Summary
defining "bias or prejudice" as implying " ‘a hostile feeling or spirit of ill-will or undue friendship or favoritism toward one of the litigants or his attorney, with the formation of a fixed anticipatory judgment on the part of the judge, as contradistinguished from an open state of mind which will be governed by the law and the facts’ "
Summary of this case from State v. Calel (In re Von Allman)Opinion
No. 34159
Decided February 1, 1956.
Courts — Disqualification of judge of Common Pleas Court — Chief Justice of Supreme Court to pass upon — Section 3, Article IV, Constitution — Statutory construction — Statutes in pari materia, when — Affidavit of bias or prejudice not conclusive — Section 2701.03, Revised Code — Necessary expenses in determining disqualification — Section 141.08, Revised Code — "Bias or prejudice" defined — Judicial discretion abused, when — Mandamus to require Chief Justice to unseat judge — Writ denied where abuse of judicial discretion not shown.
1. Section 3, Article IV of the Constitution of Ohio, providing that, until the General Assembly shall make adequate provision therefor, the Chief Justice of the Supreme Court shall pass upon the disqualification of any judge of the Court of Common Pleas, contemplates that the Chief Justice shall hear and determine an affidavit of bias or prejudice filed against such a judge.
2. Statutes relating to the same matter or subject, although passed at different times and making no reference to each other, are in pari materia and should be read together to ascertain and effectuate if possible the legislative intent.
3. Section 2701.03, Revised Code, providing that, where a judge of the Court of Common Pleas is biased or prejudiced for or against a party in a cause pending in his court, the clerk of the court, on the filing of an affidavit to that effect, shall notify the Chief Justice of the Supreme Court who shall designate and assign some other judge, and Section 141.08, Revised Code, providing that the Chief Justice shall be paid his necessary expenses in determining the disqualification of any judge of the Court of Common Pleas, are to be read together in the light of Section 3, Article IV of the Constitution of Ohio, with the result that the duty rests on the Chief Justice to hear such affidavit of bias or prejudice and determine whether such challenged judge is in fact biased or prejudiced and should be removed for that reason. ( State, ex rel. Chute, v. Marshall, Chief Justice, 105 Ohio St. 320, approved and followed.)
4. The term, "biased or prejudiced," when used in reference to a judge before whom a cause is pending implies a hostile feeling or spirit of ill will or undue friendship or favoritism toward one of the litigants or his attorney, with the formation of a fixed anticipatory judgment on the part of the judge, as contradistinguished from an open state of mind which will be governed by the law and the facts.
5. Judicial discretion in connection with the hearing and determination of an affidavit of bias or prejudice filed against a judge is abused, where it is exercised to an end or purpose wholly unjustified by and clearly against reason and evidence.
6. A writ of mandamus will not issue against the Chief Justice of the Supreme Court to require him to unseat a judge against whom an affidavit of bias or prejudice has been filed, where, under the evidence presented on the hearing of such affidavit, the action taken by the Chief Justice in the matter does not disclose an abuse of judicial discretion.
IN MANDAMUS.
This is an action in mandamus originating in this court, wherein the relator, Arno Pratt, seeks a writ to require the respondent, the Chief Justice of this court, to remove Warren S. Earhart, Judge of the Court of Common Pleas of Lawrence County, from hearing and determining a divorce action pending in that court and in which relator and his wife are the opposing parties.
The present action was instituted after the respondent heard and overruled an affidavit of prejudice filed against Judge Earhart by the relator, in connection with the above-mentioned divorce case.
In the present action, following the overruling of a demurrer to the amended petition, an answer amounting to a general denial was interposed, and the cause is now before the court for determination on the pleadings and the transcript of the evidence presented before the respondent at the hearing on the affidavit of prejudice.
Mr. Sol Goodman, Mr. J. Earl Pratt and Mr. Stanley Goodman, for relator.
Mr. C. William O'Neill, attorney general, and Mr. Joseph S. Gill, for respondent.
