Counsel for plaintiffs in error, in his petition in error and in the assignment of error contained in his brief, sets out numerous assignments of error, only one of which is necessary to consider: Was there any warrant in law for the election of a special district judge on April 9, 1908?
The latter part of section 9, art. 7, of the Oklahoma Constitution, reads:
"In the event any judge shall be disqualified for any reason from trying any case in his district, the parties to such case may agree upon a judge pro tempore to try the same, and if such parties cannot agree, at the request of either party a judgepro tempore may be elected by the members of the bar of the district present at such term. If no election for judge protempore shall *Page 546 be had, the Chief Justice of the state shall designate some other district judge to try such case."
Was this provision of the Constitution self-executing? InCowart v. State, 4 Okla. Crim. 122, 111 P. 672, it was held in the negative, and this construction was followed by this court in Spade v. Morton et al., 28 Okla. 384, 114 P. 724, in which case, Hayes, J., speaking for the court, said:
"In Cowart v. State, 4 Okla. Crim. 122, 111 P. 672, the Criminal Court of Appeals of this state held the foregoing provision of the Constitution authorizing the election of judges pro tempore not to be self-executing. Without repeating the reasoning of the court upon which it reached such conclusion, it will suffice to say, we think, that both the conclusion reached and the reason given in support thereof are sound."
Here, as in Cowart v. State, supra, the election of a special judge to try the case was opposed by counsel representing the defendants below, and, while the reasons given for the objections made, and which are set out in extenso in the journal entry, do not include the fundamental objection of jurisdiction, at the same time, the reasons assigned affirmatively show a want of consent, even though in such case consent would confer jurisdiction, a question which we do not attempt to here determine. Having objected to the authority of the special judge to try the case, the subsequent participation in the trial constituted no waiver of defendants' rights.
It will be observed that the selection of the special judge and the trial of the cause were had before the passage of the act of the Legislature of March 22, 1909 (article 6, ch. 24, Comp. Laws 1909), providing for the selection and appointment of special judges, or judges pro tempore, when the regular trial judge should be disqualified.
We conclude that the special judge was without authority of law to hear and determine said action; therefore the case should be reversed and remanded.
By the Court: It is so ordered.
All the Justices concur. *Page 547