State Ex Rel. Attorney General v. Martin , 125 Okla. 24 ( 1927 )

First: Can the Supreme Court in an action for contempt declare members of the Supreme Court disqualified by reason of interest, bias or prejudice? It is contended by counsel for the court that the Supreme Court and the members thereof have no legal authority to disqualify a member of the Supreme Court in a proceeding of this character, and we will, therefore, dispose of this question first. Section 6, art. 2, of the Oklahoma Constitution provides:

"Right and justice shall be administered without sale, denial, delay or prejudice."

Section 2629, Compiled Oklahoma Statutes, is as follows:

"No judge of any court of record shall sit in any cause or proceeding in which he may be interested, or in the result of which he may be interested, or when he is related to any party to said cause within the fourth degree of consanguinity or affinity, or in which he has been of counsel for either side or in which is called in question the validity of any judgment or proceeding in which he was of counsel or interested, or the validity of any instrument or paper prepared or signed by him as counsel or attorney, without the consent of the parties to said action entered or record: Provided, that the disqualifications herein imposed shall not exclude the disqualifications at common law."

And section 2632, Compiled Oklahoma Statutes, is as follows:

"No Justice of the Supreme Court of this state or Judge of the Criminal Court of Appeals shall participate in the decision of any cause in such court appealed thereto from a lower court of said state, in which court such Justice or Judge was judge presiding at the trial of such cause; and the same qualifications shall apply to the members of the Supreme Court and the Criminal Court of Appeals, as to other courts of record; and, whenever any member of either of said courts is disqualified, the same shall be entered of record in such court, and such disqualifications of such member shall forthwith be certified by the clerk of such court to the Governor of the state, who shall appoint some members of the bar of the state, possessing, the same qualifications as the members of such court, to sit as special judge in said cause."

It is apparent from the two sections above quoted that the judge of any court of record who is disqualified under the common law would be and is disqualified in this state, even though the disqualification be based on some cause other than those causes detailed in the statute, and that this is equally true whether the judge be a district judge or a Justice of the Supreme Court. It is a maxim of common law, the wisdom and propriety of which will not be questioned, that "no one should be a judge in his own cause." When it is determined that a judge of a court of record is prejudiced in a cause he is incompetent to sit in said cause and the exercise of jurisdiction therein by him in adjudging the issue is beyond his power. It seems to be the weight of opinion in the older states that common law courts had the inherent power to order a change of either the place of trial or the judge for the purpose of securing an impartial trial, and in the matter of transferring the venue or place of trial all the reasoning tends to establish the fact that the end in view is that justice be done the person charged. Apart from authority it is inconceivable that the people of the English race intended at any time to deprive their courts of the power to secure to every citizen an impartial trial before an impartial judge and an unprejudiced tribunal.

"It is the right of every citizen to be tried by judges as free, impartial and independent as the lot of humanity will admit."

In order to assure justice to the litigant no consideration should be allowed to enter the mind of those who are to decide the issue other than the single desire to declare the truth according to the law and evidence.

"A court of general jurisdiction ought not to be left powerless under the law to do within reason all that the conditions of society and human nature permit to provide an unprejudiced panel for a jury trial. * * * The courts of general jurisdiction under such a constitution have the inherent power to do whatever may be done under the general principles of jurisprudence to insure to the citizen a fair trial, whenever his life, liberty, property, or character is at stake. The possession of such power involves its exercise as a duty whenever public or private interest require."

The statements quoted above were made by the court in the case of Crocker et al. v. Justices of Superior Court,208 Mass. 162, 94 N.E. 369. In that case the question arose over the right of a defendant to a change of venue, but the reasoning applies equally in the case at bar.

In the case of Day v. Day, 12 Idaho, 556, 20 Ann. Cas. 260. the syllabus is as follows:

"Court — Duty to Administer Justice — Constitutional Law. By the provision of the Idaho Constitution (art. 1, see. 18) that 'right and justice shall be administered without sale, denial, delay, or prejudice,' as well as by the unwritten dictates of natural justice, the courts of the state are commanded to administer justice without prejudice.

"Actions — Change of Venue — Prejudice of Judge — Constitutional Law. The provision of the Idaho constitution that 'right and justice shall be administered without sale, denial, delay, or prejudice,' is self-executing, and the Legislature cannot, by failing to provide by proper legislation that the prejudice of the judge is a cause for a change of the place of trial, nullify the constitutional provision, and thus compel the trial of the case before a prejudiced judge.

"Actions — Change of Venue — Prejudice of Judge. Such provision of the Idaho Constitution makes the prejudice of a judge a ground for his disqualification; and the provision of the state statute (Rev. Stat. 4125) that 'the court may on motion change the place of trial * * * when from any cause the judge is disqualified, from acting,' is broad enough in its terms to include disqualification on the ground of the prejudice of the judge, though the statute was enacted before the adoption of the Constitution.

"Courts — Duty to be Unprejudiced. Public confidence in the judicial system and courts of justice of the state demands that cases shall be tried by unprejudiced and unbiased judges."

