charge — that is to say, the truth of the crime — beyond a reasonable doubt just as in criminal cases." The error assigned is not that the foregoing instruction was an incorrect statement of the law (Gill v. Ruggles, 95 S.C. pages 94, 95; 78 S.E., 536. Burckhalter v. Coward, 16 S.C. 440; but see Salley v. Globe Indemnity Co., 133 S.C. 342; 131 S.E., 616; 43 A.L.R., 971), but that defendants "did not justify in this case by seeking to prove the truth of a crime," but, on the contrary, by their answer "expressly denied the allegations of the complaint" that they "had charged plaintiff with the commission of a crime." Hence, as we understand appellants' point, it is contended that the charge was irrelevant and misleading. The defendants pleaded the truth of the "facts" published, and the truth of the publication "by way of justification and complete defense" to the action. Upon the issue thus raised, clearly the charge complained of may not be pronounced erroneous upon the ground that it was inapplicable. While the defendants did disclaim any intent to charge plaintiff with the commission of a crime, they did not withdraw or abandon the plea of truth "by way of justification and complete defense" — a plea which, as we have seen, could not be sustained without meeting the facts published in the sense imputed to them by plaintiff's innuendo. But, in any event, if the charge was directed to an issue which the Court improperly assumed to be made by the pleadings, "it was incumbent on defendants' counsel to call the Court's attention to its mistake." Gill v. Ruggles, 95 S.C. 100; 78 S.E., 540. That was not done, and Exception 9 must be overruled.

Appellants' third general proposition is that the trial Court misapprehended and erroneously applied to the facts of this case the law of "self-defense and privilege." For the purpose of presenting their position upon this question, appellants in argument have grouped their Exceptions 3, 10, 11, 12, and 13. The main contention made is, in substance, that the Circuit Court erred in holding and in charging that the defense of privilege, based upon the right of self-defense and upon the right to publish and comment upon matters of public interest, interposed by both of the defendants, was not a good defense in bar, but was available and effective "only in mitigation or reduction of damages." By reference to the Judge's charge it will be seen that the facts as to the defamatory attack upon the defendant by the plaintiff, Duncan, in the State Senate, on the day of the alleged libelous publication by defendants, upon which the defense of privilege was based, were as fully stated in the charge as pleaded in the defendants' answers. Those facts were pleaded "as privilege and justification, as well as in mitigation." The portions of the charge complained of in Exceptions 10, 11, and 12, standing alone, would unquestionably be open to the criticism leveled against them, if such portions of the charge could properly be construed to constitute the whole of the Court's charge upon the defense of privilege.

Thus, in the instruction referred to in Exception 10, the Court charged that, "if a publication of a libel by a defendant against a senator is provoked by a speech made by the senator in the Senate, such speech by the senator, although made in the Senate, may be taken into consideration by the jury in mitigation or reduction of any damages caused to the senator by the defendant's publication, if the defendants' publication was libelous." In the instruction referred to in Exception 11, the Court charged that "the defense of self-defense and privilege, as I have heretofore set them forth, would apply in this case in mitigation or reduction of damages, if the publication by defendants was libelous, even though plaintiff's (defendants') publication resulted from a speech made by plaintiff during a session of the Senate, of which he was a member, and in the Senate chamber"; and, in the instruction complained of in Exception 12, the Court charged that "if the defendants, by the publication in evidence, charged the plaintiff with having solicited a bribe, while a public officer, to influence his official conduct, then the charge and publication would be libelous, and the burden would then be upon defendants to defeat liability by proving the truth of the charge, or to prove any facts or circumstances, which under the law as stated by me in this charge would mitigate or reduce any amount of damages recoverable by plaintiff."

We think, however, that a fair consideration of the charge as a whole, consecutively read, clearly discloses that in the portions of the charge excepted to the trial Judge was endeavoring to give the defendants the full benefit of the proposition of law advanced by them in their sixth request — that the plaintiff's senatorial privilege "did not deprive defendants of their right to defend themselves or of their privilege to answer his attack" — and to cover the contention made in the answer that the facts upon which defendants based their claim of privilege were to be considered not only in the aspect of justification or as a compete defense, but in mitigation of damages as well. See Section 426, Vol. I, Code 1922. The portion of the charge referred to in Exception 10 was followed, and that referred to in Exception 11 was preceded, by the following:

"In an honest endeavor to vindicate himself and his own interests, a defendant is often privileged to make statements which would otherwise be regarded as defamatory. If a party's good name is assailed in a newspaper, he may reply, defending himself, and, if his reply is made in good faith, without malice, and is not unnecessarily defamatory of his assailant, it is privileged. Even though false, a publication which is fairly in answer to a libel, if published without malice and in good faith, for the purpose of repelling a charge, is privileged, and is not actionable.

"An action for libel is not to be encouraged for publication made while parties are mutually engaged in making publications about each other. A publication made in the course of a newspaper war, and bearing some reasonable relation to the subject-matter of the controversy, is qualifiedly privileged, and it is for you to determine from the evidence applying to the evidence the rules of law stated by me, whether or not, under the circumstances of this case, the publication made by defendants was qualifiedly privileged, and, if it was privileged, then you cannot award the plaintiff a verdict, unless you find that the defendants were actuated by express or actual malice in making the publication, and have abused their privilege."

After giving the instruction referred to in Exceptions 10, 11, and 12, the Court charged:

"It is a legal defense to an action for libel if it is shown that the publication was true, or if the circumstances under which the publication was made were such as to render it right and proper that the defendant should make the publication in question. In such cases, the publication is said to be privileged; and, if privileged, although it may be false, still its publication on such an occasion is excused for the sake of the common convenience and welfare of society at large." (Italics added.)

And subsequently the Court charged:

"If from a defendant's point of view strong words seem to be justified, he should not be held liable for using them, unless the jury find from the evidence that what he published was malicious and inconsistent with good faith." (Italics added.)

In view of the foregoing instructions it cannot be said that the trial Court limited the scope and sufficiency of the defense of "self-defense and privilege" to mitigation of damages. Under the well-settled general principles that the charge must be considered as a whole, that the refusal of an instruction covered by others given is not error, and that it is not improper to state the law as applicable to particular questions in separate instructions which are consistent with each other, the portions of the charge complained of in Exceptions 10, 11, and 12 cannot be pronounced erroneous. 38 Cyc., 1598. Union Bleaching Finishing Co. v. Barker Fuel Co., 124 S.C. 458; 117 S.E., 735. Sanders v. Hayes, 128 S.C. 181; 122 S.E., 572.

It is further contended that this defense of privilege, interposed by both defendants, was so conclusively established by the evidence that the trial Judge should have charged, "under the circumstances in this case, that the publication made by defendants was qualifiedly privileged" (Exception 13) and should have directed a verdict for defendants upon that ground (Exception 3). In his able dissenting opinion in the case Switzer v. Am. Ry. Express Co., 119 S.C. 242, 248; 112 S.E., 110, 113 (26 A.L.R., 819), Mr. Justice Cothran thus states the questions of fact involved in determining the issue as to whether a communication or publication is qualifiedly privileged:

"Was the `communication,' alleged to have been slanderous, one of qualified privilege; this question depending upon the further question whether or not, the `occasion' being shown to have been one of qualified privilege, the occasion was so abused, or its bounds so exceeded by ill motive, as to deprive the communication of the qualifiedly privileged character which is presumed by the fact of its utterance upon a qualifiedly privileged occasion?"

In Newell on Libel and Slander (4th Ed.), pp. 315, 316, § 277, it is said:

"The effect, therefore, of showing that the communication was made upon a privileged occasion is prima facie to rebut the quality or element of malice, and casts upon the plaintiff the necessity of showing malice in fact; that is, that the defendant was actuated by ill will in what he did and said, with a design to causelessly or wantonly injure the plaintiff; and this malice in fact, resting as it must upon the libelous matter itself and the surrounding circumstances tending to prove fact and notice, is a question to be determined by the jury The question whether the occasion is such as to rebut the inference of malice, if the communication be bona fide, i one of law for the Court; but whether bona fides exist is one of fact for the jury. And the jury may find the existence of actual malice from the language of the communication itself, as well as from extrinsic evidence."

