dissenting.
*21The application for a change of venue or to require the Hon. Granby Hillyer to request another judge to preside at the trial is based entirely upon the alleged prejudice of Judge Hillyer. The affidavits supporting the application are purely ex parte, and are the most unsatisfactory evidence with which the courts have to deal, when, as stated in the majority opinion, the statute inhibits counter affidavits being filed. The right of a defendant in a criminal action to a change of venue, or to require the judge of the court in which the action is pending to designate another judge to try the cause, on account of his prejudice, is statutory. The change contemplated by the statute causes delay and expense. The right thus conferred for alleged prejudice of the judge is so liable to abuse as to require a rigid construction of the provisions of the statute, and it is only when the necessities of justice demand it that a change should be made. Otherwise a great wrong is perpetrated upon the public. This court, therefore, in Young v. The People, 52 Colo. 293, 130 Pac. 1011, has ruled that the affidavits supporting the application must state facts showing the prejudice of the judge, and that such facts must be sufficient in law to require the change.
The province of the judge at a trial of a criminal action is limited to an interpretation of the law. The jury determines the facts. If the judge errs in the admission or rejection of testimony, or in giving or refusing instructions, his rulings in these respects can be reviewed by this court. The constitution requires him to take an oath to support the federal and state constitutions, and to faithfully discharge the duties of his office, hence it follows that the facts upon which the application is predicated must be so direct, positive, and unequivocal as to clearly show such prejudice as will prevent him from giving the defendant a fair and impartial trial. State v. Chapman, 1 S. D. 414, 47 N. W. 411, 10 L. R. A. 432.
The statute provides, so far as necessary to con*22sider, that a judge shall be deemed incompetent to hear or try á criminal cause when he is any wise prejudiced. As thus employed, what does prejudice mean, or in what circumstances is a judge rendered incompetent to hear or try a criminal action because he is “anywise prejudiced?” An individual may be said to be prejudiced as the result of political affiliations, or religious belief, or on' account of nationality or race, or from what he has read or heard regarding a transaction. In short, innumerable reasons might be assigned why he was prejudiced, and in this sense the word has many varied significations. Clearly the General Assembly never intended to give the term such an unrestricted meaning as would lead to absurd results by permitting a defendant to secure a change of judge or venue for any reason based upon alleged prejudice, except a substantial one. In other words, it is not the purpose of the statute that any prejudice, however trivial or unimportant, should operate to disqualify a judge, or render it improper that he should preside in a case. And so we find that in other jurisdictions statutes which provide in general and unrestricted terms for the disqualication of a judge for prejudice, the term, by the great weight of authority, has been construed to mean personal prejudice against the defendant. 23 Cyc. 585; Conn v. Chadwick, 17 Fla. 428; Turner v. Commonwealth, 2 Met. (Ky.) 619; Western Bank v. Tollman, 15 Wis. 92; State v. Parmenter, 70 Kan. 513, 79 Pac. 123; State v. Johnson, 104 N. C. 780, 10 S. E. 257.