Relator makes two principal contentions:
1. Under the provisions of Section 2701.03, Revised Code, where an affidavit of prejudice is filed against a judge of the Court of Common Pleas by a party or his counsel in a matter or cause pending before the court, such judge is automatically removed and it becomes the immediate duty of the Chief Justice of the Supreme Court to designate and assign another judge to try such matter or cause.
2. If the above contention is rejected, the respondent Chief Justice, on the evidence introduced at the hearing on the affidavit of prejudice, is chargeable with an abuse of discretion in declining to unseat Judge Earhart.
As to the first contention, Section 3, Article IV of the Constitution of Ohio, as amended September 3, 1912, provides in part:
"Any judge of the Court of Common Pleas may temporarily preside and hold court in any county; and until the General Assembly shall make adequate provision therefor, the Chief Justice of the Supreme Court of the state shall pass upon the disqualification or disability of any judge of the Court of Common Pleas, and he may assign any judge to any county to hold court therein."
Section 141.08, Revised Code (originally enacted in 1917 as Section 2253-1, General Code, 107 Ohio Laws, 628), recites:
"The Chief Justice of the Supreme Court shall receive his actual and necessary expenses incurred while performing his duties under the law and the Constitution in determining the disqualification or disability of any judge of the Court of Common Pleas or of the Court of Appeals * * *."
And Section 2701.03, Revised Code (enacted in 1913 [Section 1687, General Code] in practically its present wording, 103 Ohio Laws, 417), reads:
"When a judge of the Court of Common Pleas is interested in a cause or matter pending before the court, is related to, or has a bias or prejudice either for or against, a party to such matter or cause or to his counsel, or is otherwise disqualified to sit in such cause or matter, on the filing of an affidavit by any party to such cause or matter, or by the counsel of any party, setting forth the fact of such interest, bias, prejudice, or disqualification, the Clerk of the Court of Common Pleas shall enter the fact of such filing on the trial docket in such cause and forthwith notify the Chief Justice of the Supreme Court. The Chief Justice shall designate and assign some other judge to take the place of the judge against whom such affidavit is filed. The judge so assigned shall try such matter or cause. Such affidavit shall be filed not less than three days prior to the time set for the hearing in such matter or cause."
In 1922, this court had before it in the case of State, ex rel. Chute, v. Marshall, Chief Justice, 105 Ohio St. 320, 137 N.E. 870, the exact problem which is now before the court and held in a per curiam opinion that Section 2253-1, General Code (Section 141.08, Revised Code), and Section 1687, General Code (Section 2701.03, Revised Code), are in pari materia and should be construed together, and that when this is done, particularly with reference to Section 3, Article IV of the Constitution of Ohio, it is manifest that the question of bias or prejudice on the part of a judge of the Court of Common Pleas is to be heard and passed on by the Chief Justice of the Supreme Court.
In our view, a good deal may be said in support of the Chute case. Section 3, Article IV of the Constitution, says expressly that, "until the General Assembly shall make adequate provision therefor, the Chief Justice of the Supreme Court of the state shall pass upon the disqualification or disability of any judge of the Court of Common Pleas."
In Ohio and elsewhere the generally accepted rule is that statutes relating to the same matter or subject, although passed at different times and making no reference to each other, are in pari materia and should be read together to ascertain and effectuate if possible the legislative intent. 37 Ohio Jurisprudence, 599, Section 332; Thoman v. Farmers Bankers Life Ins. Co., 155 Kan. 806, 130 P.2d 551; State, ex rel. Carlton, v. Weed, 208 Minn. 342, 294 N.W. 370.
What is now Section 2701.03, Revised Code, relating to the filing of an affidavit of bias or prejudice against a judge of the Court of Common Pleas and the procedure thereon, was enacted in 1913 in substantially its present language. That by such enactment the General Assembly was not attempting to relieve the Chief Justice of the Supreme Court of his constitutional duty to determine the disqualification of a judge of the Court of Common Pleas against whom an affidavit of bias or prejudice has been filed is disclosed by reference to what is now Section 141.08, Revised Code, representing legislation originally passed in 1917, wherein provision is made for paying the Chief Justice the expenses he may incur "while performing his duties under the law and the Constitution in determining the disqualification or disability of any judge of the Court of Common Pleas."
