As I cannot agree with my associates, either as to the reasoning expressed or the conclusion reached in the foregoing opinion, I feel that it is proper, if not in fact a duty, to state the grounds of my disagreement therefrom; and I here submit them as prepared by me for the original opinion in the case of Rhea v. United States, but which was not concurred in by any of the other justices; hence I attach same as my dissent in this case.
The application herein was made under a territorial statute which was based upon an act of congress. The congressional enactment is as follows: "The supreme court of said territory, or the chief justice thereof, may *Page 714 designate any judge to try a particular case or cases in any district when the judge of said district has been of counsel, or is of kin to either party to the action, or interested, or is biased or prejudiced in the cause, or if for any other reason said judge is unable to hold court." (Sec. 3, ch. 5, U.S. Statutes-at-Large, vol. 28, p. 21).
So much of the territorial statute as is material to the question under consideration is as follows:
"A criminal action prosecuted by indictment, or by information originally filed in the district court, may, at any time before the trial is begun, on the application of the defendant, be removed from the court and the county in which it is pending, as follows:
"First. If the offense charged in the indictment be punishable with death or imprisonment in the territorial prison for life, if it be made to appear by the affidavit of the accused, and two disinterested persons, that a fair and impartial trial cannot be had in such county, a change must be granted.
"Second. If the offense charged in the indictment be punishable with confinement for a term less than life, in the territorial prison, and it be shown to the court by the affidavit of the accused, corroborated by five disinterested persons, that a fair and impartial trial cannot be had in the county, the court may in its discretion, award or refuse thechange; the order shall be reviewable on appeal.
"Third. In other cases a change from a county shall be allowed only when it is clearly shown by the affidavits of not less than ten disinterested persons that an unprejudiced jurycannot be obtained in the county to try the cause.
"Fourth. If it be shown to the court by the affidavit of the accused that he cannot have a fair and impartial trial by reason of the bias and prejudice of the presiding judge, or that the judge has been of counsel in said cause, or is of kin to either party to the action, or is *Page 715 interested, a change of judge shall be ordered." (Sec. 21, ch. 41, Session Laws 1895, pp. 197 and 198).
It is contended by appellant's counsel that when a defendant in a criminal action makes an affidavit in the language of the statute, the court must grant the change, i. e., that the statute is mandatory; while counsel for the government contend that the affidavit must set forth the facts upon which it is based and that those facts must be such as to satisfy the court, in the exercise of a sound discretion, that a change of judge should be granted.
A thorough investigation of the question has convinced me that the former contention is the correct one, although there are some apparently well considered opinions holding the contrary. But the weight of authority and, in my judgment, the better reason support the contention that, under a statute like ours, when such an affidavit, as the one hereinbefore set out, is made and presented in proper time, the only further jurisdiction the court has is to make the order granting the change. In fact, a careful reading of the statute itself would seem to enforce this interpretation. Why should the legislature expressly say, in the second and third paragraphs of the section above quoted, that, "the court may in its discretion, award or refuse a change," and include no such provision in the first and fourth paragraphs thereof, if it was intended that the court should exercise any such discretion therein?
Perhaps the strongest and best reasoned case to be found upon this question is that of the State v. Kent, [N.D.], 62 N.W. 631, and is based upon a statute in the following language, "And if the accused shall make an affidavit that he can not have an impartial trial, by reason of bias or prejudice of the presiding judge of the *Page 716 district court where the indictment is pending, the judge of such court may call any other judge of a district court to preside at said trial, and do any other act with reference thereto, as though he was presiding judge of said district court."