Analyzing the affidavit of the defendants, we find it is stated therein that it is not the intention to challenge the honesty or intentions of Judge Hillyer, but that he is so prejudiced against the defendants that it will be and is impossible for him to act fairly and impartially. This statement is a concession that Judge Hillyer has no intention to deal with the defendants in his official capacity otherwise than fair, and in the face of this admission it ought to be *23very clear from the facts stated he has such a personal prejudice against them that he will unconsciously be unable to preside at their trial in a fair and impartial manner. The affidavit then recites a history of the strike; incidents connected therewith; that the defendants were aligned with the miners engaged in the strike; that they are members of the organization known as the United Mine Workers of America, and that conflicts between strikers and those engaged by the coal companies to aid in breaking the strike, occurred. There is no statement that defendants engaged in any of these conflicts, or that Judge Hillyer took any part in the physical encounters mentioned. Certainly these statements do not indicate any personal prejudice on the part of the judge against the defendants. It is then stated that the charge against the defendants is for a crime alleged to have grown out of the strike, which cause, among others, was instigated by the coal companies, who employed attorneys and detectives who instituted and caused to be instituted such causes, and to prosecute the same; that there has been intense feeling and prejudice against the defendants on account of the offense with which they are charged; that reports have been published and circulated charging the defendants with that offense; that Judge Hillyer has heard and read these reports and has believed they were true, and that defendants are guilty, and, therefore, became, and ever since has been so deeply prejudiced against defendants that he is unable to give any defendant in a strike case a fair and impartial trial or a fair and impartial hearing. The companies had the right to take the steps they aré charged wtih having taken if they had cause to believe that the parties charged with offenses were guilty. There is no. intimation that they are not acting in good faith, but the mere fact that these companies may have caused such prosecutions to be instituted, whatever may have been their motives, does not in any manner disqualify Judge Hillyer. That feeling *24and prejudice exists against defendants as the result of the offense with which they stand charged, or that reports regarding it have been published, are conclusions of affiants. The contents of such reports are not set out. But aside from this the assertion that Judge Hillyer, by reason of such reports, believes the defendants guilty is not supported by the statement of a single fact upon which to base it. Besides it has been ruled that the opinion of a trial judge that a defendant is guilty does not constitute prejudice under the statute. State v. Morrison, 67 Kan. 144, 72 Pac. 554; Ingles v. McMillian, Judge, 5 Okla. Crim. 130, 113 Pac. 998, 45 L. R. A. (N. S.) 511, is a well considered case on the subject. The judge had heard an application of the defendant, who was charged with murder, to be admitted to- bail, which was denied. The judge heard the testimony touching the guilt of defendant, and it was claimed that, having denied bail, he necessarily concluded the defendant guilty, and was therefore prejudiced and disqualified to try the case. In addition it was stated in the affidavit the judge had said, after hearing the testimony, that the defendant .was guilty of a cold blooded murder. The court ruled that prejudice, in so far as it relates to the judge who presides at the trial, does not include his opinion as to the guilt of the defendant. To the same effect is State v. Lockridge, 6. Okla. Crim. 216, 118 Pac. 152, 45 L. R. A. (N. S.) 525, Ann. Cas. 1910, 251. In each of these cases the reason given why the opinion of the judge regarding the guilt of the defendant does not constitute prejudice, within the meaning of the law, is that he does not try the facts, but simply passes upon the questions of law presented.
The affidavit then continues to the effect that Judge Hillyer is a strong and outspoken partisan in favor of the coal companies, and has repeatedly declared and stated that the striking miners were outlaws and should be denied the benefit of habeas corpus when arrested, and held incom*25municado by the militia, and again states it would be impossible for him to sit with calm and impartial judgment at their trial, and that he has a deep and lasting prejudice against the United Mine Workers of America. When facts are presented on oath in support of an application for a change of judge or venue based on the prejudice of the judge, they should be stated in a manner so direct, positive and unequivocal that If they are untrue the affiant may be held accountable for swearing falsely. Conn v. Chadwick, supra. The statements under consideration lack these essentials. That Judge Hillyer is a partisan of the coal companies is but the conclusion of the affiants. When, and where, or to whom he made statements attributed to him that the striking miners were outlaws, and should be denied the benefit of habeas corpus when arrested by the militia are not stated. If these statements are untrue it is manifest they are so indefinite as to time, place and the persons to whom they were made, that a charge of perjury could not be predicated thereon, and for this reason should be wholly disregarded, so that the averment to the effect that it is impossible for the judge to preside with calm and impartial judgment, as well as the statement that he entertains a deep and lasting prejudice against the United Mine Workers of America, are but conclusions of the affiants and not based upon facts as the law requires.