Besides, Section 2701.03, Revised Code, read as a whole, appears to create a factual situation as to whether the challenged judge actually has a bias or prejudice for or against a party or his counsel, which would thus require a hearing and determination by a qualified judicial officer, namely the Chief Justice of the Supreme Court, as specified in Section 3, Article IV of the Constitution. That Code section begins with the words, " when a judge * * * has a bias or prejudice either for or against," and the affidavit required by such section must set "forth the fact of such * * * bias, prejudice, or disqualification."
For over 40 years the Chief Justice of the Supreme Court has been exercising the prerogative of hearing and deciding affidavits of bias or prejudice filed against judges of the Court of Common Pleas, and his right and obligation to do so have been recognized generally by the bench and bar of this state.
An interesting case bearing on the question now under discussion is that of Duncan, Judge, v. State, ex rel. Brown, 82 Ohio St. 351, 92 N.E. 481, decided in 1910, wherein Sections 469 and 550, Revised Statutes, the latter section being a fore-runner of present Section 2701.03, Revised Code, were interpreted. There, as here, it was contended that the mere filing of an affidavit of bias or prejudice against a trial judge automatically removes him from the bench. However, this court said, "no," holding that the two statutes should be read together, the result of which is to impose on the "supervising" judge the duty to hear the affidavit and to determine whether the actual fact of interest, relationship, bias or prejudice or other disqualification, with respect to the challenged judge, is present and also whether there is satisfactory information to that effect. "That is, the information which authorizes the supervising judge to designate another judge, must be of such a nature as to satisfy him that the disqualification really exists and is not a subterfuge. The affidavit is, at best, no more than prima facie evidence of the fact."
At the close of the opinion in the Duncan case, the following significant language appears:
"We adopt this construction of the statute the more readily, because, if the affidavit be taken as final and conclusive, it would raise a more serious question as to whether the Legislature has overstepped constitutional limits, and it can not be lightly assumed that it intended to do so." Compare Diehl v. Crump, Judge, 72 Okla. 108, 179 P. 4, 5 A.L.R., 1272, and U'Ren v. Bagley, Judge, 18 Ore., 77, 245 P. 1074, 46 A.L.R., 1173.
We can not see that the cases of Wolf v. Marshall, 120 Ohio St. 216, 165 N.E. 848; State, ex rel. Turner, v. Marshall, Chief Justice, 123 Ohio St. 586, 176 N.E. 454; and State, ex rel. Grogan, v. Wanamaker, Judge, 139 Ohio St. 293, 39 N.E.2d 853, have any particular bearing on the feature of this case presently under examination.
The Wolf case holds merely that the provision of Section 1687, General Code, requiring the filing of an affidavit of prejudice three days before the time of trial does not apply where it is impossible to identify the judge before whom the case is to be heard until less than three days prior to trial, and that, where such an affidavit is filed at the earliest moment possible before trial, the judge must recognize it, and it is prejudicial error for him to proceed with the trial in face of the pending affidavit.
In the Turner case it was held that the facts presented to the Chief Justice to sustain the affidavits of prejudice were patently such as to disqualify the challenged judge from hearing the causes, and that the Chief Justice should have so determined and removed the judge.
The Grogan case had to do with Section 12000, General Code, since repealed, a statute confined strictly to venue. In the opinion in that case, the Chute case is cited, and it is pointed out that such case dealt with an entirely different subject.