In the case last cited, the supreme court of North Dakota say, in part, that:
"It cannot admit of doubt that the act we are interpreting was passed to give the prisoner the right to insist on a trial before a different judge, when the judge of the district in which the indictment is pending is biased. From this proposition there flows the corollary that, on the presentation of an affidavit stating such bias, the right of the accused to have another judge called in to try the case is absolute. If not, then the judge who is so attacked for prejudice sits in judgment on the question of his own bias. It is true that no property interests of his own are involved. Neither is his life nor his liberty at stake. But the mind that can not decide that it is biased without at the same time admitting by such decision that it was willing, in that condition, to enter on the trial of the man against whom the prejudice is entertained, without disclosing such bias, and that it would have carried on such trial to its close, conscious that it was not impartial, a mind placed in a position where a decision against its own freedom from bias will bring it such humiliation, is not that free, calm, disinterested mind, with respect to that question, which the law requires, and the honest administration of justice demands. This consideration renders it impossible for us to impute to the legislature the purpose to permit the judge so assailed to pass upon his own bias. The language of the statute confirms our view that he is not to try this question."
See, also to same effect, in construing an identical statute,State v. Palmer, [S.D.], 57 N.W. 490; State v. Henning, [S.D.], 54 N.W. 536. *Page 717
The following decisions, based upon similar statutes to ours, also support the position herein taken by the writer that said statute is mandatory: Smith v. The State, 1 Kan. 365; Van Slykev. Mutual Fire Ins. Co., 39 Wis. 390; Vogel v. City ofMilwaukee, [Wis.], 2 N.W. 543; Hewett v. Fallett, [Wis.], 8 N.W. 177; Northwestern Iron Co. v. Crane, [Wis.], 29 N.W. 654;Manley v. The State, 52 Ind. 215; Burkett v. Holeman, [Ind.], 3 N.E. 406; Rout v. Ninde, [Ind.], 20 N.E. 704; Bernhamer v.State, [Ind.], 24 N.E. 509; Eckles v. Kinney, 4 Iowa, 539;Berner v. Frazier, 8 Iowa, 77; Alleston v. Eldridge, [Iowa], 10 N.W. 252; McGovern v. Keokuk Lumber Co., [Iowa], 16 N.W. 106;Freleigh v. The State, 8 Mo. 606; State v. Shipman, [Mo.], 6 S.W. 97; Cantwell v. People, [Ill.], 28 N.E. 964; Perkins v.McDowell, [Wyo.], 19 P. 440; State v. Shaw, [Ohio], 1 N.E. 753.
In a recent case, it has been held in Ohio, under a similar statute to ours, that "the affidavits required by Revised Statute, § 550, asking for the designation of another judge to try a case on account of prejudice or bias, need not state facts upon which the claim of bias or prejudice is based, but it is sufficient that bias or prejudice is alleged." (State v.Wolfe. 11 Ohio Circuit Court Records, 591).
As to the duty and jurisdiction of the court after application for change is made see Watts v. White, 13 Cal. 321;O'Neil v. O'Neil, 54 Cal. 187; Estrada v. Orena, id. 407;Peyton v. Johnson, [Neb.], 56 N.W. 728; Herbert v. Beathard,26 Kan. 746; Paul v. Ziebell, [Neb.] 61 N.W. 630; 12 Am. Eng. Enc. Law, paragraph 8, page 52.
Where the statute provides the manner of showing the prescribed facts, no other, or counter, showing can be *Page 718 considered. Salinas v. Stillman, 25 Tex. 12, where it is held that "the statute does not seem to contemplate the production of counter affidavits or rebutting evidence. It provides that the court shall have power to change the venue 'on good and sufficient cause set forth and duly supported by oath or affirmation of three disinterested citizens of the republic, (now state), the sufficiency of which evidence shall be determined by the presiding judge,' and the court is to decide upon the legal sufficiency of the cause or causes set forth and the credibility of the witnesses required to be produced in support of the application. It is upon the 'sufficiency' of this evidence that the court is to determine."
