Clearly, this matter should be reversed. We do not deal with personalities, we deal with the law.
In this matter a member of the Utah Bar sat as a judge pro tempore in the Salt Lake City Court. At the trial an objection was made to the person sitting as the judge on the ground he was not a resident of Salt Lake City. This objection was overruled, the trial proceeded to the conclusion, the trial defendant was convicted.
Thereon the trial defendant appealed to the district court, where the same objection was made and overruled. The trial proceeded to its conclusion and defendant was again convicted.
The trial defendant makes the claim that the district court lacked jurisdiction for the reason there was no judgment before the court, because whatever occurred in the court below was a legal nullity.
Trial defendant's claim should be sustained, and the relief prayed granted.
78-4-11 requires that a judge pro tempore in the city court shall possess "all the qualifications required of the city judge. . . ."
78-4-10 is as follows:
Residence — Place of holding court. — Every judge of a city court shall reside in and hold court in the city for which he is elected, and the city commissioners or city councils of such cities shall provide suitable rooms for holding the city court, together with attendants, furniture, lights and stationery sufficient for the transaction of business, the expenses of which shall be paid out of the general funds of the city treasurer.
78-4-8 is as follows:
Qualifications. — No person shall be eligible to the office of judge of the city court who at the time of his election is not a qualified elector and a bona fide resident of the city for which he may not be elected, nor shall any person be eligible to said office who has not been admitted *Page 16 to practice in, and is not in good standing in, the Supreme Court.
From the foregoing we see a city judge pro tempore not only must be a resident of the city, but must be an elector as well.
One can always challenge the authority of a substitute judge.1 In McCrillis the court applied the following rule set forth in Clements v. Fort Worth and D.S.P. Ry. Co.:2
The rule is that a judgment rendered by a special judge who had not been appointed or selected in accordance with the constitutional and statutory requirements governing such matters is an absolute nullity, and that before a special judge can be appointed or selected, the conditions pointed out by the Constitution and the statute must exist before such selection or appointment of the special judge is valid.
Defendant further asserts two of the jurors were not competent to so act for reason they were not residents of Salt Lake City. Admittedly, they were not residents of the City. This claim is sound and certainly should be sustained.
Section 78-46-8 provides:
A person shall be competent to act as a juror:
* * * * * *
(3) Who resides in and has resided in the county for six months next preceding the time he is selected; provided, that the residence required to render a person competent to serve as a juror in a city or justices' court or on an inquest shall be residence in the city or precinct for six months next preceding the time actually called to serve; . . . . [Emphasis added.]
The emphasized portion of the aforecited statute was repealed by the legislature in 1977 (Session Laws, Chapt. 77, § 71, p. 389.) However, this repeal does not take effect until July 1, 1978, Chapt. 77, § 78, p. 391.
Defense counsel asserted a timely objection to the jury panel on the ground two jurors were non-residents of the city and were therefore incompetent.3
Should it once be conceded that one incompetent or disqualified juror, when the question is properly and timely raised, did not affect the sanctity and legal soundness of a tribunal made up as a court and jury is, there would be no stopping place. . . . The jury must be one possessing the legal qualifications. [Citation.]4
Since a jury must be composed of persons who possess the qualifications mandated by the statutes, §§ 78-46-8, 9, the proceeding was vitiated by the failure to have the issues passed on by a properly and legally constituted tribunal.
WILKINS, J., concurs in the views expressed in the dissenting opinion of MAUGHAN, J.