Judge Turner, writing the opinion in the Grogan case, said:
"Sections 1687 and 2253-1, General Code, are quickly disposed of here. The former facilitates disqualification proceedings, while the latter allows the Chief Justice of this court to collect his necessary expenses incurred in discharging his duties in determining the disqualification or disability of any judge. Those sections have no application to proceedings under Section 12000, General Code, which is purely a venue statute. Cases like Duncan, Judge, v. State, ex rel. Brown, 82 Ohio St. 351, 92 N.E. 481, which was based upon Sections 550 and 469, Revised Statutes, and State, ex rel. Chute, v. Marshall, Chief Justice, 105 Ohio St. 320, 137 N.E. 870, which was based upon Section 1687 and 2253-1, General Code, were concerned with the disqualification of a judge and not with the question of venue. Sections 1687 and 2253-1, together with the provisions of Section 3, Article IV, became the successors of Sections 550 and 469 and related sections of the Revised Statutes, which were concerned with the disqualification of a judge and not with the question of venue."
The Chute case has stood as the law of Ohio for more than 33 years and is decisive of the precise question with which we are now confronted. During that span of years, the General Assembly has made no attempt to enact further legislation which might affect the situation. Therefore, a majority of the members of this court adhere to the Chute case, and relator's first contention is decided against him.
Moreover, it is doubtful in our minds whether the orderly and efficient administration of justice would be served by the automatic disqualification and removal of a judge upon the mere filing of an affidavit of prejudice, which affidavit might in fact be groundless.
With regard to relator's second contention, the term, "biased or prejudiced," when used in reference to a judge before whom a cause is pending, implies a hostile feeling or spirit of ill will or undue friendship or favoritism toward one of the litigants or his attorney, with the formation of a fixed anticipatory judgment on the part of the judge, as contra-distinguished from an open state of mind which will be governed by the law and the facts.
At the hearing before the respondent on the affidavit of prejudice, J. Earl Pratt, attorney for relator in the divorce action, A.W. Hanshaw and relator testified in support of the affidavit, and Judge Earhart testified in opposition to it.
The gist of the testimony introduced by the relator is that before Judge Earhart assumed his judicial office he was a member of the law firm which represents Mrs. Pratt in the divorce action against relator; that such firm also represents banking institutions which might be drawn into the litigation involving relator and his wife; that one of the members of this law firm has a financial interest in such banking institutions; that Judge Earhart had suggested the appropriateness of releasing an attachment on certificates of stock owned by relator's wife in a telephone company of which relator is president; that J. Earl Pratt and his brother, Pearl A. Pratt, were supporting the candidate opposing Judge Earhart for election to the Court of Common Pleas of Lawrence County in 1954; that Judge Earhart declined to approve the appointment of A.W. Hanshaw as a deputy sheriff of Lawrence County because he "was too close to Earl Pratt" who had been instrumental in "getting his [Judge Earhart's] opponent in the race for judge"; that J. Earl Pratt requested Judge Earhart not to hear the Pratt divorce case because he and relator considered the judge prejudiced against them, to which request the judge did not accede; and that, after the first hearing on the affidavit of prejudice and before the second and final hearing, Judge Earhart advised individuals in the city of Ironton, including newspaper men, that J. Earl Pratt had testified in the first hearing that he, Pratt, controlled factions of both the Republican and Democratic Parties in Lawrence County, which resulted in a newspaper story on the subject in the Ironton Tribune.
Both J. Earl Pratt and relator stated that in their opinion the relator would not be accorded a fair trial in the divorce action if it was heard by Judge Earhart.
Judge Earhart, in his own behalf, testified to the effect that he had no partiality toward the law firm of which he was formerly a member; that there were reasons other than political ones for his refusal to approve the appointment of Hanshaw as a deputy sheriff; and that he so informed Hanshaw. He also testified that he entertained no antagonism or ill will toward either relator or J. Earl Pratt; that he had an open mind with respect to the divorce case; and that he knew of no valid reason why he could not hear and determine the matter fairly and impartially.
The judges of this court are not faced with the problem of how they, occupying the place of respondent in the hearing of the affidavit of prejudice, might have decided the issue, but with the problem of whether the respondent plainly committed an abuse of discretion in refusing to unbench Judge Earhart.
Since judicial discretion in a situation of this kind is abused, where it is exercised to an end or purpose wholly unjustified by and clearly against reason and evidence, the majority of the members of this court are of the opinion that the charge made against respondent in this respect has not been sustained.
