3

power are not grants, but limitations to be strictly construed,1 and held that the implied restriction upon the legislative power to erect and regulate courts, contained in the declaration that the judicial power shall consist of a supreme court, a circuit court, etc., and that judges of such circuit courts should be elected, did not extend to the case of trials in such circuit courts, which the regular judge should decline, or be incompetent, to try. As to such emergencies the innate power of the legislature continued unrestrained, and decisions very similar have been made elsewhere. But in a later Alabama case, constitutional provision for election of judges was held to prevent statute compelling selection or appointment of special judges in case of the incompetency of the presiding judge from interest or relationship-although provision in statute for sitting as arbitrator and allowing appeal to supreme court, was upheld. The later decision against appointment of special judges accords with rulings in Illinois and Iowa.5 In some States constitutional provision for substitution of judges from other courts has been held to forbid statute allowing appointment of attorneys as special judges; but such provision does not apply to courts erected by the legislature.6

Where the constitution prescribes a mode of selection of a substitute or special judge and indicates the causes which will justify such selection, it excludes other modes of selection, and other causes.7

In Oregon, it was ruled that objection that the judge was not authorized to sit cannot be considered in the appellate court unless made in the court below. State v. Whitney, 7 Oreg. 386. As to incompetency from disqualification, see DISQUALIFICATION.

1. Citing Fletcher v. Peck, 6 Cranch (U. S.) 87; Golden v. Prince, 3 Wash. (U.S.) 313.

2. Compare supra, this title, VACANCIES IN OFFICE. Upholding Alabama Rev. Code, section 758, providing for special judges. Alabama etc. R. Co. v. Burkett, 42 Ala. 83. And see Holly. Carson, 39 Ala. 345.

See also Grinstead v. Buckley, 32 Miss. 148; Henderson v. Pope, 39 Ga. 361; People v. Petty, 32 Hun (N. Y.) 443. See also miscellaneous decisions in State v. Snodgrass, 4 Nev. 524; People v. Gallagher, 75 Mich. 512; State v. Williams, 14 W. Va. 851; Clark v. Rugg, 20 Fla. 861; Bear v. Cohen, 65 N. Car. 511.

3. Ex parte Amos, 51 Ala. 57 (1874).

4. Hoagland v. Creed, 81 Ill. 506. 5. Winchester v. Ayres, 4 Greene (Iowa) 104.

6. Harper v. Jacobs, 51 Mo. 296;

Smith v. Haworth, 53 Mo. 88. See also Brown v. Buzan, 24 Ind. 194.

Held also that the fact that as to one grade of courts, viz, the circuit courts, the constitution had provided in case of temporary inability of the regular incumbent did not create the inference that its silence respecting inferior courts showed intent to deny similar provision for them; for the legislative power to establish inferior courts was enough. Brown v. Buzan, 24 Ind, 191.

In Mississippi, the court intimated very strongly that the constitutional provision for calling in of the judge of another circuit would prevent the passage of any statute allowing agreement for selection of an attorney as special judge. Peter v. State, 6 How. (Miss.) 326.

Reference may be made to a master or referee. Underwood v. McDuffee, 15 Mich. 361; Hards v. Burton, 79 Ill. 504. But the referee shall not have power of final decision. Johnson v. Wallace, 7 Ohio 392; King v. Hopkins, 57 N. H. 334; St. Paul etc. R. Co. v. Gardner, 19 Minn. 132; s. c., 18 Am. Rep. 334.

7. State v. Phillips, 27 La. An. 663; State v. Frank, 27 La. An. 689; State

Where the constitution authorizes legislative provisions for special judges in certain courts, if part of the jurisdiction of one of those courts be given in its relief to a newly erected court, the legislature may provide for special judges in the new court.1

(b) Limitations of Powers.-Trial before a special judge is not to be regarded in the light of an arbitration. Writ of error or appeal may run to the court in which he sat. His judgment is the judgment of that court. Nevertheless, a judge pro tem is only a substitute, not a duplicate judge,3 so that in jurisdictions where the law intends that only one judge shall sit at a time in a county, the regular and special judge cannot both hold courts at the same time in the same county.