We quote from the opinion as follows:

"It is a primary idea in the administration of justice that a judge must not decide judicial matters from bias, prejudice, and partiality, and our Constitution clearly prohibits a judge who has bias or prejudice in a case from trying it. The aim and object of the framers of the Constitution was to preserve judicial tribunals from discredit, and the Supreme Court of Montana referring to this matter in Stockwell v. White Lake Tp., 22 Mich. 341, said: 'The court ought not to be astute to discover refined and subtle distinctions to save a case from the operations of the maxim, when the principle it embodied bespeaks the propriety of its application. The immediate rights of the litigants are not the only objects of the rule. A sound public policy which is interested in preserving every tribunal appointed by law from discredit imperiously demands its observance.' Can it be contended in the face of the command of said provision of our Constitution that the Legislature could legally declare that the bias and prejudice of a judge should be no cause for a change of venue? I think not. And if, in the face of that provision, the Legislature (568) neglects to specify in a statute that the prejudice of the judge is a ground for a change of the place of trial, then the very object and purpose of that provision of the Constitution may be nullified and set at naught. Regardless of the statutory provisions, where such a state of facts appears, as in the case at bar, and a change of place of trial is demanded because of the prejudice of the judge, a change of venue, or at least a change of judges, should be granted to preserve from discredit the judiciary of the state. No technical refinement of argument can convince the people that a prejudiced judge can fairly try a case between his friend and his foe. Such a thing might occur, but the general public would not look upon such a trial as an administration of justice without prejudice. The statute provides the manner, the procedure by which a change of venue may be had, and the procedure there provided is a proper procedure in a case where the application is made on the ground of the prejudice of the judge."

As hereinbefore stated, the Constitution of Oklahoma says: "And right and justice shall be administered without sale, denial, delay or prejudice;" this being the identical language of section 18, art. 1, of the Constitution of Idaho.

The contention is made that respondent filed an application for a writ of mandamus in the Supreme Court of the state of Oklahoma on February 1, 1927, the same being cause No. 18123, and because that application was denied by the Supreme Court, it is binding on this court, and we are now precluded from considering this question. That matter was presented to and considered by a court, the members of which, except Justices Riley and Clark, prior thereto, certified their disqualification in the case at bar. In the cause now before us, presenting the same questions and on identical grounds as the motion which was presented to the Supreme Court, the members of which had disqualified, we hold that the action of the Supreme Court in denying the writ in that case does not preclude the consideration of the application here by this court.

It is earnestly insisted that, even granting that these Justices, Riley and Clark, are under the law disqualified to participate in this proceeding, there is no power vested in the majority of this court to so declare them disqualified, and that they are the sole and only judges of their own qualifications, and that if they abuse this discretion, vested in them by law, the only remedy is by a proceeding for impeachment. This does not appear to us to be the law. Sections 2629 and 2632. C. O. S. 1921, hereinbefore set forth, provide:

"No judge of any court of record shall sit in any cause or proceeding in which he may be interested or in the result of which he may be interested."

Further:

"The same qualifications shall apply to the members of the Supreme Court and the Criminal Court of Appeals as to other courts of record."

The question as to whether or not the majority members of this court may declare an individual member disqualified by reason of interest or prejudice has not been passed upon directly by this court so far as we are able to determine and, in fact, it is a matter that from its very nature seldom arises. Ordinarily, a judge on the first intimation of his disqualification voluntarily withdraws as did the seven judges in this case. However, we find that our position is fortified by authority.

In Trustees of Internal Improvement Fund, Appellant, v. William Bailey, Appellee, 10 Fla. Rep. 213, this question was before the Supreme Court of that state. The case had been originally decided by the Supreme Court of that state, with judges participating, who, it was alleged, were interested and disqualified. The action being one in which the state was concerned, the Legislature enacted a law directing the Attorney General to file an application before the Supreme Court of that state for rehearing. The Attorney General complied with the mandate of this law, filed the motion, and upon hearing the facts appeared as follows:

The Chief Justice of the court stated that he was not nor is not now a stockholder in said company, and that in the organization of the company he subscribed a certain amount taking certificates of stock payable to his six children, five of these children being minors at the time and that these shares were a gift to his children.

An associate Justice stated that he was a stockholder in a certain railroad alleged to be affected by the opinion at the time the case was decided, but that since the decision, he had transferred his stock to another person.

Under this statement of fact it was submitted for the decision of the court, whether or not these two Justices were disqualified in the case, and also whether or not the Supreme Court had a right to so declare. The court in passing upon these propositions said:

"It is provided in the 5th section of the Act organizing the Supreme Court of Florida, passed the 11th day of January, 1851, 'That whenever, from any cause, any one or two Justices of the Supreme Court are disqualified or disabled from hearing and determining any cause brought before them, it shall be the duty of the Justices of the said court to notify the same to any one or two judges of the circuit court, as the case may be, and at the time and place where such causes shall be set for hearing, and it is hereby made the duty of said circuit judge or judges, upon receiving such notice, to attend at the time and place designated, and he or they shall be and are hereby invested with full authority, in conjunction with the remaining Justice or Justices of the Supreme Court, to hear and determine the causes of which they were notified as aforesaid.'

