I concur in the conclusion that this appeal should be dismissed for want of essentially necessary parties. I do not think that this conclusion is in conflict with Section 4635, Comp. Gen. Laws, which was Section 1 of Chapter 11890, Acts of 1927, though it is in conflict with Section 4636, which was Section 2 of the Act referred to, as the dismissal here issua sponte.
Section 4635, Comp. Gen. Laws, inhibits the dismissal of a writ of error or appeal for want of "proper parties." There is a well established distinction between merely proper parties and necessary parties. An entirely proper party may not be a necessary party. See 3 C. J. 1005-1017. So I think this Section 4635 may readily be upheld as applying to merely "proper parties."
It further appears to me that in order to uphold the validity of both these sections they must be construed in such a way as not to infer an intent to deny due process of law or to invade the judicial power.
Thus Section 4636, Comp. Gen. Laws, says that this Court shall not dismiss any cause "for any defect or omission not insisted upon by the adverse party." This may be, and I think is, a very good general rule, and one in fact that this Court has itself enunciated and followed, but it could not be constitutionally applied to prevent the Court from dismissing an appeal of which this Court had no jurisdiction or where the potential jurisdiction of the Court had not been lawfully invoked; nor in my opinion could it be constitutionally applied so as to deprive any essentially necessary party who had not been brought into Court of his property or his liberty without due process — without an opportunity to be heard. The Legislature cannot constitutionally require a court to hear and decide a case which it refuses to hear and decide because it clearly appears that essentially necessary parties have not been *Page 1043 brought into court, and given an opportunity to be heard, and whose personal or property rights must necessarily be adjudicated or substantially affected by the disposition of the cause.
On the other hand, a party aggrieved and injured by a judgment of a trial court should not be deprived of an opportunity for appellate review merely because he fails to bring in nominal or useless parties who have no real or substantial interest in whether the judgment or decree appealed from is reversed or sustained, or where such appellant is the only party aggrieved or affected by such judgment. In all such cases this statute could well be given full application, though, it must be confessed, it would, as thus construed, work very little change in the principles already recognized by and applied in the practice of this Court.
Probably the most plausible argument in opposition to the above briefly outlined views is that omitted parties would not be bound by the judgment rendered by this Court anyway; or, if they later themselves decided to appeal, they could under this statute take separate appeals. This might mean in many cases, several separate appeals, when the matter could have been more thoroughly, efficiently, and expeditiously settled by one appeal which brought all the vitally interested parties before the court at one time. I believe that a statute which would so endeavor to dictate to the courts as to how they should transact the business entrusted to them by the Constitution as to compel the courts to hear by piece-meal a case which they could better and more expeditiously hear and decide as a whole and at one time, would constitute an invasion of the judicial power vested in the courts by the Constitution. The courts have too long and too frequently acquiesced in legislation which really encroached upon strictly judicial *Page 1044 power, and thus transgressed the fundamental constitutional principle providing for the separation of the powers of government into three great departments, the legislative, the executive and the judicial, each independent of, and constituting a check upon the power of the others, so as to preserve the highest usefulness and independence of each, within their respective constitutional confines, and guard against abuse of power by either of them.
But I believe that the purpose of this statute is good; that it is intended to be remedial in its nature, and should, therefore, be liberally interpreted to the fullest extent that it can be fairly and constitutionally applied. I can see no reason, for instance, why, generally speaking, a party to a cause in the trial court who cannot be injured by an appeal should be brought into this Court on the appeal; hence the omission of such a party should not constitute a ground for dismissal, sua sponte. In other words, I think the words "proper parties," as used in the statute, should be construed to mean merely "proper parties" as distinguished from necessary or essential parties. For, in the ultimate, whether a party is or is not an essential or necessary party to the adjudication of a cause, is, to my mind, a judicial and not alegislative question.
WHITFIELD, ELLIS AND STRUM, J. J., concur.
