1 Reported in 273 N.W. 684. This is an action to make permanent and absolute a writ of prohibition preventing the Honorable Vince A. Day, a judge of the fourth judicial district, from acting upon an executive order of the governor which assigned him to hear and determine an action pending before the regularly elected, qualified, and acting judge of the tenth judicial district.
Relators commenced an action in the district court of Freeborn county, tenth judicial district, of which district the Honorable Norman E. Peterson is the only judge, to restrain five striking employes and nine nonemployes, who, in a sit-down strike, were alleged to have seized premises and equipment owned by relators and used by them in a general trucking business. After hearing the testimony ex parte, the trial court made findings of fact and entered an *Page 79 order requiring the defendants to show cause why temporary injunctions should not issue as prayed for in the complaint. The order to show cause was accompanied by a temporary restraining order.
One Dave Petersen, a defendant in the injunction suit, sent to the governor of the state of Minnesota an affidavit alleging that Judge Peterson was prejudiced against him and in consequence was disqualified from acting in the suit and requested the governor to appoint another judge to try the action. The affidavit did not allege that Judge Peterson was disqualified in any other way than by prejudice. March 30, 1937, the governor promulgated an order appointing the Honorable Vince A. Day, judge of the fourth judicial district, to hear and determine the case at Albert Lea at a time therein designated, and removing Judge Peterson from acting on the ground that he was disqualified.
Relators applied to this court for a writ of prohibition, and March 31, 1937, an alternative writ directing Judge Day to refrain from proceeding further and to show cause why he should not be restrained from so proceeding was issued. The application for the writ was based upon an affidavit of relator Thompson stating that Judge Peterson is in good health, is fully up with his work, and has no accumulation of business undisposed of; is not pecuniarily interested in the litigation nor related to any of the parties to it. Dave Petersen's affidavit did not controvert any of the above facts.
2 Mason Minn. St. 1927, § 9221, provides for the filing of an affidavit of prejudice in a district where there are two or more judges. The section did not apply in the tenth district when this proceeding arose because there is but one judge (but see L. 1937, c. 237).
In State ex rel. Decker v. Montague, 195 Minn. 278,262 N.W. 684, this court went fully into the history of the statutes purporting to vest in the governor power to substitute a trial judge when convenience or the public interest requires it, and it was there held under the circumstances existing in the Montague case that it was not constitutionally permissible for the governor to designate a judge to try the Decker case. *Page 80
As noted in the Montague case, art. 6, § 5, of our state constitution provides:
"The legislature may provide by law that the judge of one district may discharge the duties of the judge of any other district not his own, when convenience or the public interest may require it."
In 1 Mason Minn. St. 1927, § 158, which was under consideration in the Montague case, the legislature added to the convenience or the interest of the public "the interest of any litigant." From our discussion in the Montague case it is quite obvious that this court regarded that quoted constitutional provision as applying to a situation where a district judge was disabled or where the accumulation of business was such that he was unable to take care of it. The history of the legislation from territorial days down to 1891 indicates that the legislature shared our present views on that subject.
2 Mason Minn. St. 1927, § 9218, prohibits a district judge from sitting in any cause except to hear a motion to change the venue, if he be interested in its determination or if he might be excluded for bias from acting therein as a juror. It also provides that if he be the only judge of the district he shall grant a change of venue whenever upon a motion his interest or bias shall be made to appear "unless before the motion is heard the governor shall have assigned another judge to try such cause." Actual bias is defined in 2 Mason Minn. St. 1927, § 10737, as a state of mind which prevents a juror from trying an issue impartially and without prejudice to the substantial rights of the challenging party; but since Sjoberg v. Nordin,26 Minn. 501, 5 N.W. 677, this statute has been interpreted as not disqualifying a judge for other than a pecuniary interest in the event of the action. The language of the statute was somewhat modified by the 1905 revision but the meaning was not changed. State v. Ledbeter, 111 Minn. 110, 126 N.W. 477. The Sjoberg case has stood too long and has been followed too many times for this court now to depart from its construction of the statute. It follows that the Dave Petersen affidavit stated no cause for disqualifying Judge Peterson.
Art. 3, § 1, of our state constitution provides: *Page 81
"The powers of the government shall be divided into three distinct departments, the legislative, executive, and judicial;and no person or persons belonging to or constituting one ofthese departments shall exercise any of the powers properlybelonging to either of the others, except in instances expressly provided in this Constitution." (Italics supplied.)
We do not regard the provisions of art. 6, § 5, as sufficient authorization to the legislature to empower the executive to step out of his constitutional sphere and to exercise authority properly belonging to the judicial branch of the government. We think that full power under art. 6, § 5, could be exercised by the legislature without calling in the executive. If so the section should be so construed, because to construe it otherwise would be in derogation of the provisions of art. 3, § 1, which are fundamental to the preservation of a free democracy. Other means have been provided for disposal of matters arising before judges disqualified by interest or by alleged bias, L. 1937, c. 237.
As stated in the Montague case, the power sought by § 158 to be vested in the governor is fundamentally a judicial power and hence, unless granted to him by some other provision of the constitution, it is in contravention of art. 3, § 1. Even if art. 6, § 5, were construed to authorize the legislature to act by so empowering the governor, it does not extend to the disqualification here sought to be invoked as a basis for the exercise of the power. Even if § 158 were construed to reach bias and prejudice insofar as it seeks to vest in the governor authority to substitute judges on account of bias or prejudice, it goes beyond the authority of art. 6, § 5, and the same may be said of the implication that the governor has such authority, contained in § 9218. U'Ren v. Bagley, 118 Or. 77,245 P. 1074, 46 A.L.R. 1173, is not in point because the power of the legislature to invest the executive with judicial functions was not involved. The question there presented was whether a statute like our § 9221 was constitutional. No one in this state has ever questioned such constitutionality. The point before us is whether under our constitution the legislature may provide that the governor may exercise a power properly belonging to the judicial branch. *Page 82 We hold that art. 6, § 5, does not authorize such legislation.
Nobody denies that the legislature may regulate the practice and proceedings of the courts. Minn. Const. art. 6, § 14. Nobody questions its right by law to say when, for what cause, and in what manner a trial judge may be disqualified to proceed further in a case. But the matter of selecting the substitute judge pertains to the everyday, routine management of the courts and therefore is a judicial function. Hence it cannot be delegated to the executive department. To illustrate: In our several districts with two or more judges, one of them frequently steps aside because he feels that the litigants or their counsel, or some of them, would prefer to have a case tried by another. That, too, is quite the ordinary thing even without the filing of an affidavit of prejudice. In Hennepin county there are eleven judges; in Ramsey, eight. Nobody has ever considered it a constitutional function of the governor to step into either of those counties for the purpose, from day to day, of assigning and reassigning the judges. Nobody would consider, for instance, that constitutionally it could be made a function of the governor to come in at the beginning of the term and say what judges should hear the criminal calendar, which the jury cases, which others the court cases, and name the one, if any, to care for matters to be presented in chambers. Yet just such a law would be constitutional if, as here, when any judge anywhere in the state is disqualified for prejudice, there may be delegated to the governor the duty of selecting his substitute.
We hold that the executive order of March 30 was without authority and void, and the alternative writ should be made permanent and absolute.
So ordered.
Cases Nos. 31,380, 31,381, 31,382 are similar suits arising out of the same actions and supported by similar affidavits on both sides and are therefore controlled by the foregoing.