In the case of Switzer v. American Ry. Express Co., 11 S.C. 242, 243; 112 S.E., 111; 26 A.L.R., 819, this Court said:

"While, as stated by Judge Earle in the case of Smith v. Youmans, supra (3 Hill, 85), the privileged `occasion affords a prima facie presumption to rebut the inference of malice, and the plaintiff would fail without further proof the presumption thus raised is a presumption or inference of fact sanctioned by law, to be applied by the jury under appropriate instructions of the Court."

It is true, where the evidence is open to no other reasonable inference of fact than that the occasion, in the absent of actual malice, was privileged, the Court might proper so instruct the jury, leaving to the jury only the question is whether the plaintiff had sustained the burden of shown the existence of actual malice. Or, as pointed out in the majority opinion in the Switzer case, where the evidence susceptible of no other reasonable inference than that (the occasion was privileged, and (2) that the occasion was not employed in bad faith and with actual malice, for the purpose of making a defamatory communication, it would be the duty of the Court to hold that the defense of qualified privilege was established and to grant a nonsuit or direct a verdict for the defendant.

In the case at bar the Court modified defendants' fifth request which contained the language, "A publication made in the course of a newspaper war, and bearing some reasonable relation to the subject-matter of the controversy, is qualifiedly privileged, and I charge you that under the circumstances in this case that the publication made by defendants was qualifiedly privileged, and that you cannot award the plaintiff a verdict, unless you find that the defendants have abused their privilege," by charging as follows:

"A publication made in the course of a newspaper war, and bearing some reasonable relation to the subject-matter of the controversy, is qualifiedly privileged, and it is for you to determine from the evidence, applying to the evidence the rules of law stated by me, whether or not, under the circumstances of this case, the publication made by defendants was qualifiedly privileged, and, if it was privileged, then you cannot award the plaintiff a verdict, unless you can find that the defendants were actuated by express or actual malice in making the publication, and have abused their privilege."

In the light of the principle enunciated by the foregoing authorities, we do not think the failure to charge, as requested, "that the publication made by defendants was qualifiedly privileged," may be held for reversible error, even in the possible view that under the facts of the case the Court might properly have held and charged that the occasion was privileged. And since the only effect of holding by the Court that the occasion was privileged would have been to require the placing on plaintiff of the burden of showing "express or actual malice" — a burden which, in effect, was as clearly devolved on plaintiff by this instruction as modified and by the general charge as if the Court had expressly assumed and held that the occasion was privileged — we are of the opinion that the point raised by Exception 13 is without substantial merit and must be overruled. And unless the Court could have held as a matter of law that the facts in evidence were susceptible of no other reasonable inference than that the publication was made without actual malice — and it is not seriously contended in argument that under the facts here the trial Court could properly have so held — it follows that there was no error in refusing the motion for nonsuit and for a directed verdict, upon the ground that the defense of privilege had been conclusively established by the evidence, and Exception 3 must therefore be overruled. See Switzer v. American Ry. Express Co., supra. Smith v. Youmans, 3 Hill, 88, 89. Miller v. Kerr, 2 McCord, 288; 13 Am. Dec., 722; Newell on Libel and Slander, pp. 315, 316, § 277. Denver Pub. W. Co. v. Holloway, 34 Colo., 432; 83 P., 131; 3 L.R.A. (N.S.), 699; 114 Am. St. Rep., 171; 7 Ann. Cas., 840; and editorial notes and cases cited and reviewed, 3 L.R.A. (N.S.), 697, and Sunley v. M.L. Ins. Co., 132 Iowa, 123; 109 N.W., 463; 12 L.R.A. (N.S.), 93.

Appellants' fourth general proposition is that the trial Judge erred in charging the law of damages. It is contended (Exception 14) that the Court erred in charging as follows:

"If the jury find from the evidence, by the greater weight thereof, that the publication in question was libelous, then the plaintiff would be entitled to recover such sum by way of actual damages as the jury in its discretion may think proper to compensate him for his injury, including the humiliation which he may feel and may have suffered by reason of the publication, and the jury are instructed that, if they find the publication was libelous, the plaintiff would be entitled to substantial damages."

The error assigned is (a) that the charge was in respect of matters of fact, and so violated Section 26 of Article 5 of the Constitution; (b) that the amount of damages was in the sound discretion of the jury, etc.; and (c) that the charge was peculiarly prejudicial, "in view of plaintiff's failure to offer testimony of any actual damage," and "in view of defendants' testimony going to mitigation and reduction of damages." It is further contended (Exception 15) that the Judge, in violation of the constitutional inhibition, intimated to the jury his opinion that plaintiff's actual damages should be increased, and not diminished, and that plaintiff should be awarded punitive damages, by charging as follows:

"If you find that the defendants, or either of them, have been proven guilty of publishing a libel, as defined in this charge, against the plaintiff, then, in determining the amount of damages to which the plaintiff may be entitled, you should take into consideration all the facts and circumstances of the case as disclosed by the evidence, the nature and character of the charges, the language, manner, and style in which such charges were made or published, and their tendency, the occasion on which they were published, the extent of their circulation, the probable effect of the publication upon those to whose attention it came, and its natural and probable effect upon the plaintiff's personal feelings, and his standing in the community and in public estimation; and you may, in reaching your verdict, take into consideration, in mitigation or reduction of damages, any and all facts and circumstances disclosed by the evidence which tend to show that the article was published under the influence of a provocation therefor recently given by plaintiff to the defendants or either of them; and if, under the instructions in this charge, the plaintiff is entitled to recover, you should award him such sum by way of damages as will fairly and adequately compensate him for any insult to him, including any pain and mortification and mental suffering inflicted upon him, and any injury to his standing as a man, citizen, or public officer in the public estimation; and the plaintiff would also be entitled to recover such punitive or exemplary damages as you may find to be proper under all such facts and circumstances as may be proven by the evidence, in case you find from the evidence that such defamatory publication or libel was wantonly or maliciously published with intent to injure the plaintiff."

Reading the foregoing portions of the charge, referred to in Exceptions 14 and 15, together, it is sufficiently apparent, we think, that the applicable law as to damages was fully and fairly charged, and that the instructions are not open to valid criticism, unless it can be said that the Judge trenched upon the facts in stating that, if the jury should "find the publication was libelous, the plaintiff would be entitled to substantial damages." In their printed argument, that is the gist of the objection urged by appellants to the Court's charge upon this phase of the case.

It is argued that since, under the well-established rule in actions for libel, "the amount of damages is peculiarly within the province of the jury" (17 R.C.L., 429, § 188. Gambrill v. Scholey, 93 Md., 48; 48 A., 730; 52 L.R.A., 87; 86 Am. St. Rep., 414; note 86 Am. St. Rep., 422. Holmes v. Jones, 147 N.Y., 59; 41 N.E., 409; 49 Am. St. Rep., 646), the instruction to the effect that upon the basis of a finding by the jury that the publication was libelous "plaintiff would be entitled to substantial damages" was an improper expression of opinion by the Court as to a question of fact which was exclusively for the jury. It is to be borne in mind that the sense in which the publication was alleged by plaintiff to be libelous was that it conveyed a charge of corruption and crime. The Judge's definitions of libel had been directed to the issue thus raised by the pleadings. Hence a finding by the jury that the publication was libelous would be equivalent to a finding that the publication had falsely and maliciously charged plaintiff with the commission of a crime.

