
    BIAS OR PREJUDICE — COURTS.
    [Richland (5th) Circuit Court,
    January Term, 1906.]
    Donahue, McCarty and Taggart, JJ.
    State ex rel. Wulle v. Darius Dirlam.
    1. Revised Statutes 550 (Lan. 876) as to Affidavits of Bias ok Prejudice, is CONSTITUTIONAL.
    Revised Statutes 550 .(Lan. 876), providing for the filing, in certain cases, of affidavits of bias or prejudice against common pleas judges is not an attempt on. the part of the legislature to abridge the powers and functions of a co-ordinate branch of the government, and, is not, therefore, unconstitutional.
    2. Mandamus and Injunction will Lie to Restrain Hearing of Case by Judge after Affidavit of Prejudice Filed, if he Signifies Intention to Hear Same.
    The effect of the filing of an affidavit of bias or prejudice under Rev. Stat. 550 (Lan. 876), is to disqualify a common pleas judge from presiding at the trial of that cause, and his statement in open court that it is his purpose so to do, irrespective of the affidavit, will be sufficient ■ grounds for mandamus and injunction.
    [Syllabus approved by the court.]
    MaNdamus.
    Cummings, McBride & Wolfe, for plaintiff, cited:
    
      Wolfe v. Marmet, 72 Ohio St. 578-.State v. Babbits, 46 Ohio St. 178 [19 N. E. Rep. 437]; State v. Wolfe, 6 Gire. Dec. 118 (11 R. 591); Barclay v. Salmon, 9 Gire. Dec. 520 (17 R. 152); North Bloomfield Gravel Mining Go. v. Keyser, 58 Cal. 315.
    Darius Dirlam, for defendant;
   TAGGART, J.

This proceeding in mandamus and injunction is brought to require the defendant to refrain from hearing and to pass a certain cause pending in the court of common pleas wherein the relator is a party to another judge of this judicial district by reason of the fact that an affidavit of prejudice was filed in the action purporting to disqualify all the judges of the subdivision in which the county of Richland is situate.

The only questions necessary for the court to pass upon are: First, Is the affidavit which was filed in December, 1905, sufficient under the statute as construed in a recent decision of the Supreme Court; and second, Does the evidence show that the defendant, with knowledge of the filing of this affidavit, had the purpose and intention to go on and hear the case, notwithstanding the filing of said affidavit, and refused to pass the ease to another judge or permit another judge to hear said cause.

As to the first question, it is contended by the defendant that the force and effect of the affidavit is to interfere with’ the proper administration of justice; the effect of Rev. Stat. 550 (Lan. 876), is an attempt on the part of the legislature to abridge the power and functions of a co-ordinate branch of the government; that the legislature cannot so abridge nor interfere with the judicial and that in consequence thereof, he was entitled to disregard the filing of this affidavit.

'While the question may be a serious one, yet we are inclined to follow what we believe to be the safer rule of holding that the statute is not an abridgment of the rights or powers of the judiciary by the legislature, but simply a provision for a litigant to have what is in substance a change of venue, instead of transferring the case to another jurisdiction, it retains the case in the jurisdiction where the action is brought, but provides for another judge to hear and determine the cause. This statute, as we view it, does not rob the court of any of its powers or jurisdiction to hear and determine the cause, but simply provides that another judge than these disqualified by the statute shall preside in the hearing of the case when tried.

True, in the opinion in Wolfe v. Marmet, 72 Ohio St. 578, 583, the judge announcing that opinion declares that the question of the constitutionality of this statute is still a mooted one -in Ohio, and one of serious import, and it is perhaps true that the question has never been fairly and fully determined by our Supreme Court, yet the Supreme Court of Ohio has, in various other cases, particularly State v. Shaw, 43 Ohio St. 324 [1 N. E. Rep. 753], given effect to this statute, and has held that mandamus would lie to compel the clerk to proceed under it, so that the legal effect of such a decision by the Supreme Court is, that the statute itself is constitutional; otherwise no such writ ought to have been allowed, notwithstanding the direct question was not raised in the case, yet it was necessarily there, and if the statute was void and unconstitutional, the order was clearly wrong. So that a court of inferior jurisdiction ought not to hold that the Supreme Court did not understand the effect of its decision, and did not give due consideration to all questions in the case whether they were raised upon paper or not, and we think, from the reading of these cases, that judicial subordination requires us to hold this statute constitutional, and that the Supreme Court only, should disturb the effect of these decisions. In our opinion the affidavit fills the provisions of the statute and is sufficient.

As to the second question, the testimony in the case, and notably the statement in open court of the defendant that it was his purpose and intention to hear the case and determine- the same irrespective of the .affidavit, places beyond a peradventure and sets at rest all questions involved in the second branch of this case. We think that upon the filing of this affidavit the judges of the subdivision in which the •county of Richland is located, were disqualified from hearing this case, ■and the only duty in respect to such case upon being informed of the filing and existence of the affidavit, was to pass the case, and refuse and decline to hear * the same. By the provisions of the statute, it was the duty of the clerk to certify the filing of this affidavit to the presiding judge unless he were one of those disqualified, in which event the same was to be certified to some other judge of the district.

It being admitted by the defendant that he refused so to pass the •case and unqualifiedly insisted upon hearing the same, we 'think that a peremptory writ should issue commanding and requiring him to pass .said case, and not hear and determine the same.

Donahue and McCarty, JJ., concur.  