The opinion
On Rehearing.
Per Curiam.
A rehearing was granted in this case and a reargument has been had before the Court
en banc.
There being no concurrence of a majority of the Supreme Court in any opinion and judgment that Chapter 16058, Acts of 1933, relating to and creating a Jury Commission in
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all counties of the State having a population of 155,000 by the last preceding Federal Census is, or would be, unconstitutional for any of the causes alleged against its' validity in this proceeding in quo warranto, the judgment of this Court must be, and is, that the State’s demurrer to the return of the respondents be and the same is hereby overruled and that final judgment consequent on such demurrer be and the same is' hereby directed to be entered in favor of said respondents to the effect that they have not unlawfully usurped, nor continued to unlawfully usurp, the office of Jury Commissioner of Duval County, Florida, as charged in the State’s information in quo warranto, and that the writ of quo warranto issued herein be and the same is hereby dismissed and the judgment of ouster prayed for against the respondents denied.
Where a party institutes an original proceeding in the Supreme Court alleging as a basis for judgment in his favor therein, that a duly enacted statute is unconstitutional, and his case is heard and argued before six justices sitting
en banc,
the concurrence of a majority of the members of the Supreme Court in holding the challenged statute to be unconstitutional is necessary to any judgment adjudicating the statute to be invalid for the causes assigned, or to grant specific relief predicated on any such holding.
Therefore in a case like this one which is in quo warranto, where the members of the Supreme Court sitting
en banc,
and after full hearing and argument in the premises, cannot agree by a majority opinion of their members to a judgment holding a challenged statute brought into controversy therein, to be unconstitutional, the statute must be judicially recognized and upheld as' valid for the time being, and judgment entered in favor of the respondents, without prejudice, however, to a future reconsideration and
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determination of the constitutional question involved should there be a change in the personnel of the Supreme Court— the statute and acts' done pursuant to it in the meantime being unaffected in their validity by reason of the failure of the highest Court of the State to affirmatively adjudicate the challenged Act to be unconstitutional.
Judgment for respondents on demurrer overruled to information in quo warranto.
■ Whitfield, C. J., and Terrell, Brown, Buford, and Davis, J. J., concur.