Since "any printed or written statement which falsely 23, 24 and maliciously charges another with the commission of a crime is libelous per se" (17 R.C.L., 265, § 5. Smith v. Bradstreet, 63 S.C. 530; 41 S.E., 763), and since, from the publication of defamatory matter which is libelous per se, general damages are presumed to result "by inference of law" and "are not required to be proved by evidence" (37 C.J., 91, § see Lorick v. Bank, 74 S.C. 185; 54 S.E., 206; 7 Ann. Cas., 818), it is apparent that the words "substantial damages" were here used by the Circuit Judge, as they were used in Wilson v. Palmetto National Bank, 113 S.C. 508, 512; 101 S.E., 841, in contradistinction to "nominal damages." The question, therefore, is whether, upon the assumption that the jury found that plaintiff had been falsely and maliciously charged with the commission of a crime, the Court could properly charge that he would be entitled to recover "substantial" damages. In the case of Lorick v. Bank, supra, in a concurring opinion, Mr. Justice Woods said:

"The liability of a bank to its depositor for substantial damages, temperate in amount, for refusing to pay his check, not exceeding his credit, is generally, if not universally, recognized. And it is not necessary to recovery that there should be proof of special damages, the law presuming that the result is injury to the credit of the depositor from the general experience of men in such transactions. It is the application of the rule established in cases of slander, the refusal to pay the check being a declaration against the solvency and correct business dealing of the drawer."

In Wilson v. Bank, supra, which, like the Lorick case, was an action for damages for improper refusal to honor a check, the Court (Mr. Justice Hydrick) said:

"The next assignment of error is in charging the jury that the damages awarded in a case like this should be something more than nominal; that they should be substantial, but temperate in amount. The error complained of is in the use of the word `substantial.' It appears that `substantial' was used in contradistinction to `nominal'; that is, damages which are so small as scarcely to be entitled to the name, and such as are given for a mere technical invasion of a right, when no real or actual loss or injury has resulted. The authorities agree, and this Court has held, that, in a case like this, plaintiff is entitled to something more than nominal damages, but that the recovery should be temperate in amount."

In Lee v. McCrory Stores Corporation, 117 S.C. 236, 238; 109 S.E., 111, which was an action for slander, in passing on an exception which charged that "the presiding Judge invaded the province of the jury in instructing them that they must find general damages substantial in amount, if they found that defendant's employee had used the language set forth in the complaint," this Court said:

"The case of Wilson v. Palmetto National Bank, 113 S.C. 508; 101 S.E., 841, is full authority for the charge as made. The charges made the same distinction as to substantial and nominal damages in both cases. This is a stronger case than the Wilson case, in that an overdraft may be the result of carelessness. Stealing cannot be the result of a mistake. This exception is overruled."

In the light of the foregoing expression of this Court, 25, 26 we do not think the use by the trial Judge of the words "substantial damages" can soundly be held for reversible error. Conceding that under our practice the use of the word "substantial" in a charge of this character is not to be commended, and that the idea to be conveyed could more accurately and safely be expressed by the words "more than nominal damages," where, as here, it appears that the word "substantial" was used in that sense, if defendants desired a fuller and more precise statement, an appropriate request for such an instruction should have been preferred. Mrs. Hall's Cafeteria v. Insurance Co., 128 S.C. 214; 122 S.E., 580. Nor do we think there is merit in appellants' further contention in this connection that the charge as given eliminated consideration of the defense of self-defense and privilege and of the strong evidence offered by defendants in mitigation. The instruction was based upon the hypothetical finding that defendants had published a libel as charged, and was followed by instructions which very clearly authorized the jury to "take into consideration, in mitigation or reduction of damages, any and all facts and circumstances which tend to show that the article was published under the influence of a provocation therefor recently given," etc.

But appellants say that in charging as to the facts and circumstances in mitigation the Judge used the permissory "may," while in charging as to the facts and circumstances which the jury might take into consideration in determining the amount of damages he used the mandatory "should" (Exception 15), and thereby unfairly discriminated against the defendants. We think an objection predicated on this refinement in the use of words is manifestly hypercritical, and rests upon too tenuous a basis to warrant a finding of reversible error. Exceptions 14 and 15 must therefore be overruled.

Appellants' fifth general proposition is that the Circuit Judge committed reversible error in refusing defendants' motions for a new trial upon the ground that the verdict was "capricious and the result of prejudice" (Exception 16) and "was grossly excessive" (Exception 17). It is contended that the action of the jury in awarding a verdict for the full amount asked for within a few minutes after the case had been submitted strongly indicates that it was the result of caprice and prejudice, and that the jury took no account of defendants' pleas in justification and mitigation of damages, and that the amount of the verdict is so "excessive as to impel the inference" as a matter of law that it was "the result of caprice, passion and prejudice, or other considerations not founded in the evidence" (Exception 18).

It is well settled that this Court, confined by constitutional limitation to the correction of errors of law in cases of this character, has no power to review and reverse the ruling of the Circuit Judge refusing to grant a new trial upon the ground that a verdict was excessive, unless the appeal record discloses and warrants the conclusion, as a matter of law, "that the Circuit Judge's refusal to grant a new trial amounted to manifest abuse of the discretionary power exclusively vested in him by law to grant new trial for or on account of matters of fact. Southerland v. Davis, 122 S.C. 511, 515; 115 S.E., 768. Huggins v. Railroad Co., 96 S.C. 267, 278; 79 S.E., 406. Bing v. Railroad Co., 86 S.C. 530; 68 S.E., 645. Or, as was said by this Court in Union Bleaching Co. v. Barker, 124 S.C. 458; 117 S.E., 735:

"This Court is without jurisdiction to review a judgment upon the ground alone that the verdict upon which it is based is excessive or contrary to the evidence. If upon a motion for a new trial it should be made to appear, as a matter of law, an inference from admitted facts, or of facts admitted for the purpose of the motion, that the verdict is excessive, this Court may review a contrary ruling by the trial Court."

In numerous decisions this Court has said that, in order to authorize the review and correction of a judgment upon this ground, "it should appear that the verdict is so excessive as to warrant an inference that it was the result of caprice, or some improper or corrupt motive." Leppard v. W.U. Telegraph Co., 88 S.C. 388; 70 S.E., 1004, and other cases cited in Strickland v. Moskos, 131 S.C. 247; 127 S.E., 265.

But, obviously, before an inference can be drawn as a matter of law that a verdict was excessive or that it was so excessive as to reveal caprice, prejudice, or passion, the facts must be "admitted," as pointed out in Union Bleaching Co. v. Barker, supra, or, if not admitted, it must be assumed, in so far as the evidence warrants, that the facts are as found by the jury. In the case at bar, since the material facts are not admitted, and the jury has determined all issues of fact in favor of the plaintiff, it must be assumed that the facts are those established by the jury's verdict; and the only question which this Court is authorized to consider is whether the Circuit Judge committed error of law in not granting a new trial upon the ground that the facts are susceptible of no other reasonable inference than that the verdict was so excessive as to indicate that it was the result of prejudice, caprice, or passion, or other consideration not founded on the evidence. In his order refusing the defendants' motion for a new trial upon the ground that the verdict was excessive, the Circuit Judge thus states his views and conclusions as to the facts:

"There is sufficient evidence to sustain the verdict on both these points (libelous publication and actual malice), and the verdict is not against the preponderance of the evidence. The jury having found that the publication was both libelous and prompted by actual malice toward plaintiff, the mere fact that they found the full amount sued for does not show that they acted under the influence of either passion or prejudice, or that they failed to consider the plea of justification, mitigation, or truth. Whether or not such plea was established by the evidence was for the jury to determine; and, if the alleged provocation was established, it was for the jury to determine the extent of the mitigation to be allowed therefor, under the circumstances proven. It is my duty to determine whether or not the verdict was unjust or excessive under the evidence. * * * There is no exact measure of the damages to be awarded in a civil action for libel. In such a case as this they should include compensation for the injury done the reputation of a Senator, who inherited a good name from a revered bishop, and had been repeatedly honored by the suffrages of those who knew him best — something the value of which was most difficult to be measured. Many who heard, or read, of the libel would remember it, and overlook or forget the vindication. * * * Compensation is not the only element in the verdict. There was evidence to show actual malice on the part of defendants, and the defendant Robertson stated his individual worth was `around $300,000,' and, when asked how much more, replied, `That is enough for this case.' The jury did not think payment of $50,000 excessive punishment for a malicious libel published by one so able to pay. * * * Upon a fair consideration of the case, I do not consider the verdict either unjust or excessive. I see no evidence to indicate that the verdict was the result of either caprice or prejudice."

