no order affecting or controlling the proceedings in the cause. He is not, by his disqualification, prevented from executing a specific mandate of the supreme court to the court of which he is judge, and about which he has no discretion or power to decide. Nor does it affect his power to perform purely ministerial acts.3 The fact that a relative of the judge is attorney for one of the parties to the action does not, ordinarily, disqualify him. But it is otherwise where such relative is to have, as compensation for his services, a part of the property in litigation in case he is successful. The fact that the decision of a disqualified judge is correct does not affect the question of its invalidity.

If a judge is vested by the constitution with exclusive jurisdiction, and his failure to act will deprive the parties of all remedy, he is held to be authorized to take such steps as may be absolutely necessary to avoid a failure of remedy. Whether such would be the case where exclusive jurisdiction is conferred by statute, and not by the constitution, may well be doubted. In some of the cases a distinction is made between a substantial and direct pecuniary interest in the judge and those in which he "has not so direct an interest as that the result must necessarily affect him to his personal or pecuniary loss or gain, or where his personal or pecuniary interest is minute."8

The rule of disqualification does not apply to officers not judicial, although their acts may call for the exercise

1 Salm e. State, 89 Ala. 56; 8 Sou. Rep. 66.

3

2 State v. Collins, 5 Wis. 339.

State v. Gurney, 17 Neb. 523; 23 N. W. Rep. 524.

Patric v. Crowe, 25 Pac. Rep. 985.

Howell v. Budd, 91 Cal. 342; 27 Pac. Rep. 747.

"Estate of White, 37 Cal. 190.

Matter of Ryers, 72 N. Y. 1; Commonwealth v. Ryan, 5 Mass. 89; Pearce v. Atwood, 13 Mass. 324, 340.

It is, however, objected that, though this may be so, where exclusive jurisdiction is conferred by the constitution, it is not so where the power is given by statute, general or specific. True, it is said in books of high repute, that ‘a legislative act, which should undertake to make a judge the arbiter in his own cause, would be void' (Cooley on Const. Lim., 175); and so has Lord Coke said (Co. Lit., sec. 212); and

of judgment and discretion.' If a judge persists in acting where he is disqualified he may be prevented from acting

so is the utterance in Day v. Savadge (Hobart, 212–218), (85-876). How this may be in an action at law or suit in equity, in which the judge was a party named or a party in fact, and where his interest was so close and immediate that there would be a direct pecuniary gain or loss, or direct personal triumph or defeat, to him by the result, we are not now called upon to say. For one I should loathe to hold, that by force of a legislative act, one could bring an action in which his interests were involved, in a court of which he was the sole judge, and could sit alone to hear and decide it. But we know that in cases in which the interest is not direct, but remote; is not certain and palpable, but contingent and problematical; is not great and important, but minute; statutes, not specific, but general, which have had the effect to confer exclusive jurisdiction, where there was an interest in the result, have been upheld as valid. In Strange, 1173 (supra), we are referred to the act of 16 Geo. II., c. 18, which was passed to remedy the difficulty arising from the decision there reported, which act gave power to all and every justice or justices of the peace to act in matters concerning parochial rates, notwithstanding they or he were chargeable therewith. (7 Evans Coll. Stats., p. 476.) I do not find any adjudication upon this act upholding or denying the validity of it. From the fact that it was passed as early as 1744, and the case above cited from Strange, with the reference therein to the act, appears in the third edition of those reports, published in 1792, without note of any judicial disapprobation; and from the further fact that another act of Parliament of like effect was passed (the 30 and 31 of Vict. (c. 115, sec. 2); see Fisher's Digest, vol. iii., p. 5107; I infer that the character, object, and effect of the enactment did not meet with judicial reprobation. But we are not left to inferences. There have been adjudications upon statutes conferring exclusive jurisdiction in general terms, wherein it has been held that the force of the enactment overrode the rule which disqualified by reason of interest. In Massachusetts it has been held that the interest which a justice of the peace has in a penalty payable to his town, though minute, takes away his jurisdiction of the offense. (Pearce . Atwood, supra.) Yet the Supreme Court of that state has repeatedly held, that where there is but one tribunal authorized by statute to take cognizance of the offense, such interest does not disqualify. (Comm. v. Ryan, supra; Hill v. Wells, 6 Pick. 104; see remarks of Shaw, Ch. J., in Comm. v. Emery, 11 Cush., 406; Comm. v. Burding, 12 id. 506; Hanscomb v. Russell, 11 Gray, 373.) In this state we have statutes relieving jurors, witnesses, and certain officers from the disqualification of being interested in the penalties going into the county treasury or for the benefit of a town. (2 R. S., p. 420, sec. 58; p. 551, sec. 2; 1 id. 357, sec. 4; see Wood v. Rice, 6 Hill, 59.) These enactments were not new in principle, but copied from prior stat