"By an Act passed the 4th of December, A.D., 1862, entitled 'An act in relation to the qualification of judges,' it is enacted, 'That no judge of any court or justice of the peace shall sit or preside in any cause to which he is a party, or in which he is interested, or in which he would be excluded from being a juror by reason of interest, consanguinity, or affinity to either of the parties; nor shall he entertain any motion in the cause other than to have the same tried by a contempt tribunal.' 2nd. 'That the judge or justice so incompetent, shall retire of his own motion, and without waiting for an application to that effect; that any and all judgments, decrees and orders, made by a judge or judges so incompetent, shall be of no force or validity, and are hereby declared to be null and void, except an order for the trial of the cause as hereinbefore provided.'

"It will readily be seen that, to render the circuit court judge eligible and competent to sit as one of the Supreme Court, it is absolutely necessary the retiring Justice of the Supreme Court should be disqualified or disabled from hearing and determining the cause. This disqualification must be a legal one, not an imaginary one, nor one of feelings of delicacy, nor of mocked inconsistency, but must be valid in law. Were a circuit court judge to sit in a case in which the retiring Supreme Court Justice was not in law disqualified, a decision made by him would be just as much coram non judice, as it would be where a Supreme Court Justice sits in a cause in which he was disqualified. It is the disqualification of the Supreme Court Justice that authorizes the order for calling in a circuit court judge.

"The Act of December, 1862, in relation to the qualification of judges, is nothing more than what was the law before and has always been so considered in this state, excepting, it may be, in so much thereof as declares judgments, decrees, and orders, made by an incompetent judge, void instead of voidable. Nor is the provision that an incompetent judge shall retire of his own motion, etc., anything but what has been the uniform practice of this court, in cases where the incompetency of the judge for any cause, was clear, certain and manifest; so in cases where there has been a doubt or question as to the disqualification of one of the Justices, the question has been referred to the decision of the court. This seems to be the practice of other states, where, like our own, no provision is made as to how and in what manner the question of disqualification is to be determined. Such is the course pursued in Tennessee, as will be seen by reference to Waterhouse v. Martin, 7 Peck, 374, wherein the court says it does not rest with the judge alone, whose right to sit is questioned. A proper administration of justice requires that no circuit court judge shall sit in a case where there is no disqualification, as much as it does that no disqualified Supreme Court Judge shall act. There being no mode of determining this question, provided for by statute, we hold that the safest and legal way of determining the same is by a decision of the court, in cases where there is any question or doubt as to the qualification of the judge. The degrees of consanguinity, affinity, and the question as to whether a judge has an interest or not, is one in which the purest and best legal minds may in all honesty differ. Such has been found to be the case in other states, not only as to qualification of judges, but as to competency of jurors and witnesses.

"There is no doubt but that the same objection must lie against a judge as against a juror; because one is to judge of the law, the other of a fact — Bellows v. Pearson, 19 Johns. 172; Pearce v. Atwood, 13 Mass. 341.

"With jurors, a principal challenge is such that where the cause assigned is such that it carries with it prima facie evident marks of suspicion, either of malice or favor, as that a juror is kin to either party within the ninth degree — that he has been formerly a juror in the same cause — that he has an interest in the cause. — 3 Blackstone's Com. 363.

"Interest, in the issue to be tried, is a good and sufficient ground of challenge to a juror; so interest in the question to be determined by a judge in this court, is a good and sufficient disqualification. No man can sit in judgment in his own case. Natural reason and natural justice forbid it, and so does the common law.

"No matter how slight the interest which a juror may have in the issue; if he has any, the common law will not permit him to try the cause — so with a judge.

"Says Lord Mansfield in Hesketh v. Braddock, 3 Burrows, p. 1856: 'The law has so watchful an eye to the pure and unbiased administration of justice, that it will never trust the passions of mankind in the decisions of any matter of right. If, therefore, the sheriff, a juror, or a witness be in any sort interested in the matter to be tried, the law considers him as under an influence which may warp his integrity, or pervert his judgment, and therefore will not trust him. The minuteness of the interest won't relax the objection. For the degrees of influence can't be measured — no line can be drawn, but that of a total exclusion of all degrees whatsoever'."

It will be observed that under the laws of the state of Florida, it was provided what constitutes disqualification for Justices of the Supreme Court, but no provision was made under the law as to how or in what manner the question of disqualification was to be determined. That court held that the question should be determined by the court the same as any other question properly before it, and we so hold.

