In Re Woodside-Florence Irr. Dist.

This is an appeal from an order made by the Honorable Albert Besancon, a judge of the district court of the fourth judicial district of the state of Montana in and for the county of Ravalli, establishing the Woodside-Florence Irrigation District wherein are included appellants' lands.

The irrigation district includes approximately 15,000 acres of land in the Bitterroot valley lying to the west of the Bitterroot river. The estimated cost of the project is $1,444,000.00.

The proceedings were commenced by filing in said district court a petition signed by numerous petitioners alleged to represent more than 60% in number of the holders of title or evidence of title to the particularly described lands proposed to be included in the irrigation district.

June 14, 1946, Judge Besancon made an order setting the petition for hearing for July 31, 1946, and directing the clerk to cause notice thereof to be given as provided in section 7169, Revised Codes of Montana 1935.

June 15, 1946, the clerk filed in the proceeding his certificate, with the newspaper copy of petition attached, showing that he had given notice as ordered by the court.

Disqualification Effected. July 25, 1946, James E. Wimett, one of the signers of the petition, swore to, subscribed and filed in said proceedings with the clerk of the court an affidavit disqualifying Judge Besancon wherein the affiant deposed: "That he is one of the petitioners in the above entitled matter and makes and files this affidavit because he has reason to believe, and does believe he cannot have a fair and impartial hearing before the Honorable Albert Besancon, Judge of the above styled District Court, by reason of the bias and prejudice of the said judge."

Disqualification Disregarded. The bill of exceptions herein recites that, "the matter came on regularly to be heard * * * at 10 o'clock, A.M. on Tuesday, August 6, 1946, before the Hon. Albert Besancon, Judge Presiding, sitting without a jury, upon the petition of the proponents of the District, and the various objections filed thereto."

The petitioners were represented by Walter Pope, Esq., of Missoula, Montana, and associates. The objectors were represented by Robert O'Hara, Esq., of Hamilton, Montana, and associates.

Thirty-eight named land owners opposing the creation of the district represented by Attorney O'Hara and associates appeared in the proceeding and interposed a motion to dismiss the petition for the creation of the district.

On August 6, 1946, Judge Besancon, disregarding his disqualification and assuming to sit and act in the proceeding, took his place on the bench and called the cause for trial whereupon at the commencement thereof the following proceedings were had in open court:

"Mr. O'Hara: At this time we desire to make an objection and we now object to the Hon. Albert Besancon presiding in this proceeding, for the reason that he has been disqualified by an affidavit of prejudice filed by J.E. Wimett, one of the proponents of the formation of this district. We are making this objection on behalf of those parties, clients of ours, whose names are set forth in the motion to dismiss the proceedings heretofore filed in this case. I want to say that our position is this: That you have been legally disqualified, and we do not think that you are entitled to sit in the case. We do not feel that you are prejudiced, but we are standing on the record as it has been made by the proponents of the district. Our investigation of the matter has completely convinced us that the proper affidavit was filed, and that you have no jurisdiction to try the case.

"Mr. Pope: In that connection, in line with the statement heretofore made informally on behalf of the petitioners, the record may show that, on behalf of the petitioner by whom the affidavit was filed, we move that we be permitted to withdraw the affidavit. In that connection I am speaking on behalf of the petitioners generally, and on behalf of James Wimett, whom I also represent along with the other petitioners. We ask leave to withdraw the affidavit filed on July 25th.

"Mr. O'Hara: Does that include a request that the maker of the affidavit be prosecuted for perjury?

"The Court: I note from the record that the motion to dismiss was filed here on the 30th of July. The objections you make now are on behalf of the parties named in that motion. I recall that on the 31st this matter of the affidavit of prejudice was carefully considered by the Court and the attorneys. Mr. O'Hara was present all of that time.

"Mr. O'Hara: At no time in the proceeding have I consented to anything.

"The Court: I say you were present. At that meeting on the 31st, it was tentatively agreed that the petitioners would withdraw the affidavit of prejudice filed by Mr. Wimett. So at this time the affidavit filed by J.E. Wimett is withdrawn by the petitioners, and considered withdrawn by the Court, and is out of the way in this case. As to the objections to the withdrawal, those objections are overruled, and the case may now proceed.

"Mr. O'Hara: Let the record show that we except to the ruling of the Court.

"The Court: The matters before us now are the petition, the motion to dismiss the petition, and the various petitions to withdraw lands from the district. It seems the matter now for hearing would be this motion to dismiss the petition.

"Whereupon, the court heard argument by all counsel as to the law on the question of the motion to dismiss the petition, filed on behalf of the objectors herein; and at 12 o'clock Noon, Court recessed until 1:30 o'clock P.M., at which time the following further proceedings were had:

"The Court: The motion to dismiss this petition, by Albert Sestak and others, presented by W.T. Boone and O'Hara, Madeen MacDonald, is in all things denied.