1 People v. Wheeler, 21 N. Y. 82, 86.

by writ of prohibition.' And where he refuses to act on the ground that he is disqualified, when he is not so in fact, he may be compelled to act by mandamus. So he may be compelled by mandamus to withdraw from the bench and call a special judge where he is disqualified or the necessary affidavit or recusation has been filed.3

In some of the states provision is made disqualifying judges who have acted in a lower court to sit in the same cause on appeal. But in the absence of such a statute he utes, and which had been passed probably to meet cases in which it had been adjudged that there was a disqualifying interest. (See Wood v. Stoddard, 2 J. R. 195.) The interest of an assessor of taxes in a town is very like that which is attributed to Judge Metcalfe in the case in hand, save that the official action which may be influenced by it is more direct. An assessor has a voice himself in fixing the valuation of his own land, and that of all other owners in the town. It is a judicial act. (Swift v. City of Poughkeepsie, 37 N. Y. 511.) Each assessor must be present at the meeting of the board, if he does his duty, and the assessment is the joint act of all, or at least a majority of the board. (People ex rel. v. Sups. of Chenango Co., 11 N. Y. 563.) So members of boards of supervisors and town auditors pass upon their own accounts. No fault has ever been found with this, for the necessity of the case demanded that it be so. So, merely formal acts, necessary to enable the case to have progress, an interested judge may do. Thus, where a circuit judge has been counsel in a cause (which relation is akin to that of having a personal interest in it, and is often made by statute a disqualification), he may execute an order of a higher court directed to the circuit judge (State v. Collins, 5 Wis. 339); and judges of the United States Circuit Court, where both are interested or have been of counsel, may make an order certifying the case to another circuit. (Richardson v. City of Boston, 1 Curtis, 250.)

"I think, then, that upon the facts of this case, as already stated, we may formulate a rule thus: That where a judicial officer has not so direct an interest in the cause or matter as that the result must necessarily affect him to his personal or pecuniary loss or gain, or where his personal or pecuniary interest is minute, and he has so exclusive jurisdiction of the cause or matter by constitution or by statute, as that his refusal to act will prevent any proceeding in it, then he may act so far as that there may not be a failure of remedy, or, as it is sometimes expressed, a failure of justice." Matter of Ryers, 72 N. Y. 1, 13.

'Heilbron v. Campbell, 23 Pac. Rep. 122.

2

Ex parte State Bar Association, 8 Sou. Rep. 768.

3 State v. Judge, 39 La. Ann. 994; 3 Sou. Rep. 91. Phillips v. Germania Mills, 13 N. E. Rep. 923.

is not disqualified.' A judge may be disqualified to hold the office of judge, and therefore incompetent to perform any of its duties, by reason of want of proper age, citizenship, or the like. But such grounds of disqualification can not be taken advantage of in any pending action as between the parties. The question must be tested by a direct proceeding against the judge.

63. BIAS AND PREJUDICE OF JUDGES AS AFFECTING JURISDICTION.-Bias or prejudice of the judge is, in many of the states, made a ground for changing the venue of a cause.3 This is upon the theory that every litigant is entitled to a fair and impartial trial, and that such a hearing can not be had before one whose mind is not free from such feeling as would naturally incline the mind of the court toward one of the parties or against the other. But usually it is held that such a state of mind on the part of a judge does not absolutely disqualify him or render any judgment rendered by him void. However, if a change of venue is allowed on this ground, the filing of the necessary affidavit or recusation divests the court of all jurisdiction, under the decisions of most of the states, and any acts of his thereafter are wholly void."