In a very early Tennessee case entitled "Waterhouse v. Martin, 7 Peck's Reports, 374," the question of the disqualification of certain members of the Supreme Court of that state by reason of their relationship to parties in the action arose, as well as the question as to the power of the Supreme Court to disqualify these parties therefor, and also as to whether this power was vested solely and only in the judge so affected or in the court itself. The court in the opinion says:

"Having prosecuted a very industrious research into the books, and consulted together upon the consequences of every interpretation, which could possibly be given to the term 'affinity,' as used in the Constitution of this state, as well as into the arguments and reasons which either oppose or maintain the position, that the judges of this court, and not one of them alone, must determine all questions respecting the meaning of every clause and sentence in the Constitution, and laws of the state; two of us have come to the following conclusions:

"That it is the duty of this court, and belongs to it only, to decide the meaning and extent of the term 'affinity,' as used in our Constitution, as it does to decide and fix the meaning of every other term used therein. It is peculiarly proper to fix a standard, in the instance of judges or justices excepted to for affinity, to obviate mistakes in the beginning, and to prevent the litigation which would almost inevitably follow the supposition, that in assuming jurisdiction the judge or Justice had not acted correctly; for whatever course he might take, it would be equally probable in an unsettled state of the question, that he might be wrong. Many lawsuits might spring from this uncertainty, and must continue forever to spring up, till judicially settled by the supreme tribunals of the country.

"These controversies, when brought before this court, must either be settled by the judge alone, who assumed jurisdiction, or by this court, and if by the latter, then eventually this question must be settled by this court, and if ultimately, why not primarily? If ultimately, to correct mischief, trouble and expense, why not in the first instance to prevent them? Why leave every judge to pursue a different course, withholding from all any common standard to which they might all conform, exposing him to complaint, whatever course he may take? Was it the intent of the Constitution, that he should be thus implicated in difficulty? And that the public should be exposed to the danger of his mistakes, and to the confusion which the mistakes of different judges, in the various courts of the country, might occasion? Why should be convention have desired to see such a state of things? Why should it desire that this court should not interfere, and prevent them by a timely exposition? Two judges may not exclude a third from his seat; but they may fix the rule by which his conduct is to be regulated. This court, though it will not say to a justice of the peace or any inferior judge, you shall not sit in any particular cause, may yet set before him the rule, to which it is expected he will conform. And if, in the case of an inferior judge, this court will correct his mistake in assuming jurisdiction, why not, also, the same mistake, committed by a judge of this court, by giving redress to the party injured? And why not ascertain the rule to prevent mistakes, as well for the latter as for the former? The mistakes of the judge are to be corrected by impeachment, it is said. Will a judge be answerable in any case, for a mistake in judgment, when he has done the best he can? God help us if every error we commit must be the subject of impeachment. The rule of the common law is, that no judge is criminally responsible for an error in judgment; 2 H. P. C. ch 13, sec. 20; 1 Burr. 556, 2 Burr. 785, 1162; 3 I. T. 653; nor would the people of this state ever think of making him so, though they might be displeased if he would not express his honest opinion; and then what relief has the injured party, if the judge cannot be impeached and if none but the judge can decide the point which he has appealed from? Suppose this 'favorite' remedy actually resorted to, and the judge, convicted of the error complained of, will the party injured be relieved thereby? Must he not still come to this curt for judgment upon the point, in which the error is supposed to be committed? Will the pleasure received from the impeachment be exquisite enough to compensate for the wrong he has suffered? If not, then it is better not to lay, as it were, a trap for the judge, into which he must fall, whatever course he pursue, and not without involving some innocent victim. All this may be prevented by a timely and candid exposition of the dubious sentence, when the assumption of jurisdiction is complained of, and the proceeding is alleged to have been coram non judice, whether of a special judge or of a judge of this court; and upon the coming of that complaint into this court, suppose there are two judges who think the jurisdiction wrongfully assumed, must the opinion of a third, who thinks otherwise, prevail? Must his opinion outweigh that of the other two? If not, then the assumption of jurisdiction in the first instance, without the approbation of the other two, is but the beginning of new controversies, engrafted upon the old one, more embarrassing than the old one. If it must outweigh the others, then a grievous error may be committed, for which there is no redress, and the sufferer can only appeal from him who did the injury to him who did it. The end to which the reasoning employed conducts us is one where great injustice may be done, the judge be not answerable, and redress be placed completely beyond the reach of the sufferer. Either this is the result, or the doubtful point must be settled by a majority of this court, and should be settled in the first instance, rather than in the last resort. * * *

"It is certainly not a forcible argument in favor of the position, that each judge, acting upon his own judgment and each differing from all the others, will render this cause forever undeterminable; it is, on the contrary, the strongest of arguments in refutation of the position unless it be more systematic to have confusion than regularity, and causes of perpetual duration rather than causes to be speedily determined, unless it be better to have uncertainty in the law rather than certainty; and judges impeached for not knowing how to act, rather than judges proceeding regularly by an ascertained rule. If it be better not to have these inconveniences, that reasoning which leads to opposite results, is certainly to be the most approved; and this is, that a common standard should be provided for all the people of this state, judges, justices, and all others, by which to know who shall judge them, and who not; to whom to render obedience and to whom not. And that such standard must be established by the supreme judges of the land, who finally must settle all doubts upon the Constitution and laws of this state."

"This is a point in which a majority of the judges of this court very clearly concur."