Special as well as regular judges may sign bills of exceptions. after term time.5

(c) When Special Judges Can Act.-Proceeding by an administrator for sale of real estate; divorce proceeding; proceeding supplementary to execution; 8 motion for receiver;9 action involving the judge's right to office; 10 settlement of bill of exceptions ;11 --such are civil actions in the sense that a party may have a change of judge on proper application.

Where a special judge already chosen for the term of the court

v. Judge, 9 La. An. 62; Hayes v. Hayes, 8 La. An. 468. Provision that recused judge, who is not personally interested, may appoint a lawyer in his stead, and when interested may call on district or parish judge, excludes the idea of a sick judge so doing. State v. Fritz, 27 La. An. 689; State v. Phillips, 27 La. An. 663.

It was held, in Georgia, that provision authorizing substitution in superior court did not prevent legislation authorizing litigants to select an attorney in place of the disqualified judge. Henderson v. Pope, 39 Ga. 361. See also State v. Williams, 14 W. Va. 851. Provision that legislature may provide for special judges authorizes statute allowing selection by the bar. Ligam v. State, 3 Heisk. (Tenn.) 159; State v. Williams, 14 W. Va. 851. Ör by the governor. Kennedy v. Com., 78 Ky. 447. And statute allowing election by the bar is applicable although one of the parties does not consent to the choice. Smith v. Blakeman, S Bush (Ky.) 476.

1. Rudd v. Woolfolk, 4 Bush (Ky.) 555.

2. Henderson v. Pope, 39 Ga. 361; Alabama etc. R. Co. v.. Burkett, 42 Ala. 83. See also Taylor v. Smith, 4 Ga. 133; Walton v. Bethune, 37 Ga. 319; Vischer v. Talbotton etc. R. Co., 34 Ga. 536; Case v. State, 5 Ind. 1.

3. Cox v. State, 30 Kan. 202; Cooley Cons. Lim. 399.

4. In re Millington, 24 Kan. 214; Tarpenning v. Cannon, 28 Kan. 665; Haverly etc. Mining Co. v. Howcutt, 6 Cal. 574; Clark v. Rugg, 20 Fla. 861; Bear v. Cohen, 65 N. Car. 511.

5. Watkins 7. State, 37 Ark. 370; Cowell v. Altchul, 40 Ark. 172; Bacon v. State, 22 Fla. 46.

6. Scherer v. Ingerman, 110 Ind. 428. See also Lester v. Lester, 70 Ind..

201.

7. Powell 7. Powell, 104 Ind. 18 (limiting Musselman v. Musselman, 44 Ind. 106) and explaining Ewing v. Ewing, 24 Ind. 468; Eastes v. Eastes, 79 Ind. 363). And see Evans . Evans, 105 Ind. 204 (disapproving Musselman v. Musselman, 44 Ind. 106).

8. Burkett v. Holman, 104 Ind. 6. See also Toledo etc. R. Co. v. Howes, 68 Ind. 458; Kissell . Anderson, 73 Ind. 485; McMahan v. Works, 72 Ind. 19; Abell v. Riddle, 75 Ind. 345; Johnson v. Jones, 79 Ind. 141, 147; Fowler v. Griffin, 83 Ind. 297; Baker v. State, 109 Ind. 47.

27.

9. Corbin v. Berry, 83 N. Car.

10. Magruder v. Swann, 25 Md. 173; Nugent v. Stark, 34 La. An. 628; State v. Judge, 33 La. An. 1293.

11. Gowden v. Wilson, 21 Fla. 165; Florida Code 165.

is disqualified as to a certain action, another may be appointed to preside in that trial. Where appeal is asked, if the judge petitioned had formerly been counsel, he may of his own motion recuse himself, and, in Louisiana, he may appoint an attorney judge pro hac vice.2

In some States, the statutes authorizing appointment of attorneys as special judges apply to criminal cases.