A very able and interesting discussion of an analogous question is found in the 32,33 and 35 Federal Reporters, arising upon the construction of the following portion of the act of congress of March 3, 1887, to-wit:
"And where a suit is now pending, or may be hereafter brought, in any state court in which there is acontroversy between a citizen of the state in which the suit is brought and a citizen of another state, any defendant, being such citizen of another state, may remove such suit into the circuit court of the United States for the proper district at any time before the trial thereof, when it shall be made to appear to said circuit court that, from prejudice or local influence, he will not be able to obtain justice in such state court, or in any other state court to which the said defendant may, under the laws of the state, have the right, on account of such prejudice or local influence, to remove said cause: provided, that if it further appear that said suit can be fully and justly determined as to the other defendants in the state court without being affected by such prejudice or local influence, and that no party to the suit will be prejudiced by a separation of the parties, said circuit court may direct the suit to be remanded so far as *Page 719 relates to such other defendants to the state court to be proceeded with therein." (24 Stat. at Large, 552).
One of the principal questions involved in this discussion is whether the above portion of said act is an absolute repeal, or only amendatory, of the act of March 2, 1867, which provides that:
"When a suit is between a citizen of the state in which it is brought and a citizen of another state, it may be so removed on the petition of the latter, whether he be plaintiff or defendant, filed at any time before the trial or final hearing of the suit, if, before or at the time of the filing said petition, he makes and files in said court an affidavit stating that he has reason to believe and does believe that, from prejudice or local influence, he will not be able to obtain justice in the said state court." (14 Statutes at Large, 558).
The former statute was first construed by Judge Deady, inFisk v. Henarie, 32 Fed. 417, wherein he held that:
"The provision in § 2 of the act of 1887, (24, Statutes, 553), authorizing the court to examine into the truth of an affidavit for removal of a case from a state court, on account of prejudice or local influence, applies only to cases removed before the passage of said act, on the application of the plaintiff; and otherwise than this, such affidavit being not a matter of jurisdiction, but only a condition imposed of the party seeking the removal, it cannot be questioned or contradicted; nor is it necessary that the affiant should state the grounds of his belief."
It was next passed upon in Hills v. Richmond D. R. Co., 33 Fed 81, by Judge Newman, who reached the same conclusion as Judge Deady, and assigns, in part, the following reasons therefor:
"Now, is the language, 'shall be made to appear to said circuit court,' sufficient to indicate an intention to change the rule as it existed under the original act of removal, by affidavit of the party? Is it not, rather, a *Page 720 proper construction to hold that the two acts should be read and construed together, and that so read and construed, the law now is that it shall be made to appear to this court by the affidavit of the defendant that he has reason to believe, etc. — this affidavit to state, of course, in addition to what would have been necessary under the old act, 'that he will not be able to obtain justice in any other state court to which the defendant, under the laws of such state, had the right, on account of such prejudice or local influence, to remove said case.' It seems to me that the latter view is the only one that can be adopted, if proper construction be given to all the legislation, as it now stands, on this subject. Again, the express provision in the act of March 3, 1887, as to the duty of this court to examine into the sufficiency of the grounds for removal, in the case of a plaintiff removing his case here, and the absence of any such provision as to a defendant so removing, seems to be significant of the fact that the law as it formerly existed is not changed as to defendants."