It is contended that the rule announced herein as to the disqualification of judges does not apply in contempt cases, that every judge in this state has the sole and exclusive right to hear and determine, in the manner provided by law, all questions of contempt arising in his court. We recognize the force of this argument and agree that, where the disqualification is alleged to and does arise out of matters inherent in the contempt itself, the judge's disqualification may not be urged, but where it appears that the disqualification of the judge is apparent on account of extraneous matters not connected with the contemptuous act itself, the judge may then be disqualified as in other cases.

In the case of Back et al. v. State of Nebraska, 75 Neb. 603, the fourth paragraph of the syllabus is as follows:

"Contempt — Transferring Case. Upon prosecution for contempt in the district court, the judge, before whom the cause is regularly to be heard, may refuse to transfer the cause to another judge of the same court for hearing, unless it is made to appear by due proof that a fair and impartial trial cannot be had before him, or that some other ground for change of venue prescribed by statute exists."

In Lamonte v. Ward et al., 36 Wis. 558, it is said:

"It is stated in the complaint that the case of Lamonte v. Pierce was commenced in the Milwaukee county court; that all of the proceedings in the cause, until after the alleged contempt was committed by Pierce, were had in that court; and that pending an application to punish Pierce for such contempt, the venue was duly changed to the circuit court. It is now claimed, on behalf of the appellants, that such change of venue was without authority of law, and, consequently, that the circuit court never obtained jurisdiction of the proceeding. The statute provides for the removal from the county to the circuit court of any cause or matter which shall come before the county court or judge, in which the judge shall be interested, or in which he shall have acted as counsel for any party R. S. ch. 117, sec. 59, as amended by ch. 33, Laws of 1862 (Tay. Stats. 1323, sec. 84). If this proceeding is not a cause within the meaning of the statute, it is, (certainly, a matter, and we have no doubt it is within the intention as well as the letter of the statute. The complaint does not state the reasons for the removal of the proceeding to the circuit court, and, in the absence of averment, we must presume, in favor of the regularity of such removal, that it was for one of the causes specified in the statute. It follows that the first ground of demurrer is not well assigned."

The Constitution prescribed that:

"Right and justice shall be administered without sale, denial, delay, or prejudice." Section 6, art. 2, Bill of Rights.

Our interpretation of this provision of the Constitution is that a judge is prohibited from trying a case in which he is prejudiced by or for either party. In Ex porte El is.3 Okla. Cr. 225, 105 P. 186, 25 L. R. A. (N. S.) 653, Ann. Cos. 1912A. 863, the court said:

"The framers of our Constitution guarded with special care our judiciary and tried to place it above suspicion of unfairness, passion, or prejudice, so that public confidence in our courts would not he shaken, and provided that right anti justice should be administered without prejudice. By virtue of this constitutional provision, who can doubt or question the absolute and unqualified right of the citizen, when called to answer in a court of justice, to demand that his trial shall he before an impartial judge and by impartial jurors? Any other doctrine would place the rights of the citizen which were intended to be protected by this constitutional provision at the mercy or control of the court or judge thereof."

The Supreme Court of the state of Oklahoma construes this section of our Constitution in the case of Son v. Linebaugh,101 Okla. 291, 225 P. 686, relative to the disqualification of a district judge. The court, speaking through Justice Nicholson, says:

"While the respondent insists that he Is nor unfriendly to either of the petitioners, anti that he can accord them a fair and impartial trial, and while we do not doubt his sincerity in this regard, yet the question is nor so much whether he feels that he would he able to give the petitioners a fair and impartial trial, as whether his utterances and actions preclude reasonable men from feeling that a fair and impartial trial can be had before him, and that he is disinterested in the result.

"(1,2) Section 6, art. 2, of the Constitution, requires that 'right and justice shall be administered without sale, denial, delay, or prejudice.' The basic principle on which the law rests is that every litigant is entitled to have his rights determined by an impartial and disinterested tribunal, and one that has not prejudged his case. It matters not that a judge is honest, and that he actually believes he can give litigants a fair trial; if he has discussed the merits of a case, and has formed an opinion before a trial, he is bound to enter upon the trial more or less biased and prejudiced. This should not be. Judges should refrain from partisanship in cases pending before them, and should not permit the clamor of the public to warp their judgment. The judiciary is the safeguard of the nation and the state, and the members thereof should so conduct themselves as to inspire the confidence of all, so that every one will feel and know that in the courts their rights will be protected. This confidence cannot exist, if judges persist in discussing out of court the merits of cases pending before them and forming, and expressing opinions thereon before a hearing in the orderly course of procedure, and where this has been done the judge should not, in justice to the litigant, insist upon being permitted to sit in the trial of his case.

