I have been directed by the members of the court who are not presiding in this case to make a statement, in order that their positions may be understood by counsel.
We understand that Northwestern Mutual Life Insurance Company is a mutual insurance company, in which the holders of its life-insurance policies have a pecuniary interest. Chief Justice Reid and Justices Jenkins and Duckworth have life-insurance policies in this company. While Presiding Justice Atkinson does not hold a policy in this company, he is related by affinity within the prohibited degree to a policyholder.
It is of course well known to counsel that Justice Duckworth has disqualified himself in this and in similar tax cases, because of his official connection with these particular matters while serving as assistant attorney-general.
While all of these Justices presided in Hirsch v.Northwestern Mutual Life Insurance Company, 191 Ga. 524 (13 S.E.2d 165), in which this same company was a party, it did not occur to Judges Reid, Jenkins, or Duckworth that the fact that they held policies in this company, as they do, constituted ground for disqualification, and hence the fact that they held such policies was not thought of or mentioned.
The question of disqualification arose in the present case only by mere accident; and when it did arise, the Justices who held such policies, after careful consideration, considered themselves legally disqualified for this reason.
Judge Atkinson has consistently held it to be a ground of disqualification that a judge or justice holds a policy of life insurance in a mutual company, or is related within the prohibited degree to one who holds such a policy; or rather that has been his view since the decision in State Mutual LifeInsurance Company v. Walton, 142 Ga. 765 (83 S.E. 656). *Page 517
On discovery of the disqualifications for policy relationship, which was after the case had been submitted, it was then considered proper to notify counsel. Counsel agreed to waive the disqualification, and as to this the following may be said. It has also been the consistent policy of Judge Atkinson never to accept a waiver in any case if he is legally disqualified. He feels there is only one invariable rule to follow; and that is, not to preside, and such was his view in this instance.
Judge Reid intended to accept the waiver, but was out of the city at the time the final order on the subject was drawn, and through error or misunderstanding on the part of Judge Grice and myself, the only two Justices who were thought not disqualified, we designated a judge of the superior court to preside in his stead. We simply acted on a mistake as to Judge Reid's position, which of course we genuinely regret. However, after the order was passed, Judge Reid, deeming himself to be actually disqualified, considered that it would result in less confusion to let the matter pass as though he would decline the waiver, than to reopen it and displace the judge who had been designated in his stead.
The question whether a Justice is disqualified is one of law, and is governed by rules of law; while the question whether he will accept a waiver is one to be determined by him according to the particular circumstances existing at the time. Judge Jenkins, like Judge Reid, would ordinarily accept such waiver, but declined in this case, in order to be in line with what he thought was the conclusion of Judges Reid and Atkinson; Judge Duckworth having already held himself disqualified on other ground.
The fact that in this case Judges Reid and Jenkins are recorded as not accepting the waiver should not be considered as precedents as to either of them. Ordinarily in case of a disqualification of this kind, which they regard as being more technical than substantial, they would accept a waiver if offered; being governed, however, in each instance by the particular circumstances existing at the time, and relating to the propriety of their presiding in the particular case.
Judge Grice was not aware, and is not now aware, of any disqualification as to him; but in the last few days since this matter arose, one of his colleagues has suggested that a person to whom he is related within the prohibited degree probably does hold a policy *Page 518 in this company. He knows of a number of persons who are near relatives of his, but it had never occurred to him to make inquiry of all these relatives, who are scattered throughout at least seventeen States of the Union, and some across the seas, in order to ascertain whether or not he is disqualified in every case in which a mutual insurance company is a party. If under the law he is actually disqualified in the instant case, he accepts the waiver thereof which has been tendered by counsel, deeming it proper as well as expedient for him to do so.
Nor do the other Justices or any of them consider it their duty to make such inquiry.
Judge Duckworth accepts the waiver so far as it applies to his relation as a policyholder, but could not preside because of his disqualification on other ground, which he regards as substantial.
In view of the situation as thus stated, it was deemed proper to have reargument of the case, as only Bell of those who are finally to preside had heard the oral argument.