However difficult it may be to understand the mental proceses of jurors in arriving at a verdict, and however widely this Court may differ with the Circuit Judge in the conclusion, reached in the discharge of the duty exclusively imposed upon him by law, that the verdict of a jury was not against the preponderance of the evidence, if the facts in this case are assumed to be the facts established by the jury's verdict — that the plaintiff was the reputable and innocent victim of the defendants' express malice in publishing, without justification or excuse, a defamatory charge to the effect that he had been guilty of the foul crime of soliciting a bribe, etc., as alleged — then it is manifest, we think, that it may not soundly be held that the facts are susceptible of no other reasonable inference than that the verdict was so excessive as to indicate that it was the result of prejudice, caprice, or passion, or other consideration not founded in the evidence. If so, the contention that the Circuit Judge committed error of law in refusing the motion for a new trial upon the ground that the jury's award of damages was excessive cannot be sustained.

It is further contended, however (Exception 19), that the Circuit Judge's failure to grant a new trial was due to his misconception of "his power and duty," in that he held that, "in order to authorize the trial Judge to grant a new trial on account of excessive damages in a libel case, `the damages should be outrageous, out of all proportion to the injury, flagrantly extravagant,' or that it should appear that the jury `were not indifferent between the parties.'" It is true that in his order refusing the motion for a new trial the Circuit Judge, upon the authority of certain of our decisions, used the expressions quoted to define or describe what might be considered excessive damages in a libel case. It cannot be held that his use of those expressions was inaccurate; but, if it could, it does not appear that his conclusion upon the motion for new trial was controlled, or in any wise influenced, thereby. The Judge's conclusion, as we think is clearly indicated by the extracts from his order above set out, was predicated upon the view that under the facts the verdict was neither moderately nor outrageously excessive.

It follows that all exceptions must be overruled, and the judgment of the Circuit Court is affirmed.

It is the judgment of this Court that the judgment of the Court of Common Pleas for Richland County be and the same is hereby affirmed.

MR. CHIEF JUSTICE WATTS, and MESSRS. JUSTICES STABLER and CARTER concur.

Per Curiam.

The appellants have asked for a rehearing of this appeal, and in their petition therefor have also requested that upon such rehearing all of the Judges of the Circuit Court be called to the assistance of the Supreme Court to take part in the decision of this cause, pursuant to the provisions of Section 12 of Article 5 of the Constitution.

The appellants have also filed "Reasons and Argument in Support of Petition for Rehearing." In this "argument," the appellants take the position that, if it appears to the Justices of this Court, or any one of them, that there is involved in the appeal a question of constitutional law, "upon the determination of which the entire Court is not agreed," it is mandatory that the Chief Justice "shall call to the assistance of the Supreme Court all of the Judges of the Circuit Court." The request of the appellants, and the question they make, are of considerable importance, and the Court deems it proper to pass directly thereon at this time.

The Court en banc — composed of the Justices of this Court and all the Circuit Judges — was created by the Constitution of 1895. We quote from Section 12 of Article 5 thereof, as originally adopted, such portions as are deemed necessary now:

"* * * Whenever, upon the hearing of any cause or question before the Supreme Court, * * * it shall appear to the Justices thereof, or any two of them, that there is involved a question of constitutional law, * * * upon the determination of which the entire Court is not agreed, * * * 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. * * *"

By Joint Resolution of the General Assembly, at its session of 1910, the question of amending Section 12 of Article 5 was submitted to the qualified electors at the ensuing general election. By an act of that body, at its session of 1911, it was recited that the proposed amendments had been adopted by the people and the General Assembly ratified the same. In the official printed Code of 1922, the provision before quoted from the Constitution of 1895 appeared in this changed form:

"* * * Whenever, upon the hearing of any cause or question before the Supreme Court, * * * it shall appear to the Justices thereof, or any three of them, that there is involved a question of constitutional law, * * * upon the determination of which the entire Court is not agreed, * * * 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. * * *"

The appellants assert that Section 12 of Article 5 was incorrectly printed in the Code of 1922; that the word "three," as used in the provision last quoted, was improperly inserted therein; that the language "any three of them" should not so read, but should read "any of them" and that accordingly, in and by the terms of Section 12 of Article 5, when "it shall appear to the Justices" of this Court, or any of them," that a question of constitutional law is involved in a cause pending in this Court, it is required that the Court en banc shall be called.

The claim set forth rests upon the contention that the amendment of Section 12 of Article 5, voted favorably by the people in the general election of 1910, as submitted to them by the Joint Resolution of that year, was only to strike out the word "two" in the provision quoted from the original section of the Constitution, and that the purpose of the amendment as proposed by the General Assembly, voted by the people, and ratified thereafter by the General Assembly, was to require the calling of the Court en banc in a cause where a question of constitutional law was involved, at the instance of only one Justice of this Court, and not at the instance of at least three of the Justices, as it appears to be necessary from the wording of the section in the printed Code of 1922.

Pointing to both the Joint Resolution of 1910 (No. 594, Acts 1910, p. 1063), and the ratifying Act of 1911 (No. 58, Acts 1911, p. 117), the appellants particularly call our attention to this discrepancy; that in the respective parts of both of these legislative enactments, where it is declared what amendments were proposed and ratified, it was declared that the word "two," as found in the original section, was to be stricken out and the word " three" was to be inserted in lieu thereof; but that the language used in the other parts of the enactment, when it was stated how Section 12 of Article 5 should read "when amended," did not contain the word "three," but only the words " any of them" appeared. And it is urged that a proper construction of both the Joint Resolution and the ratifying Act requires that it be held that the Constitution was so amended as to require a calling of the Court en banc at the request of one Justice, when this Court is not entirely agreed upon a constitutional question which may be involved in a cause. It is to the proper construction of the said Joint Resolution and the ratifying Act that we now direct our attention.

We agree with the following legal proposition advanced by the appellants:

"Provisions of a Constitution regulating its own amendment, otherwise than by a convention, are not merely directory, but are mandatory, and a strict observance of every substantial requirement is essential to the validity of the proposed amendment." 12 C.J., 688.

These "substantial requirements" for the amendment of our Constitution are set forth in Sections 1 and 2 of Article 16 of the Constitution. There is no showing before this Court that there was failure in any respect to comply with either of the requirements made in the sections and article last mentioned as to the amendments of Section 12 of Article 5 now under consideration. In the absence of any such showing, this Court will presume, of course, that the General Assembly, and all other officials charged with duties in connection with the submission, adoption, and ratification of the amendment, discharged such duties in the manner required by the Constitution.

The inquiry, therefore, turns to an examination of the Joint Resolution of 1910 and the ratifying Act of 1911. These enactments are so much alike, except wherein changes in language were necessary, that hereafter it will only be required to refer to the Joint Resolution. The real question is this: Which language in the Resolution must control — that contained in the part of the Resolution where it was declared what amendment was to be made, or that set out in the clause which stated how the section sought to be amended should read "when amended"?

The appellants contend for the view that the language contained in the "when amended" clause must control, and they cite in support of their position the case of Bush v. Western Union Telegraph Co., 93 S.C. 176; 76 S.E., 197, seemingly in harmony with the position taken in certain language of Mr. Justice Hydrick, who delivered the opinion of the Court in that case, which we quote:

"* * * But we think the question to be decided is: Which part of the Act shall control and be looked to to ascertain the legislative will, the part which declares what amendments were to be made, or the part which sets out the section, as it read, `when amended'? There can be no doubt of the power of the Legislature to amend an Act or section by declaring, in the amending Act, what words shall be inserted or omitted, or, it may declare, in the amending Act, that the Act to be amended shall be amended so as to read as follows, and then set out the Act as amended, or it may, as it undertook to do in this case, combine the two methods, and declare in the first part of the amending Act what amendments are intended, and also set out the Act, as it will read `when amended.' But, when there is a conflict in the provisions of the amending part of the Act and the Act `as amended,' to which must we look to find the legislative intent? This question naturally suggests another: To which part of the Act would a legislator most naturally look, in considering it on its passage, to determine its intent and effect, and whether he would favor or oppose its passage? It requires only a moment's reflection to answer: The Act as it would read `when amended.' It follows, therefore, that we can ordinarily look to that part of an amending Act with greatest certainty of finding the legislative will, and, therefore, that part of the Act should ordinarily control."