"In State ex rel. Warner et al. v. Fullerton, District Judge,76 Okla. 35, 183 P. 979, this court said:

" 'Courts should scrupulously maintain the rights of every litigant to an impartial and disinterested tribunal for the determination of his rights. All are interested in the integrity, independence, and impartiality of the judiciary, the most important and powerful branch of our government. Judges presiding over the courts should be unbiased, impartial, and disinterested in the subjectmatter in litigation, and it is of the utmost importance that all doubt or suspicion to the contrary be jealously guarded against, and, if possible, completely eliminated, to the end that we may maintain and give full force and effect to the high ideals and salutary safeguards written in the organic law of the state. State ex rel. Mayo v. Pitchford, 43 Okla. 105, 141 P. 433; Yazoo M. V. R. Co. v. Kirk, 102 Miss. 41, 58 So. 710, 324, 42 L. R. A. (N. S.) 1172, Ann. Cas. 1914C, 968'.

"To like effect are Dennison v. Christopher,19 Okla. Cr. 467, 200 P. 783; Robertson v. Bozarth, 87 Okla. 102,209 P. 742.

"The evidence in the cases at bar convinces us that the respondent has prejudged the petitioners' cases: that he cannot accord to them that fair and impartial trial guaranteed to them by the Constitution and to which they are justly entitled under the law; and that he should certify his disqualification."

The Oklahoma Supreme Court has rendered a number of decisions which sustain our position. We quote from some of them as follows:

"It is important, not only that this case be tried by a fair and impartial judge, but also that this court shall see to it that no suspicion attach to the course of judicial proceeding, in order that it may be made apparent, in so far as possible, to the community, that the judicial proceedings are impartial and beyond reproach; this to the end that the confidence in our judicial system may be sustained. Under the circumstances surrounding the case pending in Carter county, involving this election contest, it would be impossible for respondent to give to the trial that calm and unprejudiced consideration which would be given a judge wholly separated from the turmoil, and to allow respondent to try this cause under these circumstances would be, in our judgment, to weaken the confidence of the public in the integrity of the court, and this we say, even though respondent should feel in his heart that as to the matters involved he is able to give a fair and impartial trial. We are strengthened in this conclusion by the acts of respondent, since the cause in question came within the jurisdiction of his division of the court." State ex rel. Garrett v. Freeman, Judge of District Court of Carter County,102 Okla. 291, 229 P. 296, 297.

"In order to maintain and foster proper respect and confidence of the people of the courts, the courts must be presided over by unbiased, impartial, and disinterested judges, and all doubt and suspicion to the contrary must be jealously guarded against. McCullough v. Davis, 11 Okla. Cr. 431,147 P. 799; State ex rel. Warner v. Fullerton, 76 Okla. 35,183 P. 979; Dennison v. Christopher, Superior Judge,19 Okla. Cr. 467, 200 P. 783." Schulte v. Bolen, District Judge,90 Okla. 238, 216 P. 928.

"Moreover, the state has an interest in the standing, integrity, and reputation of its courts, and, when constitutional or statutory provisions forbid a judge from acting officially, his action is regarded as transgressing the public policy of the state. Such prohibitions are plainly intended, not only for the benefit of the parties to a suit, but for the general interests of society, by preserving the purity and impartiality of the courts and fostering the respect and confidence of the people for their decisions." 15 R. C. L. 530.

"We are not unmindful of the fact that the practice of disqualifying trial judges on the grounds of bias or prejudice may be subject to much abuse. Captious and unwarranted accusations of bias should be discouraged. On the other hand, much of the adverse criticism against the courts of this state may be traced to the interest, real or apparent, shown by trial judges either in the subject-matter of the suit or the ultimate judgment to be rendered in particular cases. And in order to foster confidence in the integrity and impartiality of courts, a presiding judge should be compelled to certify his disqualification where it appears probable that such judge would not afford the defendant a fair trial." Dennison v. Christopher, Superior Judge, 19 Okla. Cr. 467, 200 P. 783, 784.

We therefore hold that this court has the power, and it is its duty to consider this petition for a writ of mandamus on motion of respondent to disqualify these Justices of the Supreme Court from trying this case.

Second: Upon the record are these Justices, or either of them, disqualified from trying this case?

In considering this matter relative to Justice Riley we find that respondent says, and it is not denied, that there is now pending and has been pending for some months a certain action in the district court of Oklahoma county, Okla., wherein Justice Riley is plaintiff and in which he seeks to recover from O. O. Owens the sum of $200,000 damages because of an alleged libel; that respondent in this court is counsel in said cause for the said O. O. Owens.

As to said Justices respondent further says that there is now pending in the district court of Tulsa county, Okla., a certain action wherein O. O. Owens is plaintiff and these Justices are defendants and wherein said Justices are sued for $100,000 damages alleged to have been occasioned said O. O. Owens on account of the fraud of Said Justices Clark and Riley in causes before them as members of this court.

The allegation is made that the opinion of the Supreme Court in cause No. 13646 was written, prepared, and filed by Justice Clark, and was published as the opinion of this court, wherein it was shown that Justice C. W. Mason concurred, when in truth and fact said Justice Mason did not concur therein. That all of these suits are closely interwoven and grow out of decisions which were participated in by Justices Clark and Riley, and that respondent herein, H. B. Martin, is sole counsel for the said O. O. Owens in all of these pending causes. It is also to be noted that the citation in the case at bar was issued against both H. B. Martin, respondent herein, and O. O. Owens. The trial of one will necessarily involve the rights of the other. They are in fact joint defendants in this cause.