Subsequently, and in Short v. Chicago, M. St. P. Ry., 33 Fed. 114, Judge Brewer, in construing said act, reaches a different conclusion, holding that: "It is obvious that the legislation of 1887 with respect to prejudice and local influence was intended to supercede entirely the act of 1867, and to plant the matter upon a new basis, and planting it upon a new basis, to let the act of 1887 take the place of that of 1867," and, in discussing the sufficiency of the affidavit in that case, says:
"In other words, before a removal can be had on the ground of prejudice or local influence, there must be shown to the circuit court of the United States the existence of such prejudice or local influence. It is not given to the party upon his conscience to say he believes, or has reason to believe, that such prejudice exists, and thereby become entitled to a removal; but there is a question of fact which the circuit court must determine, *Page 721 and it cannot order the removal until it appears that such prejudice or local influence exists. Now, how can that fact be made to appear? How can any fact be made to appear? Either by oral testimony or affidavits. The affidavits in this case do not allege the fact. Counsel for plaintiff insists that an affidavit, in form, simply saying that there does exist prejudice or local influence so as to prevent a fair trial, is not sufficient; that that is a fact which cannot be testified to in a general way; that the affidavit must show a series of isolated and separate facts, from which, taken together, the court can see that such local prejudice does exist. In that proposition I am inclined to hold against him, so far as the first showing is made. It is not, however, necessary positively to decide that question now. If the question were presented, Ishould be inclined to hold that an affidavit, alleging in plainand unequivocal terms that such local prejudice does exist, andthat a fair trial cannot be had, would entitle the party to aremoval. I think, however, that that fact, like any other fact, may be challenged. After the affidavit has been presented, and a removal ordered, the party opposing it may come in and traverse that allegation of prejudice, the same as any other averment of fact. * * * All that is required is that it shall be made to appear to the circuit court that from prejudice or local influence, the party will not be able to obtain justice in said court. This showing may be made by affidavit; and if this constitutes a specific averment, while it may not be conclusive, it is prima facie evidence of the fact, and throws the case into this court, leaving the other party to challenge its truth. There being no form, no procedure prescribed, Ithink the court in any particular case may prescribe a mode ofprocedure, or might lay down a general rule applicable to allcases."
Apply the reasoning of the learned and distinguished jurist in the case last cited to the question involved in the case at bar and it must be held that the trial court erred in refusing the change of judge. This would be *Page 722 so even if our statute did not specifically provide the form of procedure to be pursued in procuring such change. The affidavit in this case was direct and positive. No counter showing was made and, in fact, none could have been made under the statute. It will never do to hold that trial courts can deny such applications upon personal knowledge or information which need not be stated in the record, for, by so doing, said courts would be given absolutely unlimited discretion in the matter, and one which, under the law, cannot be reviewed by this court. And, if such interpretation is given the statute, the trial courts can, upon their personal knowledge, which need not be disclosed, as easily deny such applications, when the particular facts, whereon the conclusions of bias and prejudice are based, are stated therein, as, when the conclusions only are so stated. (Witter v. Taylor, 7 Ind. 110).
In County Court v. Baltimore O. R. Co., 35 Fed. 161, Judge Jackson seems to take about the same position as to the construction to be given this portion of the act of March 3, 1887, as that occupied by Judge Brewer in Short v. Chicago etal., supra. Upon a rehearing of Fisk v. Henarie, 35 Fed. 230, Judge Deady adheres to his former opinion in said case, supra, saying: "I conclude, then, that the fact of prejudice and local influence is 'made to appear' to the circuit court whenever it does so appear from the affidavit of the party causing the removal, and that it does so appear whenever such party states on oath that it is so, or that he believes it to be so."
In Malone v. Richmond D. R. Co., 35 Fed. 625, Mr. Justice Harlan holds that, the prejudice and local influence clause of the act of 1887, absolutely repeals that of 1867, and, "That it is the duty of the circuit court to examine into the truth of the facts alleged to support the *Page 723 grounds for removal, and to ascertain their existence. The simple affidavit by the defendant, stating, in general terms, the existence of such prejudice, and its effect, in the language of the statute, no opportunity having been given the plaintiff, by notice, to controvert such statement, ought not to be accepted as sufficient evidence of the fact.
This case comes nearer supporting the position taken by the trial court in the case at bar than any other federal decision which I have been able to find, but, it should be remembered that the statute construed by Justice Harlan, as interpreted by him, is quite different from ours in that it does not prescribe the particular mode in which this showing is to be made. The same may be said of the Kansas cases cited by counsel for appellee. (City of Emporia v. Volmer, 12 Kan. 475). The other decisions cited by counsel for the government are based upon statutes similar to that now existing in Kansas, or such as expressly provide that the court shall exercise a discretion in passing upon the application, like the present statute in the criminal code of the state of Iowa, which requires that, "The court, in the exercise of a sound discretion, must decide the matter of the petition, when fully advised, according to the very right of it." (Sec. 4374, McLain's An. Stat. 1880).