The appellants, in line with the quoted expressions from the Bush case, argue that, in the instance of the Resolution under consideration, the words "any of them," appearing in the "when amended" portion of the Resolution, are controlling over the words "any three of them" set out in the declaratory part of the enactment, since both legislators and qualified electors were more likely to have read the "when amended" clause, and voted for the proposed amendment with the idea in mind that the section would be so amended as to permit one Justice to require the calling of the Court en banc. The principles referred to by Mr. Justice Hydrick must be given due regard in construing the intention and effect of the Joint Resolution, but they are not absolutely conclusive, for as that distinguished jurist himself said if the same opinion and in the same connection:

" We do not mean, however, to say that this is always so or to lay it down as a hard and fast rule, applicable to al cases; for it is conceivable that a case might arise in which the evil to be remedied, or the defect in the statute to be amended, the amendment proposed, and the Act as amended, when considered altogether in the light of all the circumstances and the rules of statutory construction, might lead to the conclusion that the legislative will is to be found in the amending part of the Act. If so, of course, that must control, for it is the intention only which we seek." (Italics ours.)

Supporting these last-stated declarations of Mr. Justice Hydrick, to the effect that this Court should seek first of all, in construing a legislative enactment, the legislative intent and will (and, we may interpolate, the intent and will of the people as expressed at the ballot boxes), we call attention to what was said by Mr. Justice Watts, now Chief Justice, speaking for this Court, in Heintish v. Floyd, 130 S.C. 434; 126 S.E., 336:

"While the Legislature, in proposing a constitutional amendment, is, in many respects, not subject to the rules controlling ordinary legislative action, still the fundamental purpose in construing an amendment is to ascertain and give effect to the intent of its framers and of the people who adopted it; and the Court must keep in mind the object sought to be accomplished, and the evils sought to be remedied. 12 C.J., 700." (Italics ours.)

And very much analogous to the expressions of both Justices Hydrick and Watts, is the language of Mr. Justice Marion in Kirkland v. Allendale County, 128 S.C. 541; 123 S.E., 648:

"Another familiar general principle of interpretation of Constitutions is that a provision should be construed in the light of the history of the times in which it was framed, and with due regard to the evil it was intended to remedy so as to give it effective operation and suppress the mischief at which it was aimed." (Italics ours.)

In endeavoring to ascertain the intention of the legislators who submitted the amendment to Section 12 of Article 5 to the people, and the will of the people who voted favorably to that amendment, and the intention of the General Assembly when the amendment was ratified, we accordingly look back to the situation and conditions from the time of the adoption of the Constitution in 1895 to the ratification of the amendment in 1911.

The present Constitution originally established a Supreme Court consisting of only four Justices, a Chief Justice and three Associate Justices (Section 2 of Article 5). It was provided that "the concurrence of three of the Justices shall be necessary for a reversal of the judgment below, but if the four Justices equally divide in opinion the judgment below shall be affirmed." Section 12 of Article 5. As shown before, when it appeared to the Justices, or any two of them, that the Court was not entirely agreed on a constitutional question involved in a cause then pending, the Court en banc should be called at the instance of those two Justices. The population of the State growing, and much progress in development of numerous new industries and enterprises occurring, the result was a great increase of litigation in the Courts of the State; so much so that the General Assembly had to increase the number of judicial circuits from 8 to 12 and likewise increased the number of Judges and Solicitors in the same proportion. More business for the Circuit Courts, of course, meant, naturally, there would be more business for the Supreme Court.

Again, it must have been apparent that it was rather unfortunate for the Supreme Court to be composed of an even number of Justices, and the necessary provision, under the circumstances, that when the Justices were evenly divided the judgment of the lower Court should be affirmed. The result of this last-mentioned provision was that, if two Circuit Judges disagreed upon the same legal question, which happened to be presented to them, at different times and in different causes, the judgment of the one whose decision was appealed from first reviewed by the Supreme Court, and affirmed by a divided Court, became not only the law of the particular case in which the decision was rendered, but such decision thereafter was binding authority in all similar subsequent cases. City of Florence v. Berry, 62 S.C. 469; 40 S.E., 871. So, if two of the Justices of the Supreme Court and eleven of the twelve Circuit Judges were of one opinion on a legal question, and two of the Justices and one of the Circuit Judges thought otherwise, it was not only possible, but oftentimes probable, that the judgment of the three Judges should, and would, overcome the opinion of the thirteen who concluded to the contrary, unless the two Justices of this Court exercised their right to call together the Court en banc.

Whatever the reasons — because the business of the Supreme Court required it, or because it was better to have a Court composed of an uneven number of Justices, or to do away with the holding of so many Courts en banc, or for other reasons — the General Assembly and the people amended Section 2 of Article 5 of the Constitution by adding another Associate Justice to this Court. This amendment was proposed in 1910 and ratified in 1911. There is no question here as to the validity of that amendment.

In 1895, when the Constitution was adopted, the wise and foreseeing framers of that most important instrument must have realized that there would likely arise immediately upon the going into effect of the Constitution a multitude of questions as to the meaning and effect of many provisions, clauses, and words contained therein. Realizing, too, that these questions should not be determined by only a divided Supreme Court, the provision for the Court en banc, at the instance of only two of the Justices, to pass upon constitutional questions, was, doubtless, thereupon inserted in Section 12 of Article 5. Fifteen years after, however, in 1910, when numerous questions as to the meaning of the Constitution had been passed upon by the Court of last resort, it was, more than likely, the belief of both legislators and people that there would be fewer questions of constitutional law to be determined thereafter. Looking forward to a decreased number of constitutional questions, and with little chance of a divided Supreme Court, it was altogether natural for the General Assembly and the qualified electors to believe that there would be less necessity in the future than there had been in the past for the meeting of the Court en banc. It must be presumed, also, that the members of the General Assembly, and perhaps a great number of our citizens, knowing of the insistent and repeated demands for more judicial circuits and a larger number of Circuit Judges and Solicitors, had repeatedly their attention called to the statement of the then wise Chief Justice, Hon. Henry McIver, who, speaking for the entire Court, although the Justices were then evenly divided on a question before them, in 1896, had said:

"In view of the expense, delay, and interference with the ordinary duties of the Circuit Judges, which will in many, if not most, cases result from calling the Circuit Judges to the assistance of this Court, we are not disposed to exercise the power vested in this Court, except where some grave question of public concern is involved." City of Florence v. Brown, 49 S.C. 332; 26 S.E., 880; 27 S.E., 273.

The amendment to Section 2 of Article 5, increasing the number of Associate Justices from three to four, and the one making the change in Section 12 of the same article, as to the number of Justices who might call for a session of the Court en banc on a constitutional question, were both proposed at the same session of the General Assembly, voted upon by the electors in the same general election, and were ratified at the same legislative session; evidently they were companion propositions. Expecting the amendment for the additional Associate Justice to become a part of the Constitution, the plan, obviously, was also to increase at the same time the number of Justices who might require the calling in of the Circuit Judges on constitutional questions. It seems easily reasonable to suppose that, when only two Justices were required to call the Court en banc at the time when the Supreme Court was composed of only four members, and often divided in their decisions, with an increased Court of five members, with little chance at any time of even division, that the plain intention was to strike out the word "two" and insert in lieu thereof the word "three."