3

There is one case holding that an equity case is not one wherein there can be transfer to another court because of objection to the chancellor; but other cases maintain the contrary.

(d) When Special Judges Cannot Act.-Where a statute creates an additional judgeship in a district, and there is present a judge not disqualified, there is no necessity to appoint an attorney as special judge. A scurrilous newspaper attack on a judge does not afford him legal ground for transferring the cause to another court. Acknowledgment of sheriff's deed is not a proceeding in which another judge may be substituted.7

1. Little Rock etc. R. Co. v. Barker, a criminal case. If there was before 39 Ark. 491. the constitution of 1877 and the act of 1879, it is clear there is none since. Castleberry v. State, 68 Ga. 49.

Change of Venue.-Where the statute gives the special judge jurisdiction until final determination, the parties cannot have vacated order appointing special judge to hear application for change of venue. State v. Hayes, 88 Mo. 344, cited in Dawson v. Dawson, 29 Mo. App. 521.

Where the special judge is disqualified by prejudice, the remedy is not change of venue, but a new election. Barnes v. McMullins, 78 Mo. 260. But see CHANGE OF VENUE, vol. 3, p. 90. 2. Nugent v. Stark, 34 La. An. 628. 3. In Missouri, Rev. Stat. 1879, § 1880; Ex parte Clay (Mo.), 11 S. W. Rep. 998.

In Indiana, see Herbster v. State, So Ind. 484; Feigel v. State, 85 Ind. 580, where it was so held, notwithstanding the statute was entitled "An act concerning proceedings in civil cases"— the statute relating to circuit courts wherein both classes of cases were triable.

In Tennessee, Ligam V. State, 3 Heisk. (Tenn.) 159; Glasgow v. State, 9 Baxt. (Tenn.) 485.

In Texas, Thompson v. State, 9 Tex. App. 301; Early v. State, 9 Tex. App. 476; Davis v. State, 44 Tex. 523. In Pennsylvania, the substitution is of another judge learned in the law. Re Application of the Judges, 64 Pa.

St. 23

In Georgia, there is no provision in the law for the appointment of a member of the bar as judge pro hac vice in

In Mississippi, an attorney cannot be made special judge of a circuit court in a criminal case. Peter v. State, 6 How. (Miss.) 326.

Maine superior court judge may request supreme court judge to sit in a criminal case in superior court where the judge of the latter court is related to one of the parties. Maine Pub. L. 1868, ch. 151, § 12, providing for transfer under certain circumstances to supreme court relates to civil cases only. State v. Thomas, 56 Me. 490.

4. The provision in the Maryland constitution for transmission to a different court in case of local prejudice, or of the disqualification of the regular judge, does not apply to equity cases. The provision is to provide against an evil which cannot exist in equity; first, because of the right to have an issue awarded for jury trial; second, because appeals in equity are as to facts as well as to law. Cooke v. Cooke, 41 Md. 362. But see contra, Rudd v. Woolfolk, 4 Bush (Ky.) 555.

CHANCELLOR KENT discussed the legality of his sitting, or yielding to another judge, without allusion to this point. Stuart v. Bank, 19 Johns. (N. Y.) 501.

5. State v. Judge, 35 La An. 1007. 6. Voullaire v. Voullaire, 45 Mo.602. 7. The statute makes no provision for such a case. Lewis v. Curry, 74 Mo. 50.

It has been held that the sentencing of a convicted person is not such a proceeding, although in Mississippi the act was regarded as optional with the judge.2 But the rendition of judgment is judicial, although its entry on the records is ministerial.3

(e) Proof of Special Fudges' Authority.-When a stranger sits on the bench, the record should show affirmatively his selection. and appointment.4

Some cases indicate necessity of setting forth the regular judge's disability. But it was decided otherwise in Missouri, and elsewhere, the appellate courts acting on the presumption of the regularity of proceedings. And some courts have held that prerequisites to be performed by the special judge will be pre

1. The act of passing sentence on a defendant was, in the case cited, merely ministerial, involving no discretion, and was properly done by a judge who was attorney for the State on the trial. The judge of one judicial circuit has no authority to call in the judge of another circuit for the mere purpose of passing sentence on a defendant. State v. Shea, 95 Mo. 85.

