
    NEPHI IRRIGATION COMPANY, Appellant, v. RICHARD JENKINS, and Another, Respondents.
    Courts.— Quorum.— Disqualified Member. — Section 1 of Act of Congress of June 25th, 1888, provides that any three of the justices of the supreme court shall constitute a quorum, but no justice shall act as a member of the supreme court, in any action or proceeding brought to such court by writ of error, bill of exceptions, or appeal from a decision, judgment or decree rendered by him as a judge of a district court; held that a justice disqualified could be counted as a member of the court for a quorum.
    Motion to recall remittitur of the supreme court. The opinion states the facts.
    
      Section 3 of the act herein alluded, to provided that the justices of the supreme court might be assigned to hold the district courts, and where two judges were assigned to the same district they might hold separate hearings or sit and act together. It was argued that whenever two judges sat together in the district court, and an appeal was taken from any of their decisions, it could not be heard in the supreme court, until a new appointment of a judge should be made, and such a result could not have been contemplated by congress.
    
      Mr. Jacob Johnson, for the motion.
    
      Mr. Gharles S. Varían, contra.
    
   Per Curiam:

This case was submitted to the court on briefs, Chief Justice ZaNE presiding, who, together with Justices Miner and Anderson, constituted the court at the time of such submission. Justice BlaoKburn having tried the case below, did not sit in this case. Chief Justice Zane rendered the opinion of the court, Justice Miner concurring. The opinion was handed down at a time when Chief Justice Zane and Justices Miner and BlaoKburn were sitting as a court, and constituting a quorum thereof. The objection is made that Justice Blaciiburn would not count as a member of the court, so as to constitute a quorum when the decision was rendered. “The supreme court consists of a chief justice and three associate justices, any three of whom shall constitute a quorum; but no justice shall act as a member of the supreme court in any action or proceeding brought to such court by writ of error, bill of exceptions, or appeal from a decision, judgment, or decree rendered by him as a judge of the district court.” 25 IJ. S. St. at Large, p. 203. Under this act any three of the justices constitute a quorum for the transaction of business, and a justice who tried the case below may sit for the purpose of making a quorum, but such justice cannot act or participate in such proceeding. This must have been the intention of congress in passing this act; any other construction would render the court powerless to act in many cases brought before it. Under the contention claimed by respondent the sickness or absence of one of the justices would render it impossible to obtain a quorum so as to transact business, although it would be competent for two concurring justices, when three constitute a quorum, to render an opinion. If the disqualified justice cannot constitute one of the quorum ■ without acting, the two remaining justices would be powerless to act. The motion to recall remittitur is denied.

BlacKbuiiN, J., did not sit in this hearing.  