As a matter of grammatical construction, we think it is also apparent that if the General Assembly, in framing its Joint Resolution, had intended that one Justice, and not two or three Justices, should have the power to demand a session of the Court en banc, it would have been the most natural thing for the language used to have been expressed in the words " any one of them." This would have been a complete following of the former style of the language used in the section originally. The fact that the word "one" was not used in the section "when amended" leads us strongly to the conclusion that in the drafting of that part of the Resolution the word "three," used in the amendatory part of the Resolution, was inadvertently left out.

In speaking of the amendatory Act, then under review, in the case of Bush v. Western Union Telegraph Co., supra, where the case was decided only some three years after the passage of the Act, Mr. Justice Hydrick stated:

"We are gratified that our construction is most strongly fortified by the fact that the Act of 1909, as amended, has been re-enacted, without change, by the Legislature in the Code of Laws of 1912, which seems to be conclusive of the question."

While our construction of the Joint Resolution and the ratifying Act, under examination, has not been strengthened by any direct legislative action, or by any further vote of the electors of the State, still we feel that such construction has been "most strongly fortified" by other facts and circumstances. The amendment, in the form we think it must have been adopted, was published to the people early in 1911; it was so printed in the official Code of 1912; and, again, it was similarly printed in the official Code of 1922. The opponents of the proposition to amend at all, both in the General Assembly and among the electorate, at no time questioned the effectiveness of the necessary Acts to accomplish the purpose sought, or raised a doubt that the amendment as published in our law books was otherwise than what had been the declared intention of the people and their chosen Senators and Representatives.

The General Assembly, in 1920, looking forward to the codification of all the laws of the State in the year 1922, as required by the Constitution (Article 6, § 5), in its Act thereabout, directed the Code Commissioner and his collaborators to insert in the official Code of 1922 the Constitution of the State. A committee of the General Assembly was appointed to supervise this work and its progress. This compilation, including the Constitution, was printed and laid upon the desks of the members of the two Houses in 1921, that full and careful examination thereof could be had prior to the session of 1922, when the Code was to be adopted. Surely, if there had been the least question as to what was the intention of legislators and voters in a matter so important as the amendment to Section 12 of Article 5, and any doubt that the expressed will of the people and the General Assembly had not been correctly recorded in the official Codes of 1912 and 1922, such question and doubt would have been made known much earlier than this. The bench and bar of the State, including especially this Court, have acquiesced for more than 16 years in the provisions of the section as it was supposed to have been amended.

Accordingly this Court is gratified that under the well-considered decisions of the Court, rendered in former times and under other circumstances, it can, and does, conclude that the clearly expressed will of our people and the declared intention of two General Assemblies have been effectually carried out, and that such will and intention are correctly set forth in the official printed Code of 1922.

Referring further to the provisions of the Constitution for the Court en banc, and to the appellants' request that such Court be called, we regard this as an opportune time to announce what we conceive to be the only proper course and practice to be followed in calling a session of the Court en banc.

There is no provision, constitutional or statutory, in our law for an appeal from the Supreme Court to the Court en banc. Unless such right has been expressly given by proper authority, no litigant has the privilege of claiming it; nor can it be granted when requested. Mr. Justice Cothran, speaking for the Court en banc, has said:

"The right of appeal is not a vested one, but a matter of grace." Osteen v. A.C.L.R. R. Co., 119 S.C. 438; 112 S.E., 352.

The already much-discussed Section 12 of Article 5 of the Constitution provides when and how the Court en banc shall be called. We quote from Hon. W.H. Townsend, Circuit Judge, who sat as a Judge in the Court en banc in the case of Citizens' Bank v. Heyward, 142 S.E., 651, decided on June 14, 1926, some of the interesting observations he made in his concurring opinion as to that Court:

"Like our former Courts of Error under the Acts of 1836, 7 Stats. at Large, 340, as noted by Chancellor Harper in Pell v. Ball, 1 Rich. Eq., 421, 426, and of 1859, 12 Stats. at Large, 648, the Court en banc differs materially from the Supreme Court, in that it is merely a consultative one, like the English Court of Exchequer Chamber, whose judgments were authoritative, though the suitor had no right of appeal to it. The Court en banc is called into existence by the Justices of the Supreme Court, only when they may desire to consult with the Circuit Judges as to particular causes or questions. It has no fixed terms, and loses jurisdiction when it has answered the questions submitted. Interstate Coal, etc., Co. v. Clintwood Coal, etc., Co., 105 Va., 574; 54 S.E., 593, by filing with the Clerk of the Supreme Court its written decisions, signed by a majority of the Justices and Judges. Hinson v. Pickett, 2 Hill [Eq.], 354. Its functions are then exhausted."

In the same case of Bank v. Heyward, Mr. Justice Cothran, in his dissenting opinion, made some interesting and forceful comments as to the Court en banc, and its relations to the Supreme Court, a part of which we reproduce:

"While it is quite common to refer to `the Court so constituted' as the `Court en banc,' there is, as a matter of fact, no such Court, considered as an independent tribunal, separate and distinct from the Supreme Court (a species of super-Supreme Court). It has no supervisory control, no appellate jurisdiction, over the Supreme Court; in fact, it is called together in cases only in which the Supreme Court, as ordinarily constituted, has failed to render a judgment, on account of the facts which require the calling in of the Circuit Judges, in which event the parties litigant are summoned before a Court, still the Supreme Court, but differently constituted from the ordinary elements, a Chief Justice and four Associate Justices."

As remarked before, and as indicated by both Mr. Justice Cothran and Mr. Circuit Judge Townsend, the Court en banc is not an independent Court, but, called as a consultative Court, it becomes for the time being the Supreme Court, and, in our opinion, the call for such Court should be made while the Supreme Court has pending before it, and before it has determined, the cause in which the assistance of the Circuit Judges is desired. It must be apparent that, if this Court is to have the full benefit of the assistance of the learned and honored Circuit Judges of the State, when it shall be deemed necessary, the call for their aid should be made before the cause in which their learning and wisdom is wished has been decided by this Court, so that the Circuit Judges may aid the Justices in reaching a correct conclusion. To hold the Court en banc after the Supreme Court has rendered its decision is but to ask the Circuit Judges to review the action of this Court in the cause decided, not to assist its Justices in rendering proper judgment, as contemplated by the Constitution.

As indicated above, not only the power, but the privilege, of calling to the aid of the Court the Circuit Judges, is a matter entirely for the Court and its Justices; it is not a right given to a litigant. The Court, and the Justices thereof, will, therefore, when it is deemed advisable, without petition or suggestion from a party to a cause pending before it, call the Court en banc.

The opposing view, that the right to request a session of the Court en banc is given to a party to a cause, and the position that, when there is any kind of difference in this Court as to a matter involving a constitutional question, it is the duty of the Court to call in the Circuit Judges, so earnestly presented in the dissenting opinion, were completely answered almost a century ago by the Court of Errors, then composed of those distinguished jurists, Chancellors David Johnson, Job Johnstone, William Harper, B. F. Dunkin, and Judges John Belton O'Neall, J.J. Evans, A.P. Butler, D.L. Wardlaw, and Edward Frost, with Chancellor Harper speaking for the Court, in the case of Pell v. Ball, supra, decided in 1845. When referring to the opinion in that case, let it be recalled that the Court of Errors, created by the Act of the General Assembly in 1836, composed of the chancellors in equity and all the law Judges, was the pattern after which was framed our present Court en banc. The requirements for the calling of the Court of Errors were remarkably similar to those stated in our Constitution to be necessary for a convocation of the Supreme Court Justices and the Circuit Judges. Since what Chancellor Harper wrote, so learnedly and forcibly, refutes the arguments advanced against the conclusion we have announced, we quote much at length from his interesting opinion, emphasizing some expressions which are peculiarly appropriate to present conditions and significantly in point upon the question presented. Said the Chancellor:

"I admit that, when an appeal is given, it is generally understood as of course to imply that it shall be at the option of the party against whom judgment is pronounced. But it is absolutely impossible to give this meaning to the word, in two of the instances in which it is used in the clause in question. * * * And I am satisfied that the power given to two Judges of demanding a Court of Errors can only be exercised before judgment rendered.

