bank; but if four justices, so present, do not concur in a judgment, then all the justices qualified to sit in the cause shall hear the argument; but to render a judgment a concurrence of four judges shall be necessary. In the determination of causes, all decisions of the court in bank or in departments shall be given in writing, and the grounds of the decision shall be stated. The chief justice may sit in either department, and shall preside when so sitting, but the justices assigned to each department shall select one of their number as presiding justice. In case of the absence of the chief justice from the place at which the court is held, or his inability to act, the associate justices shall select one of their own number to perform the duties and exercise the powers of the chief justice during such absence or inability to act.

Const. 1849, Art. VI, Sec. 2.

Under the constitution of this state there is but one Supreme Court, and its jurisdiction may be exercised either in bank or department; and in either case its exercise is of equal import. Its action in bank over the action of a department is supervisory, rather than appellate. As the constitution requires it to be always open for the transaction of business, any order that is made by a majority of the justices is an order of the court in bank, and the exercise, by the justices, of this supervisory control of the action of a department is the action of the court in bank. Nor is it necessary for this supervisory jurisdiction that a distinct order be made that a cause be heard in bank. An order directing cause to be heard in bank does not imply that the cause shall be re argued. Unless re-argument is ordered the cause may be examined, modi

fied, etc., without re-argument. The court has entire control of the case during the thirty days next after a decision by a department. Niles v. Edwards, 95 Cal. 41.

In cases of equal division among the justices qualified to sit, in any cause, a judgment of affirmance follows ex necessitate rei. Luco v. De Toro, 88 Cal. 26.

Section 45, Code of Civil Procedure, requiring that an order granting a rehearing after a judgment of the court in bank shall be in writing, signed by five justices, is unconstitutional. The court has power to act by a constitutional majority of its members in all cases, and the legislature cannot require the concurrence of more than a majority. In re Jessup, 81 Cal. 409, Works, J., dissenting.

A judgment by a department does not become final until the expiration of thirty days thereafter unless the chief justice and two associate justices approve it. Hog's Back Con. M. Co. v. New Basil Con. G. M. Co., 65 Cal. 22.

That any four justices may sit in any department and the chief justice may sit in either department indicates that the word. "may" was intended to expressly "declare" that these clauses are not mandatory, and no reason is perceived why it was not so used and intended in section 16, article XII. National Bank v. Superior Court, 83 Cal. 494.

Although a petition for rehearing had been filed with the clerk of the court in Los Angeles prior to the expiration of thirty days, the re

hearing must be denied because the petition did not reach the court until one day after the time (30 days) within which an order granting a rehearing could be made. Durgin v. Neale, 82 Cal. 595.

The act of March 12, 1885 [Stats. p. 101, and Stats. 1889, p. 13], creating Supreme Court commissioners, are not unconstitutional, as they do not confer on the commissioners the power to decide or render judgment. People v. Hayne, 83 Cal. 111.

The constitution of the state and the rule of court making a judgment rendered in the Supreme Court final unless a rehearing is granted within thirty days, do not make any distinction between those of appellate and those of original jurisdiction; and the provisions of the Code of Civil Procedure regulating new trials have no application to proceedings originating in the Supreme Court. Granger's Bank v. Superior Court, 101 Cal. 199.

SECTION 3. The chief justice and the associate justices shall be elected by the qualified electors of the state at large at the general state elections, at the times and places at which state officers are elected; and the term of office shall be twelve years, from and after the first Monday after the first day of January next succeeding their election; provided, that the six associate justices elected at the first election shall, at their first meeting so classify themselves, by lot, that two of them shall go out of office at the end of four years, two of them at the end of eight years, and two of them at the end of twelve years, and an entry of such classification shall be made in the minutes of the court in bank, signed by them, and a duplicate thereof shall be

filed in the office of the secretary of state. If a vacancy occur in the office of a justice the governor shall appoint a person to hold the office until the election and qualification of a justice to fill the vacancy, which election shall take place at the next succeeding general election, and the justice so elected shall hold the office for the remainder of the unexpired term. The first election of the justices shall be at the first general election after the adoption and ratification of this constitution.

Const. 1849, Art. VI, Sec. 3.

Articles III and VI are controlled by section 20 of article XX, in so far that the terms of superior judges shall begin on the first Monday after the first day of January after their election, it being intended that all officers of the state should take office on the same day. Merced Bank v. Rosenthal, 99 Cal. 39.

Referred to in People v. Hayne, 83 Cal. 112, and in Barton v. Kalloch, 56 Cal. 101, and in People ex rel Lynch v. Budd, 114 Cal. 168.

SECTION 4. The Supreme Court shall have appellate jurisdiction in all cases in equity, except such as arise in justices' courts; also, in all cases at law which involve the title or possession of real estate, or the legality of any tax, impost, assessment, toll or municipal fine, or in which the demand, exclusive of interest, or the value of the property in controversy, amounts to three hundred dollars; also, in cases of forcible entry and detainer, and in proceedings in insolvency, and in actions to prevent or abate a nuisance, and in all such probate matters as may be provided by law; also, in all criminal cases prosecuted by indictment, or information in a court of record on questions of Jaw alone. The court shall also have power to issue writs of mandamus, certiorari, prohibition and habeas corpus, and all other writs necessary or

proper to the complete exercise of its appellate jurisdiction. Each of the justices shall have power to issue writs of habeas corpus to any part of the state, upon petition by or on behalf of any person held in actual custody, and may make such writs returnable before himself, or the Supreme Court, or before any Superior Court in the state, or before any judge thereof.

Const. 1849, Art. VI, Sec. 4.

In an action to recover one hundred dollars paid by plaintiff under an agreement that defendant would locate plaintiff on vacant government land, the pleadings and record in the justice's court did not sufficiently show that the title or right of possession would necessarily be involved. Held, if such question became involved the justice had no jurisdiction to try it, and should have certified the case to the Superior Court. When defendant appealed the case to the Superior Court on questions of law and fact, and on trial de novo the question of possession and right of possession became involved by evidence that the land was not vacant but was already occupied by a third party, the Superior Court had jurisdiction of the parties and original jurisdiction of the particular issue raised and an appeal would lie from its judgment to the Supreme Court. If the title or possession is so involved that it must be decided in order to determine the case, the Superior Court has original, and the Supreme Court has appellate jurisdiction whether the involution may be said to be merely incidental or not. [Copertini v. Oppermann, 76 Cal. 181; Holman e. Tay