
    Duncan, Supervising Judge, v. The State, ex rel. Brown.
    
      Affidavit claiming disqualification of judge — Not conclusive proof of disqualification, when — Sections 550 and 469, Revised Statutes — Judicial discretion of judge.
    
    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.
    (No. 11970
    Decided June 28, 1910.)
    Error to the Circuit Court of Hancock county.
    This action- was commenced by the defendant in error against the plaintiff in error in the circuit court of Hancock county.
    In her petition in said case she alleges that she is the plaintiff in an action pending in Wyandot county, one of the counties of the tenth judicial district of the state, and that the defendant, Wil-liam F. Duncan, is the supervising judge of said judicial district.
    That on the 31st dajr of March, 1909, she filed with the clerk of the court of Wyandot county her affidavit, also affidavits of her counsel, that Judge Babst, one of the judges of the common pleas court in said district and the judge assigned to try her said case had a bias and prejudice against her and her counsel, and on account thereof was disqualified to sit and hear and determine the case.
    That the clerk of said court entered the fact of the filing of the affidavits on the trial docket in said cause and notified the defendant as supervising judge that said affidavits were so filed.
    That the defendant in said action as such supervising judge refuses to assign any other judge of the common pleas court of said district to try said cause, and she asks that the writ of mandamus may issue commanding the said defendant as such supervising judge to assign some other judge of the district to try said cause.
    In his answer to said oetition, Judge Duncan claims:
    
      First. That the affidavits filed are insufficient in their allegations and in law to operate as a disqualification of said Judge Babst to hear and determine the plaintiff’s cause.
    
      Second. That the statutes made and provided for such cases vest the supervising judge with a discretionary power within which he may determine, when required by affidavits filed for that purpose, whether or not the judge attempted to be disqualified entertains bias or prejudice against either party to a cause, etc., and that it was in the exercise of such discretion that he refused to designate another judge to hear the plaintiff’s cause.
    
      Third. That upon a hearing of which all parties had due notice he became satisfied and so found, and avers as a fact, that no bias or prejudice exists on the part of Judge Babst against the plaintiff in said cause or her counsel; that the affidavits of prejudice were without foundation in fact; that no grounds existed for the filing of the same, and that they were not filed in good faith, but with a purpose to embarrass and obstruct the court in the administration of justice.
    
      
      Fourth. That Section 550, Revised Statutes, under which said affidavits were filed, and the assignment of another judge of said district to try said cause was demanded is unconstitutional as an attempt to abridge the powers and functions of a co-ordinate branch of the government and to provide for the impeachment of such judges without due process of law.
    To this answer of the defendant, the plaintiff in said cause demurred; the circuit court sustained said demurrer and allowed a peremptory writ of mandamus as prayed for in said petition.
    To reverse the said judgment of the said circuit court this proceeding in error is here prosecuted.
    
      Messrs. McConicci & Dzviggins and Mr. George E. Schroth, for plaintiff in error.
    Sections 469 and 550, Revised Statutes, are in pari materia and should be construed together. Him v. State, 1 Ohio St., 15; Bank v. Roosa, 13 Ohio, 335; Cincinnati v. Guckenberger, 60 Ohio St., 353; Cincinnati v. Connor, 55 Ohio St., 82.
    That the legislature may not by its enactments encroach upon the powers delegated by the constitution to the judicial department of government, is a proposition well recognized and understood-Cooley’s Const. Lim. (4 ed.), 110; 6 Am. & Eng. Ency. Law (2 ed.), 1048; Greenough v. Greenough, 11 Pa. St., 489.
    Section 550 confers upon' the litigant or' the maker of the affidavit the sole power and right to determine for himself the question of interest, relationship or bias of the trial nidge.' ; ' ''
    