However, in concluding, we think it not inappropriate to quote the following language from the opinion in the case of Haslam v. Morrison, Judge, 113 Utah 14, 20, 190 P.2d 520, 523:
"The purity and integrity of the judicial process ought to be protected against any taint of suspicion to the end that the public and litigants may have the highest confidence in the integrity and fairness of the courts. This is not to say that the mere filing of an affidavit of bias and prejudice, ipso facto casts such suspicion on the judge, and upon his integrity and fairness, that he ought to disqualify himself. However, it is ordinarily better for a judge to disqualify himself even though he may be entirely free of bias and prejudice if either litigant files an affidavit of bias and prejudice.
"`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 or integrity of the judge.'"
The writ of mandamus is denied.
Writ denied.
MATTHIAS, HART and BELL, JJ., concur.
STEWART and TAFT, JJ., dissent.
WEYGANDT, C.J., not participating.
In my opinion, when an affidavit of prejudice with respect to a common pleas judge such as the affidavit involved in the instant case is filed with the clerk of a Common Pleas Court as it was in the instant case, the clerk has a mandatory duty to "enter the fact of such filing on the trial docket in such cause and forthwith notify the Chief Justice of the Supreme Court," who "shall designate and assign some other judge to take the place of the judge against whom such affidavit is filed." Of course, the Chief Justice is authorized to determine whether the affidavit sets forth the required "fact." However, if it does, he has a mandatory duty, without any further hearing, to designate and assign some judge to take the place of the judge to whom the affidavit relates. I base these conclusions upon the clear and unambiguous words of Section 2701.03, Revised Code (former Section 1687, General Code), which read so far as pertinent:
"* * * on the filing of an affidavit * * * setting forth the fact of such interest, bias, prejudice, or disqualification, the clerk * * * shall enter the fact of such filing on the trial docket * * * and forthwith notify the Chief Justice * * *. The Chief Justice shall designate and assign some other judge to take the place of the judge against whom such affidavit is filed."
Any doubt as to the meaning of the language of this statutory section should be dispelled by a comparison of its words with those of the corresponding Section 2501.13, Revised Code (formerly Section 1527, General Code), relating to disqualification of a Court of Appeals judge, which latter section was enacted at the same time and even as a part of the same act. 103 Ohio Laws, 405, 413, 417. The latter statutory section, relative to disqualification of a Court of Appeals judge, specifically provides that, after the filing of the affidavit and notification of the Chief Justice, "the Chief Justice of the Supreme Court * * * shall hear and determine the fact of such disqualification and if found to be disqualified shall forthwith make an order transferring" such Court of Appeals judge. The only subsequent amendment of either of these statutes was an amendment of a part of Section 1527, General Code (now Section 2501.13, Revised Code), not related in any way to the problem involved in the instant case. See 123 Ohio Laws, 742.
Again, when provision was subsequently made (113 Ohio Laws, 123) with respect to disqualification of "a magistrate or a judge of a court inferior to the Court of Common Pleas," the General Assembly specifically provided that, upon the filing of an affidavit setting forth the fact of interest, relationship, bias, prejudice or disqualification, and the notification of a judge of the Common Pleas Court, such judge " shall proceed * * * to examine into said affidavit, and if he finds from all the evidence that such interest, relationship, bias, prejudice, or disqualification exists, he shall designate another" magistrate or judge. Section 2937.20, Revised Code (formerly Section 13433-19, General Code).
In support of his contention that he, as Chief Justice, was required to conduct a hearing to determine whether the common pleas judge, with respect to which the admittedly adequate affidavit of prejudice was filed in the instant case, was or was not disqualified, respondent relies upon the decisions of this court in Duncan, Judge, v. State, ex rel. Brown, 82 Ohio St. 351, 92 N.E. 481, and State, ex rel. Chute, v. Marshall, Chief Justice, 105 Ohio St. 320, 137 N.E. 870.