" If the right of appeal were the right of the suitor, he could only exercise it after judgment against him; but the appeal Courts have familiarly, and without doubt or question, ordered cases to the Court of Errors, if upon the opening of them any constitutional question appeared to be involved. * * *

"The right of two Judges to demand a Court of Errors indicates the Court to be merely a consultative one, like the English Court of Exchequer Chamber, which any of the Superior Courts may assemble, and whose judgments are authoritative, though the suitor has no right of appeal to it. Then, what was the evil in the case of constitutional questions? Certainly, it was not that the suitor had not a double appeal, or it would have been allowed in all cases, whether constitutional questions were involved or not. The suitor is as much aggrieved by an erroneous decision, depriving him of property or any other right, if the question be one of law merely, as if it were of law affected by the Constitution. Constitutional questions were regarded by the Legislature as of great importance, and the decision of them as affecting not only the party, but the public.

"It concerns the public that the Constitution should be maintained inviolate; and the Legislature has, therefore, made it the duty of the Court to submit all such questions to all the Judges of the State. It is said that the Courts whose errors are intended to be corrected are thus made the Judges in the last resort of the propriety of their own decisions. But every Court in the last resort must, of necessity, be the judges of the correctness of their own decisions, as of their own jurisdiction. * * *

"There is no time fixed by law for the meeting of the Court of Errors; but this depends entirely on the action of the two Courts. Yet, if the suitor may appeal at his option, he must of necessity have the right of requiring the Court to assemble to hear his appeal. * * *

"It is argued that to decide that no constitutional question is involved is to decide the constitutional question. * * * To decide in favor of the validity of a law which is charged to be contrary to the Constitution, is certainly to decide that there is no constitutional question involved in the case. The Constitution does not touch the question. * * *

" It certainly enters into our consideration that the construction contended for would render the administration of justice, under our present system, utterly impracticable. It is already very onerous. * * * But if it were left to the option of the parties, in every case, to have an ulterior appeal, it is plain that it would be impossible to get on. On the construction contended for, this would be, in effect, the result. There is hardly a case in which some pretext of raising a constitutional question might not be found. * * * This would be often resorted to for purposes of delay, and when the docket of the Court shall have accumulated, the delay would be interminable. Is it not safer to leave it to the Court, whose duty it will be to send the cause to the whole of the Judges, not only in cases in which a constitutional question is clearly involved, but in those in which a question can fairly be made?

" There must be a discretion which is not precisely defined. If there is any danger of abuse in this, it is that the discretion will be too liberally exercised; and there is no hardship on the suitor, who has already exercised all the right of appeal which the Constitution intended him to have."

Even though it be sought to make it otherwise appear, we are confident our holdings are not in conflict with anything appearing in or about the case of State v. Holleyman, 55 S.C. 207; 31 S.E., 362; 33 S.E., 366; 45 L.R.A., 567, or the case of Traynham v. C. W.C. Railway Co., 92 S.C. 43; 75 S.E., 381, referred to somewhat at length in the dissenting opinion. In both these cases the Supreme Court was divided on a question as to whether or not a statute of this State was in conflict with the Constitution of the United States. The session of the Court en banc in each of the cases was ordered at the instance of the entire Court, and not because it was desired by just one member of the Court. It nowhere appears in the decision of either of the case that it was the opinion of the Justices of the Supreme Court, or the opinion of the Justices and the Circuit Judges sitting en banc, that a party to a cause at any time had the right to demand, as a matter of law, that the Court en banc should be called to hear his appeal.

The situations that occurred in the Holleyman and Traynham cases are the very kind of situations that ought to be avoided, if possible, and it is the purpose now of this Court to prevent, as far as possible, their recurrence. In the first hearing of the appeal in the Holleyman case, the judgment of the Circuit Court was affirmed. When the case was heard by the Court en banc, the judgment of the Circuit Court was reversed, and, as seen, the Supreme Court, composed of its Justices alone, was reversed in the same case on the same legal question by the Supreme Court, composed of its Justices and the Circuit Judges, called the Court en banc. The identical thing occurred in the Traynham case. Who will dare say otherwise than that it would have been better for the Justices of the Supreme Court, when it developed that there was a situation requiring that the Circuit Judges be called to the assistance of the Supreme Court, for the Supreme Court, or a majority of its Justices, before announcing the decisions of the Court, to have first called the Court en banc? Had that course been pursued, then the Supreme Court would have rendered but one decision, and the Court would not have been placed in the unfortunate position of having it appear that it had reversed itself.

We deem it entirely unnecessary to attempt to review the many decisions from jurisdictions other than our own to which attention has been called in the dissenting opinion. The provisions of the Constitution of South Carolina as to the Court en banc are peculiarly singular in this State. We do not know of another State in the American Union which provided for a Court of that kind in its system of jurisprudence. It must be manifest that a decision of any foreign jurisdiction could have no bearing whatever upon any question now before this Court in this case. The very fact that it is necessary to look to the decision of Courts outside of South Carolina for arguments to use that this Court is wrong in the views it holds is but a concession that the decisions in South Carolina sustain the opinions of the majority of the Court.

The dissenting opinion observes, with some interest, that the present Chief Justice sat as member of the Court en banc in both the Holleyman and Traynham cases, and joined in the action of that Court, which resulted in the reversal of the judgments of the Circuit Court, and thereby also reversed the former decisions of the Supreme Court. The implication, we assume, is that the present Chief Justice is not now in harmony with some positions he has formerly taken. The facts do not warrant even a suggestion of inconsistency on the part of the present Chief Justice, for there is no change in his position in any way. The question as to the proper procedure for calling the Court en banc was not in the slightest way adverted to in either the Holleyman or Traynham cases. Whatever the petitions for rehearing may have contained, the fact remains that the Justices of the Supreme Court were divided in their opinion in both cases, and the Court en banc was convened in both cases by the Supreme Court. The experience attained from the results of those two cases has caused the present Chief Justice, and the members of the Court who now agree with his view, to more strongly feel the propriety of marking out for the efficient administration of justice the procedure which, it is thought, should be followed in the convocation of the Court en banc.

As will be clearly seen by reference to Article 5, Section 12, of the Constitution, already quoted, the Circuit Judges are to be called in only when three of the Justices shall have decided that "there is involved a question of constitutional law," upon the determination of which the entire Court is not agreed, and the decision as to whether or not the Circuit Judges shall be called in involves the exercise of their discretion. "Constitutional law" is defined in Mr. Black's Law Dictionary as follows:

"That department of the science of law which treats of Constitutions, their establishment, construction, and interpretation, and of the validity of legal enactments as tested by the criterion of conformity to the fundamental law."

That definition, in somewhat varying language, but practically with the identical meaning, is approved by many well-recognized authorities.

We do not think the alleged error on the part of the Circuit Judge, that he charged on the facts in violation of Section 26 of Article 5, raised a question of constitutional law. There is not involved here the construction or interpretation of the provisions of that section, which are: "Judges shall not charge juries in respect to matters of fact, but shall declare the law." All the appellants have done was to allege that, as a matter of fact, not as a matter of constitutional law, the Circuit Judge violated the quoted provision. The question, therefore, before this Court, has been not as to the intention or effect of the constitutional provision, but if the language used by the Circuit Judge in his charge to the jury was within the constitutional inhibition. An apt analogous illustration is this: One convicted in the Court of General Sessions of crime alleges, on appeal to this Court, that he was tried, over his protest, by a jury of 11 men, in violation of the constitutional provision giving him the right to trial by a jury of twelve. The State contends that the jury consisted of twelve. The question then before this Court would not be a construction or interpretation of the constitutional provision referred to, for it would be conceded by all interested that the accused was entitled to trial by a jury of twelve. The only question before the Court would be one of fact as to the number of jurors who sat in the trial.

