Concurring in Part and Dissenting in Part. — I cannot concur in the conclusion reached by my associates that the order refusing to grant a change of venue should be reversed. In my view of the case the constitution and statute furnish ample protection to the litigant who believes he cannot 'have a fair and impartial trial by reason of the bias and prejudice of the presiding judge. It seems useless to say that the whole theory of the law is that no judge or juror should be permitted to sit in judgment wherein he may entertain bias or prejudice against any litigant, either civil or criminal; and. it would indeed be an unusual condition if the litigant was without a remedy in the trial courts where it is shown that by reason of the bias and prejudice of the presiding judge he could not have a fair and impartial trial. This theory of the law has been handed down to us from our earliest law-writers, and is founded on the principle that all are equal before the law. I think the framers of our constitution solved the problem *571that had led to much expensive and unsatisfactory litigation growing out of the question of a change of venue based on the bias or prejudice of the judge by the enactment of section 12, article 5 of our constitution. It reads: “Every judge of the district shall reside in the district for which he is elected. A judge of any district court may hold a district court in any county at the request of the judge of the district court thereof, and upon the request of the governor, it shall be his duty to do so; but a cause in the district court may be tried by a judge pro tempore, who must be a member of the bar, agreed upon in writing by the parties litigant, or their attorneys of record, and sworn to try the cause.” It will be observed by this wise provision of our constitution that litigants are provided with two remedies to avoid the expense and delay of changing the venue on account of the bias and prejudice of the presiding judge. It is well known to all lawyers and to litigants who have had the experience of following a case from one county to another for trial that such changes are fraught with many difficulties, and carry with them a large bill of expense that can be avoided by a trial in the county where the parties litigant and their witnesses usually reside. I think it wus to overcome this difficulty and expense that prompted the enactment of the above provision of our constitution. It has been the usual practice of our district courts since the adoption of our constitution to follow section 12, article 5, where it was apparent that the presiding judge was for any reason disqualified to preside at the hearing of any term or trial. It is not enough to say that the judge might decline to call another district judge, in case an effort were made to disqualify him; the provision is that, upon the request of the governor, it is the duty of any district judge to hold a term of court in another district in the state, and if the disqualified judge, or the judge called upon by the governor, declines to obey the provisions of the constitution, I am satisfied that upon a proper showing this court would make the necessary order for the enforcement of the request or order of the governor.
*572It is shown in this case that the application was for a change of venue and not a request for the presiding judge to call in another district judge of the state to hold a term for him, nor a request for the selection of some member of the bar possessing the necessary qualifications to try and determine the case, either of which, under the provisions of section Í2, article 5 of the constitution could have been done. For the reason that no such request or application was made, I think the order of the lower court refusing to change the venue should be sustained.
In my view it is unnecessary for me to pass upon the merits of the application. If it were one to call in another judge pro tempore, it would present a different situation. I should think the learned trial judge would hesitate to try a case of the importance and magnitude of the one at bar, where the plaintiff and all of her attorneys file affidavits stating that owing to his bias and prejudice a fair trial could not be had in his court, even though in his own mind and heart he is satisfied that such charge is without foundation in fact.