In the Duncan case, the syllabus reads:
"The affidavit setting forth the fact of disqualification of a judge, as provided in Section 550, Revised Statutes, is not conclusive proof of the disqualification, and the supervising judge is, by said section and Section 469, Revised Statutes, invested with a judicial discretion to require additional information satisfactory to him, regarding such disqualification."
Section 550, Revised Statutes, provided that, on the filing of an affidavit "setting forth the fact of interest, bias, prejudice or disqualification, the clerk of the court shall enter the fact of the filing of such affidavit on the trial docket * * * and forthwith notify the supervising judge * * * who shall proceed in the same manner as provided in Section 469 to designate and assign some other judge * * *." That Section 469 provided that, when such supervising judge " receives satisfactory information that by reason of illness or other disability of any judge" such judge is unable to perform certain duties, the supervising judge "shall designate and assign" another judge.
In the opinion by Davis, J., it is stated:
"The affidavit is, at best, no more than prima facie evidence of the fact. The supervising judge may accept it and act upon it if he chooses to do so; but if, for any reason, he feels that further evidence of the disqualification is desirable, it is not only his privilege but his duty to require it. He is therefore invested with a judicial discretion which cannot be controlled by a writ of mandamus."
Under the provisions of Section 469, Revised Statutes, with respect to receiving "satisfactory information," it is apparent that the decision rendered was the only one which could have been properly made.
It is then stated further in that opinion that, "if the affidavit be taken as final and conclusive, it would raise a more serious question as to whether the Legislature has overstepped constitutional limits." Apparently this statement was made because there was no specific provision in the Ohio Constitution prior to 1912 as to the power of the General Assembly with respect to disqualification of judges. Such provision as to the power of the General Assembly was supplied by the 1912 amendment of Section 3 of Article IV of the Ohio Constitution, which reads so far as pertinent:
"* * * and until the General Assembly shall make adequate provision therefor, the Chief Justice of the Supreme Court of the state shall pass upon the disqualification or disability of any judge of the Court of Common Pleas, and he may assign any judge to any county to hold court therein." (Emphasis added.)
In 1913, shortly after this constitutional provision became effective, the General Assembly enacted Section 1687, General Code (now Section 2701.03, Revised Code). In enacting that statutory section, it apparently intended to make an "adequate provision" for passing upon "the disqualification or disability" of a common pleas judge. Certainly, there could have been no other purpose for its enactment.
Subsequently, in 1922, this court, by a four to two vote, rendered its decision in State, ex rel. Chute, v. Marshall, Chief Justice, supra.
It may be inferred from a reading of the opinion "by the court" in that case that the four members who concurred therein had some doubt as to whether, if the words of Section 1687, General Code, were given their ordinary meaning, the General Assembly had made the " adequate provision" for passing "upon the disqualification or disability of" a judge of the Court of Common Pleas which it had been authorized to make. However, it was apparently recognized that, in view of the provisions of Section 2 of Article IV of the Ohio Constitution, it would require the concurrence of six judges to declare Section 1687 unconstitutional; and this is probably the reason why the opinion is based entirely upon a construction of Section 1687, General Code, which disregards the ordinary meaning of the unambiguous words used in that statute.
Thus, in the opinion by the court, it is frankly stated:
"Although Section 1687, General Code, does provide that, on the filing of an affidavit of any party, or of the counsel of any party, setting forth the fact of interest, bias or prejudice of a judge of the Common Pleas Court, the clerk shall notify the Chief Justice of the Supreme Court, who shall designate and assign some other judge to take his place, yet Section 2253-1, General Code, passed by the Legislature in 1917, is in pari materia with Section 1687, General Code, and must be read and construed therewith. That section provides as follows: `The Chief Justice of the Supreme Court shall receive his actual and necessary expenses incurred while performing his duties under the law and the Constitution in determining the disqualification or disability of any judge of the Court of Common Pleas or of the Court of Appeals, to be paid from the state treasury upon the warrant of the Auditor of State, issued to such Chief Justice.'