In some of the states the bias or prejudice of the judge is not made a cause of disqualification, or a ground for change of venue, and in such states such a frame of mind, however embarrassing to the parties, or the judge, does not affect his right or duty to sit in the case.

1 Pierce v. Delamater, 1 N. Y. 17. 2 People v. Wilson, 15 Ill. 388.

3 Ante, secs. 46, 62.

Ante, sec. 62; Sjorberg . Nordin, 26 Minn. 501; 5 N. W. Rep. 677; Taylor . Williams, 26 Tex. 583; Heflin r. State, 88 Ga. 151; 14 S. E. Rep. 112; Ex parte Harris, 26 Fla. 77; 7 Sou. Rep. 1; 12 Am. & Eng. Enc. of Law, 52; Foreman r. Hunter, 59 Ia. 550; 13 N. W. Rep. 659.

5 Ante, secs. 24 p. 151, 46 p. 336, 62; Smelzer v. Lockhart, 97 Ind. 315; Krutz v. Howard, 70 Ind. 174, 179; Shoemaker e. Smith, 74 Ind. 71, 76; Freeman on Judg., sec. 146.

12 Am. & Eng. Enc. of Law, 52; McCauley v. Weller, 12 Cal. 500; People v. Williams, 24 Cal. 31; Sjorberg v. Nordin, 26 Minn. 501; 5 N. W. Rep. 677; Taylor v. Williams, 26 Tex. 583; People v. Mahoney, 18 Cal. 180.

The bias or feeling of favor or of hostility of the judge may arise from a cause which disqualifies, absolutely, such as interest in the result, having been of counsel in the cause, consanguinity or affinity or the like. But in some of the cases the disqualification is extended to friendly or hostile relations caused by circumstances not affecting the personal interests of the judge or those connected with him.2

1 Ante, sec. 62.

2 "The friendly or hostile relations existing between a judge and one of the parties may be good ground of recusation: Voet, ubi sup.

"Of the first class, there are various circumstances referred to as ex"amples indicating a state of feeling inconsistent with impartiality; as where the judge has received himself, or his near relative, important benefits or donations from one of the parties: Pothier, ubi sup.; where the relation of master and servant exists between the judge and a party: Pothier, ubi sup.; Smith v. Boston, etc., R. R., 36 N. H. 492; or where the relation of protection and subjection exists between the judge and a party, as in the case of a guardian and ward: Pothier, ubi sup. Qui jurisdictioni preest neque sibi jus dicere debet, neque uxori vel liberis suis, neque libertis vel caeteris quos secum habet; Dig. 2, 1, 10; Ersk. Inst., tit. 2, sec. 26; 1 Rolle Abr. 492; 6 Vin. Abr. 1, tit. Connusance, O. It is a good cause to remove a plea, that the bailiff who is the judge is of the robes of the plaintiff: 12 H. 4, 13; S. P. Brooke Abr., Cause a remover, pl. 13.

"But a creditor, lessee, or debtor may be judge in the case of his debtor, landlord, or creditor, except in cases where the amount of the party's property involved in the suit is so great that his ability to meet his engagements with the judge may depend upon the success of his suit: Pothier, ubi sup.

"Enmity, indicated by threats verbal or written, pending, or shortly preceding the suit, Voet and Pothier, ubi sup., or otherwise, Turner v. Commonwealth, 2 Met. (Ky.) 619, and a lawsuit pending between a judge and a party, are good causes for recusation. Generally, such a lawsuit between a party and the nearest relative of the judge is not sufficient cause of recusation, though this may depend upon the state of feeling between the judge and the party, to which the lawsuit has given rise. The bitterness of feeling resulting from a lawsuit is supposed to subside when the lawsuit has terminated. A party can not disqualify a judge to sit in his case by bringing an action against him after the principal suit is commenced.

"Under this head falls the class of cases where a judge has a bias or prejudice in favor of or against one of the parties. Such bias, caused by hearing an ex parte statement of the facts of a case, would be a disqualification to try it. A judge, anxiously on his guard to hear nothing of the cases which may come before him, except what is said in court