The affidavit then reiterates that the coal companies have waged a war against the striking miners in the courts by employing attorneys and detectives to prosecute and testify against them, and charge them with crimes. It also states that such attorneys and detectives have been employed to defend armed men imported by them, who were in turn charged with crimes; that pursuant to this plan the coal companies have had arrested and charged with crime many hundreds of striking miners, including the defendants, which causes are now pending in the courts; that in these *26prosecutions the companies are furnishing counsel and detectives ; that they now have on their staff a great number of attorneys, naming them, actually engaged in the work of attempting to convict the strikers; that among the attorneys •employed from time to time in the legal warfare was Judge Hillyer, recently appointed judge; that on behalf of the coal companies he appeared in court in four criminal cases against strikers, and in that capacity made an argument in those cases; that he also spent a great deal of time in the County of Prowers as the paid attorney of the companies to secure affidavits to .be used in such causes, and that his employment for these purposes was solely through the chief counsel of the companies. We must assume that the employment of Judge Hillyer, and his participation in the cases, occurred before he was appointed judge of the third district. It is not charged that he was employed by the coal companies in the case against affiants, or that he ever took any part therein. The titles of the cases in which it is alleged he was employed and made arguments are not given. The date he was employed is not stated. Neither is there any statement regarding the character - of the affidavits it is said he secured. All that can be deduced is that at some time and place Judge Hillyer was employed by the coal companies to assist in the prosecution of cases against striking miners, not these affiants, and because his former clients are interested in the prosecution of the affiants, he is therefore so prejudiced against them as to disqualify him from presiding at their trial. Such a deduction cannot be fairly made. The coal companies are not parties. They may be interested in the prosecution of the defendants. The cases may be similar to those in which Judge Hillyer was employed, but this does not in law indicate any prejudice on the part of the judge as would prevent him from observing the obligations of his official oath, which requires him to accord the defendants a fair and impartial trial. Then again *27the statements under consideration are so indefinite that for reasons already given they should be wholly disregarded.
The affidavit concludes by stating that it is the intention of defendants to apply for a change of venue from Huerfano County on account of the prejudice of the inhabitants of that county, and to object to the cause being transferred to the County of Prowers on account of the prejudice of the inhabitants of that county against the defendants; that Judge Hillyer was employed by the coal companies to obtain affidavits to secure the transfer of striking miners’ cases, other than those against the defendants, to that county, and in the District Court of Huerfano County, on behalf of the coal companies argued and insisted that the inhabitants of Prowers County were not prejudiced against the strikers or their sympathizers, and requested that those cases be transferred to Prowers County; that on the hearing for a change of venue the defendants will present the identical affidavits now on file in the other cases referred to, in support of their application for a change of venue; that in some instances affidavits secured by counsel representing the strikers in the other causes showing the prejudice of the inhabitants of Prowers County against them, Judge Hillyer thereafter secured affidavits from the same parties and filed them in court in which the affiants changed or attempted to change their former statements; that in those cases Judge Hillyer personally drew a large number of affidavits in some of which he attacked counsel for striking miners, and charged them with having employed improper methods in obtaining affidavits from residents of Prowers County; that counsel for defendants filed rebuttal affidavits, justifying their conduct, and attacking the affidavits filed by Judge Hillyer, and that all these matters were reviewed in argument by counsel at the time Judge Hillyer appeared as attorney for the coal operators. It is then stated that it will become the duty of the judge who presides in the cause to *28pass upon the question of whether a change of venue from Huerfano County should be granted, and if so to what county it shall be transferred; whether or not Prowers County is a proper county in which to try the cause, and that it would be manifestly improper for Judge Hillyer to determine a question as to which he represented the coal companies in other cases, and should he sit as judge in the case he would have to weigh and pass upon affidavits which as counsel for the companies he has attacked by counter affidavits and argument. This part of the affidavit is merely argumentative or a statement of conclusions, and whether or not it states any facts showing prejudice must be determined from what precedes it. How the affidavits referred to and filed in another case can be used by the defendants in their case is not explained. An affidavit setting up prejudice