1. In their petition for a rehearing counsel for respondents[14] contend that our decision disregards the provisions of section 9191, Revised Codes of Montana of 1935, which admonishes the court to disregard any error or defect in the proceedings which does not affect the substantial rights of the parties and argue that, "it looks to us as if the Court had insisted upon a legalistic determination of this matter in disregard of the substantial rights of the parties." The above statute on which respondents rely has no application where jurisdiction is wanting (Choate v. Spencer, 13 Mont. 127, 136, 32 P. 651, 20 L.R.A. 424, 40 Am. St. Rep. 425) nor where substantial error *Page 373 has been committed. Olcott v. Gebo, 54 Mont. 35, 166 P. 300. In the case at bar, immediately upon the filing of the affidavit of disqualification, the law stepped in and took from the judge against whom the affidavit was directed all his power, authority and jurisdiction to act further in the proceeding expressly commanding that he "must not sit or act as such" therein and further declaring that he "shall be without authority to act further in the * * * proceeding." Sec. 8868, Rev. Codes of Montana 1935.
Clearly the provisions of section 9191, Revised Codes of 1935, supra, are not applicable here where the substantial right of the litigants to have a fair trial before an impartial judge is involved.
Impartiality is the very foundation of the American judicial system and the public policy of this state on the subject of the disqualification of district judges is clearly determined by the legislative utterance found in section 8868, Revised Codes 1935.
Section 180 of the Code of Civil Procedure of 1895 provided for the disqualification of judges in the cases enumerated in subdivisions 1, 2 and 3 of section 8868, Revised Codes 1935. Those subdivisions were found to be inadequate to insure a fair trial before an impartial judge in many cases and on November 10, 1903, the governor of Montana, upon public demand therefor expressed in petitions from all parts of the state, issued a special proclamation convening the legislative assembly in extraordinary session for the express purpose of considering general legislation by which bias and prejudice of a district judge should effect the disqualification of such judge and prevent his sitting or acting as a judge in any action or proceeding in which such disqualification was properly and timely urged. Pursuant to such call of the governor the legislature convened in extraordinary session and amended section 180, supra, by adding thereto subdivision 4, being the Fair Trial Law. See Chapter 3 of the Second Extraordinary Session of 1903.
Later the statute was amended by the enactment of *Page 374 Chapter 114, Laws of 1909 and Chapter 93, Laws of 1927, now section 8868, Revised Codes of Montana 1935.
In State ex rel. Carleton v. District Court, 33 Mont. 138,143, 82 P. 789, 790, 8 Ann. Cas. 752, this court in an opinion by Chief Justice Brantly, said: "Furthermore it is the policy of our system that every litigant, no matter in what form his application may be presented to the court, shall have his rights adjudicated by a judge who is not interested in the result. It cannot be doubted for an instant that it would be perversion of justice for a judge to sit in any proceeding in the event of which he has an interest, whether such interest arise from the fact that he is a party in interest, directly or indirectly, or that he is related to one or more of the parties, or that he has theretofore been an attorney or counselor for one of the parties to the action or proceeding. Nor should he be allowed to sit, when he is laboring under bias or prejudice toward one or more of the parties litigant. By the amendment of section 180, supra, the Legislature has sought to provide a means by which this latter condition may be avoided. In doing so, it recognized the inherent difficulty of attaining this end, if a judge, possibly already biased or prejudiced, or in any event more or less affected by a feeling of offense arising out of the charge made against him by the litigant, be permitted to sit and try the question whether or not he is in fact biased, and, in its effort to meet a situation surrounded by so much difficulty, enacted the amendment to section 180, supra, which makes the imputation sufficient to require a change of judge, or, in default thereof, of the place of trial under section 615. Of the wisdom of its action there may be much doubt or question; but it must not be overlooked thatthis ground of disqualification stands upon the same level ofimportance as do the others enumerated, except as to the time when the imputation may be made, and operates just aseffectively, if invoked at the proper time." (Emphasis supplied.)
2. In their petition counsel for respondents also urge "that the Court has overlooked the facts in the case, which are clearly *Page 375 apparent from the record, and which show how the affidavit came to be withdrawn." The petition for rehearing then states:
"As should be apparent from the record, the trial judge was prepared to proceed regardless of the affidavit, obviously on the theory that the affidavit was ineffective. The case was not an ordinary law suit, but a proceeding designed to establish an irrigation district and a matter affected with an important public interest. The speed required not only by the express terms of the irrigation district law, but by the circumstances arising out of an available federal appropriation made it essential that an immediate hearing be had. The petitioner who had filed the affidavit, and done so in good faith, together with the other petitioners was perforce confronted with the dilemma of either seeking supervisory control at a time when this court was not in session, or of abandoning and waiving his attempted disqualification so that prompt determination of the case might be had. That is why the affidavit was withdrawn, and it is believed that the record clearly shows that this is how the attempt to waive the disqualification came about."
The affidavit of the petitioner Wimett is clearly sufficient and the filing thereof effectively divested the judge against whom it was directed of all authority to further sit or act in the proceeding. It matters not that the trial judge was prepared to disregard the affidavit and the law and to do battle with any who should challenge his jurisdiction to proceed for no matter how well prepared he may have been, the law forbids his further acting in this proceeding. Upon the filing of the affidavit the law stripped him of power to try the issues or decide the case and further proceedings before him were coram non judice.
The provisions of subdivision 4 of section 8868, Revised[15] Codes, apply not only to ordinary law suits but they apply to any "action, motion or proceeding" including matters affected with an important public interest as here.
We are not at all impressed with counsel's argument that because *Page 376 [16] this court was not in session on August 6th when the matter came on for trial, affiant and the other petitioners were forced to abandon and waive the disqualification of the judge "so that prompt determination of the case might be had." The statute (sec. 8868) remained in full force and effect regardless of whether this court was in session or not and neither the affiant Wimett nor any other party to these proceedings was required to abandon, waive or surrender any of the rights or benefits conferred thereby. This court was in session at the time respondents filed their original petition and at the time the order was made setting such petition for hearing and for more than two weeks thereafter. The machinery of this court is fairly mobile and a quorum may be assembled on surprisingly short notice to deal with sudden and real emergencies, even in recess or vacation time. Hence neither Wimett nor any other petitioner was required to submit his cause to a disqualified judge for any of the reasons which respondents here assign.
Not only did respondents fail to apply to this court for any relief but they saw the judge whom they had disqualified take his place on the bench and sit in the case without registering any objection to such procedure and when counsel for appellants called the judge's attention to the fact that because of his disqualification he had no jurisdiction to try the case, counsel for respondents then sought to reinvest the disqualified judge with the power of which he had been shorn by addressing to him a motion for leave to withdraw the disqualifying affidavit. The Fair Trial Law did not permit the disqualified judge to act upon that motion and most assuredly it did not permit him to rule that the disqualifying affidavit "is out of the way in this case." The disqualified judge was without authority to sit or act as a judge in the proceeding and the order made by him from which this appeal was taken is void.
The petition for rehearing is denied.
Rehearing denied May 25, 1948. *Page 377