So here it is conceded by all the parties to this cause, and by all the members of the Court, that the Circuit Judge should not have charged on the facts of the case. All this Court has had to do was to read the testimony, from which the facts of the case were derived, and then to read the charge of the Circuit Judge, and see if in any respect the Circuit Judge contravened the constitutional provision. In the opinion of Mr. Justice Marion, which was adopted as the opinion of the Court, the position was taken that, under the decisions of this Court, the Circuit Judge did not charge on the facts of the case at bar. The dissenting opinion filed in the case did not discuss this question. The usual rule is that, when a dissenting opinion does not controvert any position taken in the majority opinion, it is assumed that the dissenting opinion acquiesces in the conclusions of the majority as to positions not controverted. Chancellor Harper stated:

"To decide in favor of the validity of a law which is charged to be contrary to the Constitution is certainly to decide that there is no constitutional question involved in the case. The Constitution does not touch the question."

To decide that the charge of the trial Judge does not violate the constitutional inhibition against charging on the facts is certainly to decide that there is no constitutional question involved in the case; for, as said by the Chancellor, "the Constitution does not touch the question." Now, perhaps even more so than in 1845, "there is hardly a case in which some pretext of raising a constitutional question might not be found." The good old standby intended for honest use, and so frequently abused, that no person shall be deprived of property without due process of law, is always eagerly anxious to be the "unbidden and perhaps unwelcome guest * * * at the door."

And of late keeping close company with that "constitutional question" is the other, that imputes error because the trial Judge charged on the facts. In almost every case decided by a jury, now brought to this Court, complaint is made, and generally without foundation therefore, that the Circuit Judge has violated the provisions of Article 5, Section 26, by charging on the facts. If this Court should accept this "pretext" of raising a constitutional question, and on account thereof call in the fourteen Circuit Judges of this State every time there is a disagreement as to an exception raising a "constitutional question" as to charge on the facts, and every time a defeated litigant made demand therefore, because the Constitution, in his opinion, had been violated, we would bring about a situation even more unfortunate than the one suggested by the great McIver. The Circuit Judges would be engaged practically all of their time in attendance upon the Court en banc, therewith the incidents of "expense, delay, and interference with the ordinary duties of the Circuit Judges." This would necessitate the probable continuous appointment of fourteen or more Special Judges to conduct the business of the Circuit Courts.

This Court is of the opinion that we can safely follow the precedent laid down by this Court, composed of Justices McIver, Pope, Gary, and Jones, all of whom served the State ably in the high office of Chief Justice, when they declared in Florence v. Brown, supra: "We are not disposed to exercise the power vested in this Court, except where some grave question of public concern is involved." The question whether or not a Circuit Judge in some particular case charged on the facts of that case is certainly not a grave question of public concern. Mr. Justice Cothran has said:

"It is a proverb as old as the law that it is to the interest of the State that there be an end of litigation." Sumter Trust Co. v. Holman, 134 S.C. 412; 132 S.E., 811.

This case, as already stated, has been heard by this Court twice, and the conclusions reached have been against the appellants in both instances.

It is not our purpose to go again into the facts of the case. We have only legal questions before us.

We have no desire to fire "a parting shot" at either of the parties to this cause. The one fired in the dissenting opinion, like most "parting shots," was too late to be effective. It is an argument that the verdict of the jury was wrong. So far as that verdict is concerned, this Court is concerned only with the question if the trial Judge, in the trial of the cause, committed any error of law. We are only judges of the law. We are not advocates of either of the parties to the cause. The arraignment of the respondent in the dissenting opinion in all likelihood would have been interesting to the trial jury, if used by counsel for the appellants in the addresses to that tribunal. We are not called upon here to defend him from that arraignment. It is sufficient to say that the jury has vindicated him. We shall not undertake to criticize the verdict of a jury, who, it must be assumed, did their duty as they conceived it to be, and who have not the privilege or opportunity of making any reply to any criticism we might offer as to their conduct.

In their petition now before this Court the appellants ask, in any event, if the judgment below be affirmed, that the same be made effective within 60 days from the last day of the term of this Court (November — , 1925), when the appeal was first heard, and that the plaintiff be required to cancel and remit interest on his judgment accruing since said time. The reasons for this request, briefly stated, are that Section 17 of Article 5 of the Constitution provides that "it shall be the duty of the Justices of the Supreme Court to file their decisions within sixty days from the last day of the Court at which the cases were heard," and that the delay in rendering the judgment herein has not been caused by the laches of the appellants. To sustain this request there is cited the case of Griffith v. Cromley, 58 S.C. 448; 36 S.E., 738.

The facts relating to the hearing and determination of this appeal are these: It was heard first on November 10, 1925; the Court was then composed of Chief Justice Gary, Associate Justices Watts, Cothran, and Marion, and Acting Associate Justice R.O. Purdy. Chief Justice Gary, because of illness, did not participate in the case. Mr. Justice Marion resigned, effective January 1, 1926, but he was appointed by the Governor to serve as an Acting Associate Justice in all causes formerly heard by him. In May, 1927, the four Justices who sat in the cause, being evenly divided in their opinions as to affirmance or reversal, on account of the great importance of the cause, deemed it best that there be a rehearing before a full Court, and so directed. In the meantime, Chief Justice Gary had died; Mr. Associate Justice Watts became Chief Justice, and Justice Blease, Stabler, and Carter became members of the Court. The rehearing was had on June — , 1927, without objection or question of any kind by appellants or respondent. The decision of the Court affirming the judgment below was handed down on September 21, 1927, and within ten days thereafter the appellants filed their petition for another rehearing.

It is well known to the bar of the State that the work of this Court for several years past has been exceedingly heavy, and, unfortunately, it has been interfered with to a great extent by both the illness and deaths of several members of the Court. This case has been here a long time, due much to the facts related above, but even more so because this Court has agreed at all times with one thing so frequently and insistently urged by the appellants, that the issues involved were of great importance, and that the financial interests of appellants at stake were large.

It has required much time for the Court as a whole, and for several Justices and Acting Associate Justices, to properly consider the cause. This will be quite apparent to the appellants, as well as all others concerned, when they are reminded that the transcript of record contains 236 pages; that each of the appellants made 19 exceptions, all important; that the printed arguments for the appellants contain 83 pages, and the argument of the respondent has 77 pages; that the total number of authorities cited by both sides, including textbooks, aggregate at least 150; and, most important of all, that the Court was divided in two instances as to the determination it should make. These facts have been related that the seeming delay of the Court may be understood.

Even in the circumstances, however, as a matter of law, we do not see how this Court, though it felt disposed to do so, could grant the request of the appellants. We do not think the Griffith case, supra, warrants our doing so. In that case, which was an action in equity, it was contended that the decree of a Judge of the Court of Common Pleas was void, because it was not filed within 60 days after final adjournment of the Court at which the cause was heard, but this Court held otherwise. It was decided, in effect, that the Court would not, where it could prevent, permit a party to a cause to suffer by delay, not occasioned by his fault, but due to the Court itself.

In an equitable action, this Court has very great latitude in rendering its judgments, and might, in proper cases, order a remission of interest. In an action at law, however, and such is the case at bar, this Court is "a Court for the correction of errors at law under such regulations as the General Assembly may be law prescribe." Section 4, Article 5, Constitution. We are not advised of any statutory enactment which permits the Court to order a remission of interest on a judgment, based upon the verdict of a jury. To the contrary, the General Assembly has expressly declared that all money judgments shall draw interest at the legal rate. Section 3636, Vol. 3, Code 1922. It follows, therefore, that the Court cannot relieve the appellants, even if it were thought proper to do so.

As to the other matters mentioned in the petition for rehearing, the Court has again, at appellants' instance, reviewed the trial below, and we are satisfied with the opinion of the Court, as written by former Associate Justice Marion, which covered all the exceptions of the appellants, and we find no error of law therein. In connection with the opinion of the Court, however, we direct that the charge of the trial Judge and his order refusing a new trial be reported.

It is hereby ordered that the petition for rehearing be denied, and that the order staying the remittitur be revoked.

MR. CHIEF JUSTICE WATTS and MESSRS. JUSTICES BLEASE and STABLER concur.

MR. JUSTICE CARTER concurs in result.