But although such sentence by the substitute judge is error, and will be reversed, the reversal is to be confined to the judgment and sentence. It does not invalidate or overthrow the steps antecedent to the judgment and sentence. State v. Shea, 95 Mo. 85,95; citing, as to the effect of reversal, I Bishop Crim. Proc., § 1293; McCue v. ·Com., 78 Pa. St. 185.

20.

2. Thomas v. State, 5 How. (Miss.) See High Ex. Leg. Rem. (2nd ed.), § 235.

3. Hall v. Marks, 34 Ill. 358. Compare High Extraord. Rem. (2nd ed.), $235; Grinstead v. Buckley. 32 Miss. 148. Miscellaneous.-- Under Georgia code, § 242, a judge of the superior court, although not disqualified, may call in another judge. Harrison v. Hall etc. Co., 64 Ga. 558. In Missouri, under a former constitution, a circuit judge could only procure another judge for the whole business of the term, not for a particular case. Gale v. Michie, 47 Mo. 326; State v. Shea, 95 Mo. 85. See Harper v. Jacobs, 51 Mo. 296. But a later constitution authorizes the call ing of another circuit judge for a term, or part of a term, in any court in any county. State v. Shea, 95 Mo. 85.

4. Ře Lynch, 9 Abb. N. Cas. (N. Y.) 69; Worsham v. Murchison, 66 Ga. 715. See also Thompson v. State, 9 Tex. App. 301, decided under Texas Criminal Code, art. 572.

Where substitute judge is called in by the president judge, it is necessary that a proper certificate, setting forth the disqualification, etc., and the call on the president substituted to hold the regular term-signed by the proper president-should be filed of record and entered on the minutes of the court, as the evidence of the authority to hold the courts, and of title to the compensation. Re Application of the Judges, 64 Pa. St. 33. See also Bear v. Cohen, 65 N. Car. 511; Brown v. Buzan, 24 Ind. 194.

5. Re Application of the Judges, 64 Pa. St. 33; Re Rhinebeck Village, 19 Hun (N. Y.) 346; People v. Petty, 32 Hun (N. Y.) 443.

6. State v. Hosmer, 85 Mo. 553; Rudd v. Woolfolk, 4 Bush (Ky) 555; Bates v. Casey, 61 Tex. 593. Compare Chrisman v. Graham, 51 Tex. 454.

Oath. An attorney acting as the special judge must be sworn, excepting in Georgia, where his oath on admission to the bar is thought enough. Reeves v. Graffling, 67 Ga. 512; Thomp

son

v. State, 9 Tex. App. 301; Tex. Crim. Proc., art. 572; Herbster v. State, So Ind. 484; Kennedy v. State, 53 Ind. 542, 546, where the court observed: "It would be monstrous to hold that an attorney where the objection is made may sit in judgment upon the life, liberty, character and property of a citizen without having taken the oath prescribed by the constitution and the statute." See also Harper v. Jacobs, 51 Mo. 296; Evans v. State, 56 Ind. 459; Fawcett v. State, 71 Ind. 590; Case v. State, 5 Ind. 1; Rudd v. Woolfolk, 4 Bush (Ky.) 555; Slone v. Slone, 2 Met. (Ky.) 339. Under Texas criminal code entry of the taking of the oath must be part of the record. Thompson v. State, 9 Tex. App. 649. Acquies

sumed, on appeal,1 or that a second appointment was made for sufficient reason.2 But of course infirmity appearing on the record cannot be ignored. And if the authority be denied in the court below, the record shall state that the prerequisites were observed.4