"* * * It can be found that provision for such hearing and determination has been made by law only by construing these sections together. * * *"
The reasons thus advanced for rewriting the unambiguous words of Section 1687, General Code, are unsound for several reasons.
In the first place, there was no occasion to construe Section 1687, General Code, as in pari materia with Section 2253-1, General Code. It is elementary that rules of construction, such as the rule of in pari materia, are resorted to for the purpose of resolving or removing ambiguities, — not for the purpose of giving to words, which have a clear and definite meaning, a different meaning from that clearly and definitely expressed by the lawmakers.
In the second place, Section 2253-1, General Code, was not enacted until 1917, four years after the enactment of Section 1687, General Code. Certainly, during those four years, Section 1687, General Code, could not be construed as in pari materia with a nonexistent statute. By no stretch of imagination can it be said that the General Assembly, which enacted Section 1687, General Code, in 1913, intended the clear and unambiguous words which it then used to have a meaning different from that which they then clearly and definitely expressed merely because another General Assembly four years later might enact Section 2253-1, General Code. The question then is whether, by the enactment of Section 2253-1, General Code, the General Assembly which enacted that section in 1917 intended by that enactment to amend Section 1687, General Code. No such intention is expressed. To give effect to such an intention would be to imply an amendment of one statute from the enactment of another. It is elementary that repeals by implication are not favored. The same reasons for not favoring such repeals should operate to militate against favoring amendments by implication.
Also, there are no words in Section 2253-1, General Code, which support the conclusion that the General Assembly which enacted it in 1917 must have contemplated that the Chief Justice might, under Section 1687, General Code, conduct a hearing to determine the disqualification of a common pleas judge. It is obvious that, in performing his duties under Section 1687, General Code, even if that section is construed so as not to authorize a hearing to determine the disqualification of a common pleas judge, the Chief Justice might incur actual and necessary expenses. Just as one example, he might necessarily incur an expense in communicating by telephone with the clerk of a Common Pleas Court with respect to the form of the affidavit filed. In order to determine whether a common pleas judge was disqualified because of the filing of an affidavit, it would of course be necessary for the Chief Justice to know what was stated in such affidavit. It is apparent therefore that the provisions in Section 2253-1, General Code, for "actual and necessary expenses incurred while performing his duties under the law and the Constitution in determining the disqualification or disability of any judge of the Court of Common Pleas," are not inconsistent with a construction of Section 1687, General Code, which would not either authorize or permit him to conduct a hearing. Nothing is said in either Section 1687 or 2253-1, General Code, about conducting a hearing.
It may be observed that nothing is said in the opinion "by the court" in the Chute case about Section 1527, General Code (now Section 2501.13, Revised Code, relating to disqualification of a Court of Appeals judge), which was enacted at the same time as Section 1687, General Code, and even as a part of the same act.
The Chute case is not mentioned in State, ex rel. Turner, v. Marshall, Chief Justice, 123 Ohio St. 586, 176 N.E. 454, where a writ of mandamus was issued compelling the Chief Justice to assign another judge in place of a common pleas judge with respect to whom an affidavit of prejudice had been filed. A reading of the report of the latter case indicates also that, in reaching its decision, this court considered only the affidavit of prejudice and counteraffidavits filed by the parties.
In State, ex rel. Grogan, v. Wanamaker, Judge, 139 Ohio St. 293, 39 N.E.2d 853, paragraph one of the syllabus reads:
"Under Section 12000, General Code, upon timely application of a party and his or her affidavit that a fair and impartial hearing and determination cannot be had before the court in which the petition for divorce or alimony is filed, a change of venue shall be allowed and the cause removed to some county in the same judicial district. No hearing on the basis or grounds of such party's belief or reason for such application or affidavit is authorized. The statute is mandatory." (Emphasis added.)
The statute there involved (former Section 12000, General Code) read:
"Upon application of a party and his or her affidavit that a fair and impartial hearing and determination can not be had before the court in which a petition for divorce or alimony is filed, a change of venue shall be allowed, and the cause removed to some county in the same judicial district for hearing and determination."