"Mr. O'Hara: May we have an exception to the ruling of the Court?

"The Court: Certainly."

Thereafter evidence was adduced and Judge Besancon assumed to make an order establishing the irrigation district wherein, over appellants' objections, their lands were included.

Appellants assign six specifications of error. The first three specifications present the question: Did Judge Besancon have jurisdiction to sit or act as judge in the trial of this cause?

Jurisdiction. The word "jurisdiction" is derived from the[1, 2] Latin "juris dicto," "I speak by the law." The jurisdiction of a court is in a broad sense its power to hear and determine controversies and in a more restricted sense its power to adjudicate a particular case. It is not within the power of litigants to invest a court with any jurisdiction or power not conferred on it by law. Accordingly consent cannot cure jurisdictional defects resulting from the determination of matters by a person, judge or tribunal not qualified or empowered to preside or perform judicial acts. See 21 C.J.S., Courts, sec. 85, pages 127-131.

The Wimett affidavit, filed in time, is sufficient in substance and form to meet all the requirements of our Fair Trial Law, subd. 4 of sec. 8868, Rev. Codes.

The mere filing of the affidavit ipso facto worked the[3] disqualification of the district judge against whom it was directed. State ex rel. Lohman v. District Court, 49 Mont. 247,249, 141 P. 659; State ex rel. Durand v. District Court,30 Mont. 547, 77 P. 318; Washoe Copper Co. v. Hickey, 46 Mont. 363,365, 128 P. 584; State ex rel. Goodman v. District Court,46 Mont. 492, 494, 128 P. 913; State ex rel. Anaconda Copper Mining Co. v. Clancy, Judge, 30 Mont. 529, 542, 77 P. 312; State ex rel. Grogan v. District Court, 44 Mont. 72, 75,119 P. 174; State ex rel. Coleman v. District Court, 120 Mont. 372,186 P.2d 91; State ex rel. Ballard v. Jefferson Circuit Court, 225 Indiana 174, 73 N.E.2d 489.

"Upon the filing of the affidavit, the judge as to whom said disqualification is averred shall be without authority to act further in the action, motion, or proceeding." Subd. 4, sec. 8868.

When the affidavit is filed in the cause the judge so challenged "must not sit or act as such" in that particular action or proceeding. Sec. 8868.

Upon the filing of the affidavit the authority of the challenged [4] judge to act in the cause is expressly limited to the doing of the purely ministerial acts of arranging the calendar, regulating the order of business, calling in another judge or transferring the cause, if a transfer is proper. Subd. 4, sec. 8868; Rowan v. Gazette Printing Co., 69 Mont. 170, 220 P. 1104; State ex rel. Moser v. District Court, 116 Mont. 305, 314,151 P.2d 1002; State ex rel. Goodman v. District Court, supra; State ex rel. Working v. District Court, 50 Mont. 435, 439,147 P. 614; state ex rel. Sherman v. District Court, 51 Mont. 220,152 P. 32; State ex rel. First Trust Savings Bank of Billings v. District Court, 50 Mont. 259, 261, 146 P. 539; State ex rel. Nissler v. Donlan, 32 Mont. 256, 80 P. 244; State ex rel. Stefonick v. District Court, 117 Mont. 86, 157 P.2d 96; State ex rel. Ballard v. Jefferson Circuit Court, supra.

If there be more than one judge in the district, the one first[5] disqualified in a given case must call in another judge of the same district. Sec. 8868; Rowan v. Gazette Printing Co., supra.

If all the judges of a district are disqualified in a given case, a judge of another district must be called in to preside in the action. Sec. 8868; Rowan v. Gazette Printing Co., supra.

No more than two judges can be disqualified for imputed bias or prejudice by plaintiffs and no more than two by defendants. Sec. 8868.

The above limitation on disqualifications apply regardless of the number of plaintiffs or defendants in the action or proceeding. Sec. 8868.

It is the policy of our system that no judge should be allowed[6] to sit when he is laboring under bias or prejudice toward one or more of the parties litigant. State ex rel. Carleton v. District Court, 33 Mont. 138, 82 P. 789, 8 Ann. Cas. 752.

The imputation in the affidavit may be in the language of the[7] statute and proof of facts showing actual bias and prejudice is neither required nor permitted. State ex rel. Grogan v. District Court, 44 Mont. 72, 75, 119 P. 174; State ex rel. Nissler v. Donlan, supra; State ex rel. Coleman v. District Court, supra.

The disqualification provided for in subdivision 4 of section[8] 8868 stands upon the same level of importance as do those provided for in the preceding three subdivisions of the statute, except as to the time when the imputation may be made, and operates as effectively if invoked at the proper time. State ex rel. Carleton v. District Court, supra; State ex rel. Moser v. District Court, supra.