      As the legislature cannot exercise judicial power itself/ neither can it confer that power upon anyone other than those designated by the constitution, to-wit, the judges of the different courts of the state. Van Slyke v. Insurance Co., 39 Wis., 390; Brown v. Haywood, 51 Tenn., 357; 6 Am. & Eng. Ency. Law (2 ed.), 1050; Wantlan v. White, 19 Ind., 470.
    While it is true that the court of common pleas may exercise only such jurisdiction as is conferred upon it by law, it is created by the constitution and exists by virtue of the provisions of the constitution only, and is invested with certain inherent powers incident and necessary to its creation and existence. Hale v. State, 55 Ohio St., 210.
    If by the terms of the constitution this judicial power is vested in the court of common pleas, then that court cannot be divested of that power by an act of the general assembly. Any act that authorizes the divesting of the court of its judicial power is to that extent in contravention to Article IV, Section 1 of the constitution. We claim that the right given to a litigant under Section 550, Revised Statutes, to disqualify judges on the charge of prejudice, does, by reason of the fact that that right is unlimited, authorize the divesting of the court of its judicial power to decide the case in which the affidavit is filed. Bouvier, “court;” 4 Am. & Eng. Ency. Law (1 ed. 1, 447; 11 Cyc., 652.
    
      Messrs. Meek & Stalter, for defendant in error.
    Section 550, Revised Statutes, was, no doubt, enacted in the interest of justice. For no man ought to be compelled to submit his cause to be tried by an interested, biased or prejudiced judge where in the very nature of things he can not have a fair and impartial disposition of his cause. We think it is the duty of the supervising judge under Section 550, .Revised Statutes, to act upon a statutory condition and his duties in that regard are ministerial and not judicial. This section of the statute is imperative. State v. Shaw, 43 Ohio St., 324; State, ex rel., v. Chapman, 67 Ohio St., 1; State, ex rel., v. Wolfe, 11 C. C., 591; Hunt v. State, 17 Cir. Dec., 16, 27 C. C., 16; Barclay v. Salmon, 9 Cir. Dec., 520; State v. Dislam, 18 Cir. Dec. 69, 28 C. C. 69.
    The statutory condition upon which the supervising judge is required to act under Section 550 of the statutes, is that a sufficient affidavit is filed by the proper party not less than three days prior to the time set for the hearing in such matter or cause. 98 O. L., 59.
    This condition does exist in cause No. 7654, (Werner v. The Supreme Council of the Catholic Mutual Benefit Assn. et al.) now pending in the common pleas court of Wyandot county. But this plaintiff in error is of opinion that before it is his duty to designate and assign another judge to try said cause, he should enter into the realms of metaphysics and satisfy himself that the state of Judge Babst’s mind is such that he is biased and prejudiced.
   Davis, J.

Section 550, Revised Statutes, was amended into its present form in 1889 and again in 1906. 86 O. L., 363, and 98 O. L., 59. Prior to the amendment of 1889 the section 'related merely to change of venue. Since that time it has provided for a change of judges in the same venue. As the statute now reads, upon the filing of an affidavit “setting- forth the fact” of interest, bias, prejudice or disqualification of a judge of the common pleas court in which a cause is pending, it shall be the duty of the clerk of the court to enter the fact of the filing of such affidavit upon the trial docket in such cause and forthwith notify the supervising judge of that subdivision or district.

Such filing of an affidavit and such action by the clerk, however, is only authorized when the judge is interested in the cause, or is related to a party thereto, or has a bias or prejudice for or against Tiny party to such cause or his counsel, or is otherzvise disqualified. Who shall determine whether the prerequisite fact exists? Not the clerk surely, because his sole duty is defined. He shall enter the fact of the filing of the affidavit on the trial docket and notify the supervising judge and with that his duty ends.

But the statute requires the supervising judge to “proceed in the same manner as provided in section four hundred and sixty-nine to designate and assign some other judge,” etc. Section four hundred and sixty-nine provides that when the supervising judge receives “satisfactory information” that by reason of illness or “other disability” a common pleas judge is unable to perform his duty, he shall assign another judge for that duty. Now taking these two sections together, it is clear that two things must concur before the supervising judge is authorized to appoint another judge: first, the actual fact of interest, relationship, bias or prejudice, or other disqualification ■ must exist and, second, he must have satisfactory information of .that fact. 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. 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.

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 cannot be lightly assumed that it intended to do so.

• The judgment of the circuit court is

Reversed.

Summers, C. J., Crew, Spear, Shauck and Price, JJ., concur.  