The opinion (page 299) attempts to distinguish State, ex rel. Chute, v. Marshall, Chief Justice, supra ( 105 Ohio St. 320), merely by stating that "Section 12000 * * * is purely a venue statute," and that the Chute case "which was based upon Sections 1687 and 22453-1, General Code" was "concerned with the disqualification of a judge and not with the question of venue." The report of the Grogan case (page 295) discloses that the relator "testified that he was of the opinion that he could not get a fair trial before two of the six judges of the Court of Common Pleas of Summit County and that he had no information that caused him to believe that he could not get a fair trial before any of the other four judges of the court." It is apparent therefore that the decision in the Grogan case enabled the relator therein, in effect, to disqualify not merely one but six Common Pleas Court judges by the mere filing of an affidavit. To be sure, the statute stated that, on filing such an affidavit, only "a change of venue shall be allowed." It is obvious however that such change of venue would necessarily include all of what Section 1687, General Code, referred to as the designation and assignment of some other judge to take the place of the six Summit County judges. It would appear therefore that the Chute case could not really be distinguished in, and this court should have recognized that it was in effect being overruled by, the decision of the Grogan case. Actually, the Grogan case gave the relator therein everything and a great deal more relief than the relator in the Chute case had even asked for or than the relief requested by relator in the instant case, although the statutory language involved in the Grogan case was no more mandatory in its character than the clear and unambiguous words of the statute relied upon by the relators in the Chute case and by the relator in the instant case.
Most of the contentions, as to why the mere filing of an affidavit of prejudice should not require the judge involved to withdraw from the case, are rejected by the reasons stated in the opinion of the Supreme Court of the United States in Berger v. United States, 255 U.S. 22, 65 L. Ed., 481, 41 S. Ct., 230. Thus, it is stated therein:
"The cases * * * militate against the contention of the government and they have confirmation in the words of the section. Their declaration is that `whenever a party to any action or proceeding, civil or criminal, shall make and file an affidavit that the judge before whom the action or proceeding is to be tried or heard has a personal bias or prejudice either against him or in favor of any opposite party to the suit, such judge shall proceed no further therein, but another judge shall be designated * * * to hear such matter.' There is no ambiguity in the declaration, and seemingly nothing upon which construction can be exerted — nothing to qualify or temper its words or effect. It is clear in its permission and direction. It permits an affidavit of personal bias or prejudice to be filed and upon its filing, if it be accompanied by certificate of counsel, directs an immediate cessation of action by the judge whose bias or prejudice is averred, and in his stead, the designation of another judge. * * *
"* * *
"* * * an affidavit upon information and belief satisfies the section and * * * upon its filing, if it show the objectionable inclination or disposition of the judge, which we have said is an essential condition, it is his duty to `proceed no further' in the case. And in this there is no serious detriment to the administration of justice nor inconvenience worthy of mention, for of what concern is it to a judge to preside in a particular case; of what concern to other parties to have him so preside? And any serious delay of trial is avoided by the requirement that the affidavit must be filed not less than ten days before the commencement of the term.
"Our interpretation of Section 21 has therefore no deterring consequences, and we cannot relieve from its imperative conditions upon a dread or prophecy that they may be abusively used. They can only be so used by making false affidavit; and a charge of, and the penalties of, perjury restrain from that — perjury in him who makes the affidavit, connivance therein of counsel thereby subjecting him to disbarment. And upon what inducement and for what achievement? No other than trying the case by one judge rather than another, neither party nor counsel having voice or influence in the designation of that other * * *."
See also U'Ren v. Bagley, Judge, 118 Ore., 77, 245 P. 1074, 46 A.L.R., 1173; Bachmann v. City of Milwaukee, 47 Wis. 435, 2 N.W. 543; State, ex rel. Anaconda Copper Mining Co., v. Clancy, Judge, 30 Mont. 529, 77 P. 312.
STEWART, J., concurs in the foregoing dissenting opinion.