Respondent's answer to the charge is that he believes the facts stated in his motion are true. In the hearing of tints case, as we view it, this court must pass upon the truth of respondent's allegations in his answer. It seems to us that the circumstances would require these Justices to pass upon the merits of cases in which they are interested.

It is a matter of common knowledge that this litigation has been aired before the people of this state to a considerable extent. In view of the conditions as hereinbefore set out, are these Justices prejudiced or interested to such an extent as to probably prevent that fair consideration, which should be given by a judge to the interest of a litigant appearing before him? In view of the decisions of this court and the Criminal Court of Appeals of this state, to which we have referred herein, as well as the courts of other states, we answer this question in the affirmative. With the interest of these Justices in the litigation pending both in the suit in Tulsa county and the suit by Justice Riley in Oklahoma county and the allegations made therein, and the allegations made in respondent's answer herein, it is only reasonable for the ordinary mind to conclude that they are interested in the litigation now before us to the extent that they could not give that free, impartial and unbiased consideration to the respondent herein due every litigant in this court. It may be said that respondent is simply acting as attorney for O. O. Owens in all of this litigation and for that reason these Justices could have no prejudice against him, but, as is well known, the rule is for the attorney to make his client's case his case and as lawyers we know that the allegations in a pleading, after all the subject-matter is sifted and gone over, are as a rule confined to those allegations which the attorney decides are material. The attorney's interest is so closely interwoven with his client's interests that the result of the case affects the attorney, and this fact is well known to all lawyers, as well as judges, and the charge is a joint charge involving the joint acts of Owens as well as respondent In the case of Knickerbocker Ice Co. v. Gray, 165 Ind. 140, 72 N.E. 869, 6 Ann. Cas. 607, note page 610, it was held that a stenographer of an attorney of one of the parties to an action was disqualified by interest from writing the deposition of a witness for use on the trial. In this case at bar if Justices Clark and Riley participate they will be called upon to decide an Issue, which might vitally affect the result of the litigation in Tulsa county and in Oklahoma county now pending between these Justices and the client of respondent, wherein respondent is the only attorney engaged in behalf of his client. In Juliana v. State, 167 Ind. 421, 79 N.E. 359:

"The appellant, pursuant to a statute, was granted a change of judge in a criminal proceeding. At that time it was necessary for the regular judge to appoint the special one to hear the cause. A statute then in force denied a defendant more than one change of judge. Section 2078, Burns 1908. The regular judge appointed, as special judge an attorney who had been consulted by appellant for employment as his attorney, but who was never so employed. The appellant, notwithstanding the one change procured by him, objected to the appointment because the appointee was not disinterested. In reversing the judgment of conviction, and vacating the appointment of the special judge, the court quoted approvingly from Joyce v. Whitney,57 Ind. 550, 554, as follows:

" 'Judges are by no means free from the infirmities of human nature, and therefore it seems to us that a proper respect for the high positions they are called upon to fill should induce them to avoid even a cause for suspicion of bias or prejudice, in the discharge of their judicial duties.' "

These cases are cited in the case of State ex rel. Williams v. Ellis (Ind.) 112 N.E. 98. In the case of State ex rel. Linde, Atty. Gen., v. Robinson et al., 160 N.W. 512, being from the Supreme Court of North Dakota, the court said:

"As it appears that the determination on the merits of this controversy may affect the tenure of office of Associate Justices Bruce and Christianson, they signify their desires to be relieved from participating in a hearing of the merits of the controversy, if they can be permitted to be so relieved.

" 'It is now a universally recognized principle that 8 person cannot be a judge of his own cause, and any interest in the subjectmater of a suit will disqualify a judge to preside on the trial thereof. Authority to preside in his own cause cannot be conferred by positive enactment And, however broad the grant of judicial power may be, this rule remains operative, and gives rise to a tacit exception from the general words of the grant. But jurisdiction may be conferred where the interest is not direct, but remote; is not certain and palpaple, but contingent and problematical; is not great and important, but minute.' 23 Cyc. 576.

"The celebrated jurist, Judge Cooley (Cooley's Constitutional Limitations, pp. 592, 593) says:

" 'No one ought to be a judge in his own cause; and so inflexible and so manifestly just is this rule that Lord Coke has laid it down that 'even an act of Parliament made against natural equity, as to make a man a judge in his own case, is void in itself; for 'jura naturae sunt immutabilia,' and they are 'leges legum.' " This maxim applies in all cases where judicial functions are to be exercised, and excludes all who are interested, however remotely, from taking part in their exercise. It is not left to the discretion of a judge, or to his sense of decency, to decide whether he shall act or not; all of his powers are subject to his absolute limitations; and when his own rights are in question, he has no authority to determine the cause. * * * Accordingly, where the Lord Chancellor, who was a shareholder in a company in whose favor the Vice-Chancellor had rendered a decree, affirmed this decree, the House of Lords reversed the decree Oil this ground, Lord Campbell observing: "It is of the last importance that the maxim, 'No man is to be a judge in his own cause,' should be held sacred. And that is not to be confined to a cause in which he is a party, but applies to a cause in which he has an interest." "We have again and again set aside proceedings in inferior tribunals, because an individual who had an interest in a cause took part in the decision.' And it will have a most salutary effect on those tribunals, when it is known that this high court of last resort, in a case in which the Lord Chancellor of England had an interest, considered that his decree was on that account a decree not according to law, and was set aside. This will be a lesson to all inferior tribunals to take care, not only that in their decrees they are not influenced by their personal interest, but to avoid the appearance of laboring under such an influence.'

