This is a proceeding under the Statute concerning Forcible Entry and Unlawful Detainer to recover possession of certain premises known as the State prison, with damages for the detention.
The facts, as disclosed by the record, are as follow: In 1856, Jas. M. Estill was in possession of the premises, under a lease from R. M. Anderson, Henry Bates and G. W. Whitman, styling themselves “ State Prison Commissioners after retaining possession for about one year, Estill assigned the lease and delivered the possession of the premises to plaintiff, who remained in possession by himself and his agents and employes until the first of March, 1858, when the alleged forcible entry was made.
At the time of this entry, plaintiff himself was not upon the premises, but the same was in charge of his agent Sims. Defendant, accompanied by several others, entered a building connected with the prison, and informed Sims that he was the Governor of the State, and had come with the intention to take possession of the premises, pursuant to an Act of the Legislature passed a few days previous. Upon the *523refusal of Sims to yield the possession, defendant called upon a person present, informed him that he was appointed Warden of the prison, and then demanded the keys. Sims said that the keys were locked up in an adjoining room, and refused to deliver them. The door of the room was immediately forced by order of defendant, and the keys taken.
A judgment was rendered by the Court below in favor of plaintiff for a restitution of the premises, with damages, and defendant appeals.
The errors assigned are: ' 1st. The refusal of the Court to change the place of trial; and, 2d. The refusal to grant a new trial.
The application for a change of venue was made upon affidavits setting up that defendants could not have a fair and impartial trial in the Court below, on account of the bias of the presiding Judge of the County Court, who was charged with having been present, consulting and advising with the agent and counsel of plaintiff during the trial before the Justice; and having, during the progress of such trial, expressed himself so strongly in favor of plaintiff’s right to recover, as to occasion remonstrance from bystanders upon the impropriety of such conduct on the part of a judicial officer.
The statute authorizes a change of venue “ when, from any cause, the Judge is disqualified from acting.” The things which disqualify a Judge are specified in section 87 of the Act “ concerning the Courts and Judicial officers,” Wood’s Digest, p. 157; 1st. When he is a party to, or interested in the action. 2d. When he is related to either party within the third degree; and, 3d. When he has been attorney or counsel for either party.
These are the only causes which work a disqualification of a judicial officer. The exhibition by a Judge of partisan feeling, or the unnecessary expression of an opinion upon the justice or merits of a controversy, though exceedingly indecorous, improper and reprehensible, as calculated to throw suspicion upon the judgments of the Court and bring the administration of justice into contempt, are not, under our statute, sufficient to authorize a change of venue on the ground that the Judge is disqualified from setting. The law establishes a different rule for determining the qualification of Judges from that applied to jurors. The reason of this distinction is obvious. The province of the jury is, to determine from the evidence the issues of fact *524presented by the parties; and their decision is final in all cases where there is a conflict of testimony. Therefore, the expression of an unqualified opinion on the merits of the controversy, which evinces such a form of mind as renders him less capable to weigh the evidence with entire impartiality, is sufficient to exclude a juror.
The province of a Judge is to decide such questions of law as may arise in the progress of the trial. His decisions upon these points áre not final; and, if erroneous, the party has his remedy by bill of exceptions and appeal.
If forming or expressing an opinion upon the merits of the controversy was sufficient to disqualify a Judge, it would be necessary that the venue of a cause should be changed', after a mis-trial or the granting of a new trial; for, after hearing the evidence and argument of counsel upon a mis-trial, the Judge would, of course, have formed an opinion upon the mesits of the controversy; and the fact of granting a new trial is often equivalent to the expression of -such opinion.
The refusal to change the venue is no sufficient ground for reversing the judgment.
Under the second assignment of error, appellants seek to raise a question as to the validity of the lease to Estill, and the assignment of such lease to plaintiff. These points do not arise in the case under consideration, nor can they be considered or determined in this form of action.
The action of forcible entry and detainer is a summary proceeding to recover possession of premises forcibly or unlawfully detained. The inquiry in such cases is confined to the actual peaceable possession of the plaintiff and the unlawful or forcible ouster or detention by defendant—the object of the law being to prevent the disturbance of the public peace, by the forcible assertion of a private right. Questions of title or right of possession cannot arise; a forcible entry upon the actual possession of plaintiff being proven, he would be entitled to restitution, though the fee simple, title and present right of possession are shown to be in the defendant. The authorities on this point are numerous and uniform. We have, therefore, declined to consider the objections which are taken in the briefs of counsel to the validity of the lease and assignment.
*525The remaining points are:
First. “ That, admitting the contract to be valid, the State had, at any time, a right to rescind, violate or annul it without the assent of the lessee or his assignees.”
Second. “ That the title of the premises being in the State, she had the right to take the same for public purposes, by providing just compensation therefor; and that such compensation was provided.”
Upon the first point, the only authority cited is part of a paragraph taken from the opinion of one of the former Judges of this Court upon an entirely different state of facts; and which, when taken in connection with the context, is not at all applicable to the case under consideration.
Upon the second point, numerous authorities, both English and American, are cited, none of which, as we conceive, are directly applicable to the case under consideration. The English authorities show that an action of ejectment will not lie at the suit of the King; for the reason that the Sovereign cannot be disseized: but it does not follow that he may therefore expel by force a party in possession of lands belonging to the Crown; there are other remedies to which he may have recourse.