Notice to a substitute judge, though required by statute, is not, it seems, jurisdictional, and need not be entered of record.5 In States where parties may consent to having a special judge in proper cases therefor, if no objection is made below, the appellate court will assume that objection is waived.6 Denial of the record is not permissible. It cannot be denied by proof aliunde to show that a stranger sat, or that his commission is defective.8

In Indiana, appointment must, under the statute there, be “in writing"; and the danger lurking in oral agreements between the parties, where they are permitted to make selection, led the prosecuting attorney in 1exas to refuse to recognize oral consent of defendant.10

The objection to the regular judge ought to be made at or before entering on the trial. But, where absolute prohibition by statute exists, the proceedings before a disqualified judge are coram non judice, and void.

cence of parties may dispense with oath in Kentucky. Vandevor v. Vandevor, 3 Metc. (Ky.) 137; Salter v. Salter, 6. Bush (Ky.) 624.

1. Harper v. Jacobs, 51 Mo. 296. 2. Fassinon v. State, 89 Ind. 235. See also Cincinnati etc. R. Co. v. Rowe, 17 Ind. 568; Hutts v. Hutts, 51 Ind. 581, 584; Glenn v. State, 46 Ind. 368, and cases cited; Singleton v. Pidgeon, 21 Ind. 118.

3. Where the record is not silent, but shows that a special judge sat illegally, the appellate court must declare the error fatal. Haverly etc. Min. Co. v. Howcutt, 6 Colo. 574.

Kentucky. Where appointment is entered of record, then the qualification or oath must be stated also, the Kentucky law requiring such oath. Rudd v. Woolfolk, 4 Bush (Ky.) 555.

4. Kennedy v. State, 53 Ind. 542. 5. Wood v. Franklin, 97 Ind. 117, 119; Benjamin v. Evansville etc. R. Co., 28 Ind. 416.

Naming particular judge seems to be unnecessarv under such a statute, so one is notified. Wood v. Franklin, 97 Ind. 117, 119.

Notice by and to Substitute Judge. See Walker v. Sneed, 7 Ark. 233; State v. Greenwade, 72 Mo. 304.

6. Waiver of Objection by Parties.Kennedy v. State, 53 Ind. 542, 545; Miller v. Burger, 2 Ind. 337; Negley v.

Wilson, 14 Ind. 215; Seymour v. State, 15 Ind. 288; Redwine v. State, 15 Ind. 293; Comm'rs of Fountain Co. v. Coats,. 17 Ind. 150; King v. Slate, 15 Ind. 64, 67; Danneburg v. State, 20 Ind. 181; Feaster v. Woodfill, 23 Ind. 493; Barnes. v. State, 28 Ind. 82; Kambieskey v. State, 26 Ind. 225; Watts v. State, 33. Ind. 237; Hyatt v. Hyatt, 33 Ind. 309; Winterroud v. Messick, 37 Ind. 122; Glenwood v. State, 116 Ind. 485; Slonev. Slone, 2 Metc. (Ky.) 339; Vandever v. Vandever, 3 Metc. (Ky.) 137; Rudd v. Woolfolk, 4 Bush (Ky.) 555; Salter v. Salter, 6 Bush (Ky.) 624; Grant v. Holmes, 7 Mo. 109; Harper v. Jacobs, 51 Mo. 296. And see Tucker v. Allen, 47 Mo. 48S.

In Herbster v. State, So Ind. 48, objection was made in the court below and in that way became part of the record.

7. Winchester v. Ayers, 4 Greene (Iowa) 104.

8. Kennedy v. Com., 78 Ky. 447. 9. Kennedy v. State, 53 Ind. 542, 544; Herbster v. State, So Ind. 484. See also Evarts v. State, 48 Ind. 422.

10. Thompson v. State, 9 Tex. App.

301.

11. Dolan v. Church, 1 Wyo.187. See State v. Greenwade, 72 Ma. 298.

Under Rule of Court.-Scherer v. In

german, 110 Ind. 440. See also infra,. this title, DISQUALIFICATION.