But, in construing a section of the civil code of that state, which provides that "change of the place of trial may be had" when the defendant files an affidavit, supported by three disinterested persons, stating certain facts, (see Jones v. C. N. R. R. Co., 36 Iowa, 68), it is held that the duty of the court to grant the change is mandatory upon the filing and presenting of the statutory affidavit within proper time. *Page 724
Under such a statute, however, as that quoted from the Iowa criminal code, all courts hold that the showing must be such as to reasonably satisfy the trial court of the truth of the application. (State v. Chapman, [S.D.], 47 N.W. 411).
Our statute is not, of course, in the identical language of any of those hereinbefore designated as similar thereto, but it is, in effect, the same as all of those, which have been held to be mandatory, in the following essential particulars: First, it prescribes the particular manner in which the showing must be made and, thereby, prohibits any different, or counter, showing. Second, it does not require that said showing be such as will satisfy the trial court of the truthfulness thereof, nor does it provide that said court can exercise any discretion whatever in the matter, except to see that the affidavit complies with the requirements of said statute.
In many of the statutes, upon which the decisions, herein cited, are based, the provision is that the courts "may," upon the filing of certain affidavits, grant the change. This wordmay has invariably been construed to mean must, and said statutes held to be mandatory. Following is the section of the Indiana civil code providing for changes of venue:
"The court in term, or the judge in vacation, shall change the venue of any civil action upon the application of either party, made upon affidavit showing one or more of the following causes:
"First. That the judge has been engaged as counsel in the cause prior to his election or appointment as judge, or is otherwise interested in the cause.
"Second. That the judge is of kin to either party.
"Third. That the opposite party has an undue influence over the citizens of the county, or that an odium *Page 725 attaches to the applicant, or to his cause of action or defense, on account of local prejudice.
"Fourth. When the county is a party to the suit.
"Fifth. Showing to the satisfaction of the court that the convenience of witnesses and the ends of justice would be promoted by the change.
"Sixth. That the judge of the court wherein such action is pending, is a material witness for the party applying for such change.
"Seventh. When either party shall make and file an affidavit of the bias, prejudice or interest of the judge before whom the said cause is pending." (Annotated Ind. Code, § 412).
It will be readily observed that the Indiana statute, in so far as the first, second, third and sixth grounds are concerned, is in language no more mandatory than the first and fourth paragraphs of ours. There can not possibly be any material difference in the meaning of the terms "affidavit showing" and "shown by affidavit." The supreme court of the state of Indiana has uniformly held that, when and application substantially in the language of the statute, based upon either of the grounds last enumerated, is presented to the trial court, the change must be granted regardless of said court's opinion as to the propriety of such action. (Leyner v. TheState, 8 Ind. 490; Shaw v. Hamilton, 10 Ind. 182; Goldsby v.The State, 18 Ind. 147; Fisk v. The Patriot, etc., TurnpikeCo., 54 Ind. 479; Krutz v. Griffith, 68 Ind. 444; Krutz v.Howard, 70 Ind. 174; Smelzer v. Lockhart, 97 Ind. 315).
When the application, under the Indiana statute, is based upon the ground that the judge is interested in the cause, or related to one of the parties, it is, of course, necessary to state the facts showing same; but not so when the application is based upon any of the other *Page 726 grounds. See Cory v. Silcox, 5 Ind. 370, wherein the court, among other things, says: "The cause set forth in the petition in the record, is 'on account of local prejudices,' but the counsel of the appellants contend that 'this is not sufficient as it does not state the cause or causes why such prejudices are entertained.' We think this position is requiring too much. To give the causes of such prejudices might require the history of the applicant's life, and the statement of matters wholly foreign to the cause. It is enough for a party to believe that he can not have a fair trial on account of the prejudices of those who try him; that is a cause within the meaning of the second section, and to require the applicant to state why suchprejudices exist would be requiring the cause of a cause."