“ If a man intrude upon the King’s lands, an information for intrusion lies in the name of the Attorney General.” (Comyn’s Dig. Barogatine, D. 74, S. Bacon’s Abr. 101) by which proceeding the intruder and all claiming under him could be ousted and enjoined from further interfering with the possession;
The fact that such a remedy is provided to enable the King to recover lands held by a mere intruder, would seem to imply that the right to seize forcibly without legal process, did not exist at common law. In the State v. Arledge and Gaither, 1 Bailey South Carolina Rep. 562, quoted by appellants, the Court held that the State could not maintain the action of ejectment. Mr. Justice Johnson says: “It is very clear that in England the King cannot maintain an ejectment to recover lands; and the reason given by Blackstone is, that, on account of his legal ubiquity, he cannot be disseized or dispossessed. All the elementary writers hold the same doctrine; and it is even more strikingly applicable, where the sovereign power and right are *526in the hands of the people themselves, who want that personal identity on which a disseizure could operate; and for the further reason, that a part of it abides in the defendants themselves.” But the Court did not hold that the State could, by its officers, resume possession without process ; on the contrary, it was held that the remedy was by information for intrusion.
It is undoubtedly the practice of the United States Government to remove intruders upon the public lands without legal process; this proceeding is authorized by Act of Congress of March, 1807, the validity of which Act is sustained by the opinions of various Attorney Generals of the United States. The provisions of this Act, however, and the principles announced in the opinions referred to, apply only to intruders or trespassers on the public domain without claim or right, and have in no case been extended to a bona fide possession under color of title. On the contrary, it has been expressly held not to apply to such cases. Public Lands, Laws, Instructions, and Opinions, vol. 2, page 166.
Chief Justice Taney, while Attorney General, asserted the power of the United States, under the Act of 1807, to expel intruders from lands ceded by the Creek Indians, on the ground that the parties were mere wrongdoers, “ who, without any pretense of title, and in open violation of the rights of the United States, intrude upon the public property and appropriate it to their own useand that “ the United States had never abandoned their possession, and the intruders had never acquired a lawful possession against them,” but were mere naked trespassers upon the public domain. See Public Lands, Laws, etc., vol. 2, p. 181,
There is a vast difference between the case of a mere wrongdoer, and one who enters by the license and consent of the Government.
In the present case, it appears that plaintiff and his assignor had been in the actual peaceable possession of the premises for a period of nearly two years, under color of title purporting to be derived from the State. The legality of his possession, and the validity of the contract under which he held, had been recognized by the successive Legislatures, as appears by the Acts of 1856 and 1857, by which appropriations were made pursuant to the terms of the contract, and *527by the journals of the Legislature. Plaintiff can, then, in no sense be considered as an intruder, without claim or pretense of title; and the reasoning of the authorities, cited from the opinions of the Attorney General of the United States, does not apply to the facts of this case. The possession of plaintiff having been acquired by the consent of the Legislature, and been recognized by it as legal, could only be legally divested by the judgment or decree of a competent Court.
It is said that the State cannot commit a forcible entry. This position will not, I presume, be controverted; but the defendant is not the State; and certainly there is no reason why a public officer, who acts without authority, or under a void authority, or who transcends the authority conferred by law, should not be held to strict accountability for such act.
The objection that the entry complained of was not forcible, is entirely unsupported by the facts disclosed by the record. Several men go to an outer building, occupied by the agent of plaintiff, and in which were the keys of the premises, against the will, and notwithstanding the protest of this agent; an inner door is forced and the keys taken, with which an entry into the main building is effected. The acts of the parties warranted no other conclusion than that any attempt on the part of the plaintiff to resume possession would be resisted by force.
“ To constitute forcible entry and detainer, it is not necessary that violence and outrage upon the prison and property should in fact be resorted to. If the actual possession of another in a house or tenement be taken and held under circumstances which show that it will not be surrendered without a breach of peace on the one side or the other, this constitutes a ease of forcible entry and detainer.” Childers v. Black, 9 Yerg. 317 ; 1 Seam. 407.
The statute was intended to prevent bloodshed, violence and breaches of the peace, too likely to result from wrongful entries into the possession of others; and it would be absurd to say, that to enable a party to avail himself of its provisions, there must have occurred precisely the evil which it was the object of the law to prevent. The power of the Legislature to absolutely control the custody and disposition of the State prisoners, and to enter upon the premises for the purpose of *528removing such persons, does not arise in this case, and we are not disposed to question its authority to do so.
The simple question involved in the record is, whether premises, which were in the peaceable and actual possession of plaintiff, were forcibly and unlawfully entered and detained.
The last point is, that, “ admitting these premises to be the private property of plaintiff, still the State had the constitutional power to take it for public purposes, by providing just compensation therefor ; and it is immaterial whether the compensation was provided in the Act directing the seizure of the property, or by subsequent Act.”
The first proposition is entirely true, but the Act under which defendant justified his entry, made no sort of provision for any compensation whatever, and was clearly in violation of the eighth section of article one of the Constitution. For the second proposition, we can find no authority ; and we are unable to see how an illegal entry on the first of March can be affected by the passage of an Act some two months thereafter.
It is well settled, and upon this point there is no conflict of authority, that when private property is taken for public use, the means of compensating the owner must be provided before the property can be taken. Smith Com., 473, et seq.; San Francisco v. Scott, 4 Cal. 114; McCann v. Sierra Co., 7 Cal. 121.
The judgment of the Court below is affirmed.