Thus does the Fair Trial Law (Subd. 4, sec. 8868) provide a[9] speedy, efficient and dignified means of enabling a litigant to have a change of judges on account of prejudice or believed prejudice of the judge without undue embarrassment to anyone and without having to assign his reasons or being compelled to offer proof in support of the averments of his disqualifying affidavits. State ex rel. Anaconda Copper Mining Co. v. Clancy, Judge, supra; State ex rel. Carleton v. District Court, supra; Davis et ux. v. Irwin et ux., 65 Idaho 77, 139 P.2d 474, 478.

The Fair Trial Law was enacted to divest jurisdiction — not to confer it and such law contains no provision permitting any recall, retraction or "withdrawal" of the disqualifying affidavit after its filing. The law commands that upon the disqualification another judge "must be called in to preside in such action, motion, or proceeding." Subd. 4, sec. 8868. In construing such statute the judges may not insert therein any "withdrawal" provision. Sec. 10519, Rev. Codes 1935.

The statute expressly states what a judge may do after the filing of a disqualifying affidavit and he is precluded from doing any other things. The rule Expressio unius est exclusioalterius applies.

This court has heretofore construed the statute strictly in[10] accordance to its express terms, and has refused to broaden it by implication to include conditions not clearly within the statute. State ex rel. Eden v. Schneider, 102 Mont. 286,292, 57 P.2d 783; State ex rel. Nissler v. Donlan, Judge, supra. Waiver. The waiver of the right to disqualify a judge is one thing. The waiver of the disqualification itself is an entirely different matter.

The right to disqualify the judge is waived by failure to[11] exercise the right. This waiver may be by action or non-action before the actual disqualification of the judge is accomplished. By non-action when no affidavit is filed or when not filed in time. By action where upon an agreement based upon consideration the right to file the affidavit is waived either expressly or impliedly, as in the Washoe Copper Co. case, supra. But after the right to disqualify has been exercised and disqualification effected and jurisdiction lost, then it is beyond the power of one or a part of the litigants, over the protests and objections of the others, to waive the disqualification or restore the jurisdiction lost. Here the appellants did not consent to waive the disqualification of Judge Besancon but expressly refused to do so. Whatever loose language appears in cases decided under statutes of other states, it is plain that under mandatory language of our statute, the judge "must not sit or act" in the proceeding after being disqualified. The disqualification once accomplished may not be waived by the mere act of "withdrawal" of the affidavit. The disqualification extends to the entire cause, not merely to the litigant filing the affidavit therein.

In 48 C.J.S., Judges, sec. 95, page 1100, it is said: "The[12] disqualification of a judge cannot be waived if it is grounded in public policy or is based on an absolute constitutional or statutory prohibition against a disqualified judge sitting in the case." Here we have an absolute statutory prohibition against a disqualified judge sitting in the case. He "must not sit or act." Sec. 8868. In the face of such absolute prohibition one or more of the various litigants may not, over the timely objections of other litigants, "withdraw" a proper and timely affidavit so as to restore jurisdiction in the disqualified judge "to sit or act as such" in the action or proceeding.

The law is as set forth in the well considered case of Watson v. Payne, 94 Vt. 299, 111 A. 462, 463, wherein it is said:

"But where it is expressly declared by constitutional or statutory provision that in certain specified cases a judge shall not sit, or shall not act, or shall take no part in the decision, the authorities are almost uniform to the effect that any judgment rendered by such judge in such case is coram non judice and void. Bates v. Thompson et al., 2 D. Chip., Vt., 96; Hill v. Wait, 5 Vt., 124; Richardson v. Welcome, 6 Cush., Mass., 331; Sigourney v. Sibley, 21 Pick., Mass., 101, 32 Am. Dec. 248; Gay v. Minot, 3 Cush., Mass., 352; Hall v. Thayer, 105 Mass. 219, 7 Am. Rep. 513; Oakley v. Aspinwall, 3 N.Y. 547; People v. Whitridge, 144 A.D. 493, 129 N.Y.S. 300; People v. Connor,142 N.Y. 130, 36 N.E. 807; McIntosh v. Bowers, 143 Wis. 74,126 N.W. 548; Case v. Hoffman, 100 Wis. 314, 72 N.W. 390, 74 N.W. 220; 75 N.W. 945, 44 L.R.A. 728; Horton v. Howard, 79 Mich. 642,44 N.W. 1112, 19 Am. St. Rep. 198; Seabrook v. First National Bank, Tex. Civ. App., 171 S.W. 247; Lee v British-American Mortg. Co., 51 Tex. Civ. App. 272, 115 S.W. 320; Gulf, C. S.F. Ry. Co. v. Looney, 42 Tex. Civ. App. 234, 95 S.W. 691; Fechheimer v. Washington, 77 Ind. 366; Freeman on Judgments, par. 146.