"That the interest of Justices Bruce and Christianson is not so direct as to disqualify them from participating in the merits of this controversy is supported by a very high authority. See Duncan v. McCall, 139 U.S. 449, 11 Sup Ct. 573, 35 L.Ed. 219; 23 Cyc. 579. But in this state the Justices of this court have refrained from sitting (even though not legally disqualified) in cases wherein it might appear that they had any interest whatever. Thus, in many states trial judges subsequently elected members of appellate courts are permitted to, and do, sit in review upon their own judgments, 23 Cyc 588, 589. This, however, has never been done in North Dakota. This court has constantly recognized not only the duty of rendering righteous and honest judgments; it has, also, recognized that:

" 'Next in importance to the duty of rendering a righteous judgment is that of doing it in such a manner as will beget no suspicion of the fairness and integrity of the judge.' People v. Suffock, 18 Wend. (N.Y.) 550.

"This declaration has met with the approval of many American courts. See In re Conant, 102 Me. 477, 67 A. 564. 120 Am. St. Rep. 512. Consequently, while Justices Bruce and Christianson are not legally disqualified from participating in a hearing and determination of the merits of this controversy, it is the unanimous opinion of the entire court, as now constituted, that in order to comply with the highest principles of the ethics of the bench, they should be excused from so participating, if they can be legally permitted to do so."

The question of the interest of a judge in litigation depends upon the circumstances of each case.

In Gill v. State, 61 Ala. 169, the court says:

"According to the stern morality of the common law, a judge is required to be legally indifferent between the parties. Any, the slightest, pecuniary interest in the result disqualifies."

And the same court, in Ex parte Cornwell, 144 Ala. 497, 39 So. 354, says:

"Any interest, the probable and natural tendency of which is to create a bias in the mind of the judge for or against a party to the suit, is sufficient to disqualify. The judge is human, and human nature at best is weak, and as far as it is possible a perfect equipoise should always be preserved in the administration of justice by the courts. Pecuniary interest in the result of the suit is not the only disqualifying interest."

"In Medlin v. Taylor, 101 Ala. 239, 13 So. 310, the probate judge, whose qualifications to sit in the cause were under review, was held not to have any disqualifying interest in the result of the case within the provisions of the Constitution or statute. He had, however, a personal interest in the similarity of the contest then being heard, and that of his own pending in the circuit court, and the opinion concludes: 'It is the opinion of the court, however, that under the doctrines of the common law, aside from our constitutional and statutory provisions, he had such a personal interest in the questions involved in the contestation of Medlin, — in the nature of things, such a bias in favor of one of the parties of the case, — as disqualified him to hear and determine the same, and justified his action in declining so to do.' See, also Bryce v. Burke, 172 Ala. 219, 55 So. 635.

"In Moses v. Julian, 45 N.H. 34, 84 Am. Dec. 118, is the following pertinent language: 'It is the right of every citizen to be tried by judges as impartial as the lot of humanity will admit' This is but the expression of a well-known rule of universal justice everywhere recognized. * * * It is one of the great principles of the common law, for which the people of England had struggled for ages, and which they ultimately succeeded in establishing against the strenuous efforts of a tyrannical government. We can have no higher authority than this for detaunting as illegal everything which interferes with the entire impartiality of every legal tribunal." State ex rel. Miller v. Aldridge, 212 Ala. 660, 103 So. 835.

Having in mind the litigation and charges hereinbefore set forth, the issues joined therein, the inevitable interest of these two Justices in the final outcome thereof, together with the fact that the respondent as a member of the bar of this court has been and now is active counsel for O. O. Owens in all such pending litigation and is here jointly charged with O. O. Owens for contempt of this court, we are of the firm and fixed opinion that Justices Clark and Riley are, within the law of this state, in fact disqualified to try respondent in such a manner as will bring no suspicion of the fairness and integrity of the court and its decision in this cause.

We do not doubt the conviction of each of these Justices that they can give a fair and impartial trial herein, but our conclusion reached herein is not only for the benefit of respondent, but for society in general in preserving the impartiality of the courts and fostering the respect and confidence of the people for their decisions. Therefore, the prayer is granted. Justices Clark and Riley, having been advised of our views herein expressed, have complied therewith, and consequently there is no occasion for the writ to issue.

HUETT, THOMPSON, BROWN, and SWANK, JJ., concur.

HENRY. V. C. J., and LEWIS, J., CLARK and RILEY, JJ., dissent.