of the inhabitants of the Counties of Huerfano and Prowers against a defendant in one case, cannot establish such prejudice against another defendant in another case, and it is therefore apparent that the statement to the effect that Judge Hillyer must pass upon and weigh the affidavits mentioned, which he attacked by counter affidavits and argument, cannot be true, and hence the portion of the affidavit under consideration states nothing whatever to establish prejudice on the part of the judge. If, however, this objection is waived, the statements upon which prejudice is predicated are immaterial and irrelevant. It will be observed that what purports to be a statement of facts is in the most general terms. The causes in which the affidavits were filed which defendants say they will use in their application for a change of venue from Huerfano County and resist the transfer of the case to Prowers County, as well as the affidavits said to have been secured by Judge Hillyer, are not mentioned by title or number. The contents of such affidavits are not stated. If the statements regarding these matters are untrue, how would it be possible to hold the affiants responsible for *29swearing falsely? Affiants say-that it is their intention to move for a change of venue from Huerfano County on account of the prejudice of the. inhabitants of that county against them, and resist the transfer of the case to Prowers County for the same reason. If the statement of an intention to move for a change of venue on the ground of prejudice, and object to a case being transferred to another named county upon the same ground, is proper to consider, it should definitely appear by apt averments that conditions exist which warrant the carrying out of such intention. It is not stated that the inhabitants of either county are prejudiced against the defendants. Neither is it stated that the prosecution will resist an application for a change of venue, or insist that the cause be transferred to Prowers County, so that whether any question will be presented to Judge Hillyer on this score is mere conjecture. Defendants have not made any application for a change of venue, or taken any steps to resist sending their case to the County of Prowers. They merely state it is their intention to take these steps. Their intention may be abandoned. In order to raise the question of whether or not, in any circumstances, facts are stated in the part of the affidavit under consideration which disqualify Judge Hillyer they should have presented an actual case, by doing that which they say it is their intention to do in connection with their application for change of judge, and not one which may never materialize. An application for change of judge ought not to be held sufficient except for actual conditions, and it is respectfully submitted that the majority opinion has ruled the application should have been sustained upon a question not in the case, but which defendants say will be. In other words, ruled that it is sufficient upon a proposition which the defendants may abandon, or which so far as appears by the affidavit may never arise, because the prosecution may not take issue on it, and thus ruled that defendants are entitled to a change of judge for a reason which may never exist.
*30In brief an analysis of the affidavit fails to disclose a single fact from which the conclusion can be deduced that Judge Hillyer is prejudiced against the defendants. The history of the strike does not. The statement that he believes the defendants are guilty is no more than the opinion of the defendants. That he is a partisan of the coal companies or is prejudiced against the organization of which defendants are members is simply the opinion of the affiants. Statements intended to establish prejudice, even if sufficient for this purpose, are so indefinite as to time and place and the persons to whom made, that affiants could not be held accountable for swearing falsely. Judge Hillyer was never employed in a case against the defendants. It is said he was employed in other cases against striking miners, but these cases are not mentioned by either title or number. It does not appear that he will be required to pass upon affidavits which it is alleged he attacked in those cases. The coal companies are not parties to the case against the defendants. It is not averred that the inhabitants of either Huerfano or Prowers Counties are prejudiced against them. They have not made an application for a change of venue from'Huerfano County, consequently are not in a position to request that their case should not be transferred to Prowers County. It does not appear that the prosecution will resist an application for a change of venue from Huerfano County if one were made, or insist that the case be sent to Prowers County, and therefore, whether Judge Hillyer will be required to pass upon the question of venue or the prejudice of the inhabitants of either county mentioned is not presented. The affidavit has been so far considered upon the theory that personal bias and prejudice upon the part of Judge Hillyer against the defendants has not thereby been shown, but even if the existence of prejudice against strikers generally and the United Mine Workers of America could be said to show prejudice against the defendants, their affidavit is wholly *31insufficient to establish such prejudice for the reasons given in considering it from the view point that under the law personal prejudice of the judge against the defendants must be shown.