"Such judgment is therefore incapable of being made good by confirmation, waiver, or ratification on the part of those interested. See cases cited above, because, where no jurisdiction exists by law, it cannot be conferred by consent or waiver, especially against the prohibition of a law which was not designed merely for the protection of the parties to a suit, but for the general interest of justice.

"The same rule has been applied when the disqualified judge has acted simply as one of a bench composed of several judges, even though his vote was not necessary to a decision. Oakley v. Aspinwall, supra; Converse v. McArthur, 17 Barb., N.Y., 410; Reg. v. Justices, 6 Q.B. 753; Id., 18 Q.B. 416; People v. Bork,96 N.Y. 188. The reason stated in Oakley v. Aspinwall is that —

"``Whatever a party may consent to do, the state cannot afford to yield up its judiciary to such attack and criticism as will inevitably follow upon their decisions made in disregard of the prohibitions of the law.'

"This rule seems to us to be founded upon reason and justice, and in fact to be the only safe rule to follow."

Litigants and their counsel and agents should ponder well their contemplated act before filing the affidavit which instantly energizes the drastic and far reaching provisions of the Fair Trial Law and ipso facto permanently divests the judge as to whom the disqualification is averred of all "authority to act further in the action, motion, or proceedings." Sec. 8868. Those invoking the aid of the statute should exercise their right and privilege cautiously and for the purpose intended by the act. They will not be permitted to play fast and loose with either the law, the judge or the other litigants in the cause, nor may they employ the provisions of the Fair Trial Law as an instrument to dicker or bargain with or to threaten, soften, condition, intimidate, control or influence the future conduct, rulings or decision of the trial judge in the action or proceeding.

When once the disqualifying affidavit is filed it passes beyond the control of the affiant and becomes a part of the record in the proceeding affecting not only the authority and power of the judge against whom it is directed but also affecting the rights of all the litigants for it instantly and permanently removes from the proceeding one of the limited number of judges who may be disqualified by either side under subdivision 4 of section 8868. There are numerous petitioners in this particular action, yet no more than two judges can be disqualified for imputed bias at their instance, the statute providing "this limitation shall apply however many parties or persons in interest may be plaintiffs or defendants in such action or proceeding." Sec. 8868. It follows therefore that when the petitioner Wimett made and filed the affidavit against Judge Besancon he exercised a right which the law provides for the use and benefit of any party to the proceeding and the disqualification so effected inured not only to the advantage of Wimett but it inured to the benefit of every party to the proceeding who believed he could not have a fair and impartial trial and hearing before said judge. The exercise by the affiant Wimett of the right to disqualify the designated judge made it wholly unnecessary for any other party, believing as he did, to file such an affidavit whereas, had Wimett not filed the affidavit, then some other party could have exercised the right, but in either event the disqualification would have been charged against each and all the parties on one side of the controversy and would leave them but one other disqualification. Thus the right which he exercised was not intended for the sole benefit of the petitioner Wimett but it was intended for and it inured to the benefit of each and all the parties to the proceeding similarly situated. After the affidavit was filed each and all the numerous parties litigant had a right to rely upon the disqualification and to assume that the statute would be obeyed and that another judge would be called in to preside. After its filing neither Wimett nor any other party had control of the affidavit nor was counsel for petitioners, over the protests and objections of appellants, authorized to speak for appellants or to waive for them any benefits that came to them through the filing of the affidavit and the removal of the particular judge from the proceeding.

Upon the filing of the disqualifying affidavit Judge Besancon was commanded, by express law, to call upon the Honorable C.E. Comer, the other district judge of the fourth judicial district, to preside in the proceeding. The disqualified judge not only failed to make an order calling in Judge Comer but he disregarded the disqualification and assumed to exercise jurisdiction which he did not have by assuming to continue to sit and act as a judge and to preside as such at the trial of the cause. The law does not tolerate such disregard of its prohibitions, and such disobedience to its plain mandate.

In the trial the Honorable Albert Besancon was not a judge [13] but merely a usurper and the proceedings before him were coram non judice and void. Watson v. Payne, supra. "Every act of a court beyond its jurisdiction is void." Ex parte Reed,100 U.S. 13, 23, 25 L. Ed. 538.

Accordingly, the order appealed from is set aside, vacated and held for naught as null and void. The disqualified judge is directed to call in Judge Comer to preside in the proceedings and it is further directed that the disqualified judge must not act further in the action, motion or proceeding than is expressly provided for in and allowed by the provisions of subdivision 4 of section 8868, Revised Codes of Montana, 1935.

The cause is remanded to the district court for further proceedings not inconsistent with this opinion.

Associate Justices Choate and Gibson concur.