As to approved forms of the affidavits required under the statute of that state see Work's Practice and Pleading, vol. 3, pp. 540, 541.
The same reasoning employed in Cory v. Silcox, supra, to show the absurdity of requiring the facts to be stated in an application for a change of venue from the people, "on account of local prejudice," applies with equal force where the application is based upon "the bias and prejudice of the presiding judge." In truth, in many cases, it may be practically impossible for a party to state sufficient facts to establish such prejudice and bias, although the same may actually exist. A person may well know that another is prejudiced against him by reason of many things which have transpired during their business, social or other relations, and yet it may be wholly impracticable to so present these circumstances, in an affidavit, as to show the existence of such prejudice. But, whether or not the statute in question is a desirable or proper one, is not a matter for consideration by this *Page 727 court but one exclusively for the legislature. The more candid and impartial appellate courts are in declaring the law as it actually exists, regardless of consequences, the better for all concerned.
Counsel for appellee insist that the court may take into consideration his own personal knowledge in passing upon the application, and, in support of this contention, claim that, if the statute is mandatory when the change of judge is sought on account of the bias and prejudice of the judge, it is also mandatory when the ground for such change is "that the judge has been of counsel in the cause, or is of kin to either party to the action," and then say: "Could it be possible, that if the prisoner files an affidavit on the eve of trial, that the presiding judge was of counsel in the case, or was kin to one of the parties, that he is entitled to a change of judge and continuance, although the judge may know that the affidavit is rank perjury?" While I have already noticed this phase of the question, its importance, perhaps, demands further attention and I cannot do better than to quote the following portions of the reasoning of the supreme court of Indiana, in Witter v.Taylor, supra, where the very question suggested by counsel is passed upon, to-wit:
"Witter, one of the defendants, filed an affidavit to the effect that Judge Egbert, before whom the action was pending in the common pleas, had been engaged as counsel for the plaintiff in the cause as law partner of W. G. George, the plaintiff's attorney of record. * * Applications for change of venue, in civil cases, are not addressed to the discretion of the court. * * If the affidavit is in substantial conformity to the statute, the change must be granted. The statute is explicit. The 'may' as there used, is clearly imperative and not discretionary.
"The article on change of venue in civil cases, so far *Page 728 as it is applicable to the question before us, reads: 'Section 207. The court, in term, or the judge, in vacation, may change the venue of any civil action, upon the application of either party, made upon affidavit, showing one or more of the following causes, viz: First: That the judge has been engaged as counsel in the cause, prior to his election or appointment as judge, or is otherwise interested in the cause.'
" The basis on which to move for a change is the affidavit ofthe party. On that, and that alone, the court must act. If any one of the statutory requirements is complied with the duty of the court is imperative. Something is said about the personal knowledge of the court. But the position is wholly unsound.Even the judge, in this instance, knew every word of theaffidavit to be false, that is nothing to the purpose. He isnot to establish a vicious principle even to accomplish adesired end. His personal knowledge is like that of a juror who has not been sworn to testify, to his fellow jurors. The judge is not at liberty to predicate any judicial action upon it. Therights of parties do not depend upon his private knowledge.They are to be determined solely by what is judicially adducedin due course of law. This office in applications for change of venue, the affidavit alone can perform. If the party commitsperjury in the affidavit he subjects himself to theconsequences. He takes his change at his peril."
The only decisions that the writer has been able to find which hold that a statute like ours is not mandatory, areGerman Ins. Co. v. Landram, [Ky.], 11 S.W. 367, and Small v.Reeves, [Ky.], 37 S.W. 682; but, see Vance v. Field, [Ky.], 12 S.W. 190.
For the reasons stated I am of the opinion that the judgment of the district court should be reversed, a new trial ordered and the cause remanded for further proceedings in accordance with law. *Page 729