The affidavits supporting the affidavit of defendants add nothing to it. In one of them it is stated that affiant has conversed with Judge Hillyer, and that in his judgment the judge is so prejudiced against defendants that they cannot have a fair and impartial trial before him, and that a change of judge is necessary to a fair and impartial hearing and trial. This is but the opinion or conclusion of the affiant, and not a statement of facts. In another affidavit it is stated that affiant has conversed with Judge Hillyer, and these conversations,disclosed that he was biased and prejudiced as stated in the affidavit of defendants. This again is but a conclusion. In the next affidavit it is stated that affiant has made a careful investigation for the purpose of ascertaining whether Judge Hillyer is biased and prejudiced against defendants, and whether a fair and impartial hearing and trial can be had before him, and that in his judgment the judge is so biased and prejudiced against the defendants that it will be impossible for him to grant a fair and impartial hearing and trial in the cause. It is only necessary to mention that facts must be stated from which bias and prejudice on the part of the judge can be deduced. In the final affidavit it is said that affiant has conversed with the judge; that in these conversations he was outspoken and emphatic in condemning strikers; that he was a strong partisan on the part of the coal companies, and in the judgment of affiant is so deeply prejudiced that no member of the striking miners or their sympathizers can have a fair and impartial trial or hearing before him. Prejudice and bias must be made to appear from facts, and cannot be established from conclusions, or the judgment of the affiant. It will never be presumed that a judge is biased or prejudiced, and *32when it is alleged or suggested that he is, it must be made clearly and affirmatively to appear. With the utmost deference to my esteemed associates it is respectfully submitted that the rules by which to determine bias and prejudice on the part of a judge are shown, have not been applied. The affidavits are misleading, and in the judgment of the writer are a covert and unjust attack upon Judge Hillyer, wholly wanting in such a statement of facts as are necessary under the statute to disqualify him from presiding in the case. They are a mere hotchpotch of conclusions and opinions, mingled with indefinite, immaterial statements and innuendos, not a single paragraph of which, nor taken together as a whole, establish prejudice on the part of Judge Hillyer, and on account of their character and the irrelevant nature of their contents demonstrate the necessity for a rigid construction of the statute. Of course a defendant in a criminal action is entitled to have his case heard and tried by a judge who is not biased or prejudiced against him, but when he seeks a change of judge or venue upon the ground that the judge is prejudiced he must establish it by sworn facts as the law requires. In my opinion the ruling of Judge Hillyer that the petition and affidavits did not state facts showing that he was disqualified to sit in the case was correct, and should be sustained if that question is properly here for consideration.
In the majority opinion it is said that the affidavits being sufficient, Judge Hillyer was ousted of jurisdiction. Erbaugh v. The People is authority for this declaration. The writer did not concur in the opinion in that case on that question, but accepting it as correct, nevertheless, the sufficiency of the affidavits cannot be tested by proceedings in prohibition. Under the statute a presiding judge may be rendered incompetent upon the ground of prejudice. This, however, does not oust the court of jurisdiction. It merely disqualifies the judge. He has authority in the first instance *33to determine the sufficiency of the application. If he errs the court stilj has jurisdiction of the case, consequently prohibition will not lie for such error; because that remedy can only be invoked when an inferior tribunal is exercising a jurisdiction it does not possess or is exceeding its legitimate powers. The writ of prohibition cannot be converted into a writ of error, so that the only method by which the ruling on an application for change of judge can be reviewed is by writ of error after the trial of the cause is concluded. The application for a change of place of trial is entirely different from one, the purpose of which is to disqualify the judge for prejudice. The first directly challenges the jurisdiction of the court, the latter merely goes to the competency of the judge, which by the very terms of the statute, even if sufficient, does not oust the court of jurisdiction. In other words, one raises the jurisdiction of the tribunal, the other is limited to the competency of the presiding judge. For these reasons the proceedings should be dismissed.
The writer is authorized to state that Garrigues, J., concurs in this opinion.