1 cannot concur, in so much of the opinion announced in this case as holds, that under the Constitution of this State, and the laws made in pursuance thereof, a special judge may be elected by the bar to hold a special term of the court.
Decisions from other States are relied upon to support the position; but they fail to do so; and in' all these cases the records show that the special judge was elected to hold the general term oi the court, and no precedent is cited, and we believe none can be found, which holds, that authority was given to elect a special judge to hold a special term of the court. The Legislature of Kentucky by a special act authorized it to be done; but that Legislature had over the subject under the *880Constitution of that State almost unlimited power. I think it will be found that the Constitutions of those States, in which the decisions referred to were rendered, in their scheme of a judiciary differ «laterally from our Constitution. This is particularity true of the Kentucky Constitution, from which §16 of article 8 is taken, word for word. Section 1, of the same article of our Constitution provides, that the judicial power shall be vested in a Supreme Court of Appeals, and in circuit courts and the judges thereof, in county and corporation courts, and in justices of the peace, while §1 of article 4, of the Kentucky Constitution is as follows: “The judicial power of this commonwealth, both as to matters of law and equity, shall be vested in one Supreme Court (to be styled the Court of Appeals), the courts established by this Constitution and such courts, inferior to the Supreme Court, as the General Assembly may from time to time erect and establish.” Here is a very markfed difference in the two Constitutions as to the limitations of power over the judiciary. Under the Constitution of Kentucky there is no limitation on the Legislature whatever in the establishment of courts, except that such courts so established shall be inferior to the Supreme Court. Can it be reasonably claimed, that our Legislature is as free to establish courts, either permanent or temporary, as is the Legislature of Kentucky ? The Kentucky Constitution being so broad in its power may be the reason why we find no decisions in that State construing that clause of their organic law.
Indiana and Missouri have clauses in their Constitutions, somewhat similar to ours, in respect to proceedings for holding circuit courts when the judge fails to attend, that have received judicial interpretation ; and it has been held in both those States, that acts providing for special judges to h'old the courts, where the judge was unable to be present, were Constitutional. These decisions were rendered before our Constitution was framed and adopted.
*881If it were a case of first impression, I should hesitate before pronouncing Constitutional the act of our Legislature providing for the election of a judge by "the members of the bar, with power to try cases involving property, liberty and life, without the consent of those most interested. As it. is I am unwilling to go one step farther in that direction, than the organic law'compels me.
If we concede, as we do, that the act of the Legislature is authorized by the Constitution in its application to the general terms of the court, do the Constitution and the act apply to special terms of the court, called by the regular judge? The Kentucky act, section 1, provides that “when from any cause the judge of the circuit court fails to attend, or if in attendance cannot properly preside in a cause or causes pending in such court, the attorney? of the eom’t, who are present, shall elect one of their number, then in attendance, to hold the court for the occasion, who shall accordingly preside and adjudicate.” * * * “The election shall be held by the clerk, and in case of a tie he shall give the casting vote.” * * * * “The person elected shall, during the period that he acts, have all the powers, and be liable to all the responsibilities, of a circuit judge.” 1 Ke-vised Statutes Kentucky 320. On page 366 we find an act, which provides for holding two special terms of the “Lexington circuit court,” at specified times, each term to continue six judicial days; and further provides, “if the regular presiding judge cannot hold said special courts, either from sickness, holding courts elsewhere, or for any cause, then the members of the bar in attendance shall elect a judge pro tem., under the same rules, regulations and restrictions as now prescribed by law.” This to me very clearly shows, that to the legislative mind the general statute above cited did not apply to special terms. Our statute, section' 1, chapter 129, Acts 1872-3, provides “that when from *882anY cause a judge shall fail to attend on the first day of íem °f a circuit court for any county, to hold the gamo^ -¿^e attorneys-at-law practicing in' said court, or a major¡ty 0f those in attendance, by a writing under their hands may appoint some discreet and proper person, learned in the law, and a citizen of the State, to act as judge of the said court for the term, <fec.”
Section 4 of the same act is as follows : “That if a judge of a circuit court during the said term shall appear, to assume and discharge the duties of his office, the bench shall be vacated by the person so holding the term, and his powers and duties from that time shall cease/’
Section 8 of chapter 15 of said acts provides, that “whenever any judge of a circuit court shall have appointed a special term of any circuit court in the manner directed by the preceding section, and shall have afterwards ascertained, that he cannot hold the' said special term on the day appointed for it, he may by warrant under his hand, directed to the clerk of the court, adjourn to such other day as he may deem proper.”
The constitutional power, providing for “holding circuit courts when from any cause the judge shall fail to attend,” &e., was adopted from the supposed necessity of the case; so that litigants in the courts could more promptly have their causes heard and determined. It was known that it wasimpossible forjudges to always be in attendance at the terms of the court as fixed by law ; and that the failure of the judge to attend after full preparation by litigants for the trial of causes would entail great expense upon them, and expense upon the county and State also. There was reason therefore for the provision and also for the act of the Legislature providing for the holding of the regularly appointed terms of the court under such circumstances. But this reason does not apply to the holding of the special terms. Under the law those terms are the creation of the judges them-seives, their fiat creates them j they can appoint them at *883any time that may suit their convenience; and after having appointed them, if they find they will not be able to attend on the day appointed, their fiat can adjourn them to such other time as they may be able to attend. Not so with the regular terms; the time for holding them is fixed by the Legislature. If the judge from any cause cannot attend by the third day, the court is adjourned until the first day of the next regular term. There was no help for it until the Constitution and act provided for the difficulty, as we have seen. There are, it seems to us, great reasons why the provision and act were not intended to apply to special terms.
If the construction contended for by Brother Moore is correct, it puts an unfortunate power in the hands of the circuit judge. If for any cause he dislikes to try certain causes before him, all he would have to do would be to appoint a special term, fail to attend, and if but four lawyers were in attendance, and two of them engaged on one side of the cause, and one on the other, the two, against the protest of the other, could elect the fourth a judge, and proceed to try the cause, whether the case involved dollars and cents, or the life of the defendant. It may be answered, that all this might occur at a regular term; but it is not so likely to occur. At the regular terms the members of the bar practicing in the court are apt to be on hand to attend to their business; but a special term may be called for the trial of a particular case, when no attorneys would be apt to attend ex-ceptuóse interested in that case. Again, the j udge would not be apt to absent himself from the regular terms unless for weighty reasons. The provision of the Constitution and the act made in pursuance thereof are against the common mode of trials, and I think should be strictly construed. It is not written in the Constitution or act, that either wTas intended to apply to special terms, and I am opposed to going in this direction beyond what is plainly written.
*884-towa an act of the Legislature provided that “ the parties by the consent of the the court might select any person t0 ac{¡ as judge for the trial of a particular case ;” but the Supreme Court said : “ True the Code so provides, but the section is clearly unconstitutional. The Constitution points out the manner in which district judges shall be elected and qualified. The Legislature has no power to authorize a district judge to place his judicial robe upon the shoulders of any man. If he can do it in a particular case, he can do it in each particular case by consent of parties, fold his arms, and smile complacently upon his self constituted court.” Winchester v. Ayers, 4 Iowa 104.
In the Missouri Constitution is the following: "If there be a vacancy in the office of the judge of any circuit, or if he be’ sick, absent or from any cause unable to hold any term of court of any county of his circuit, such term of court may be held by a judge of any other circuit; and at the request of the judge of any circuit any term of court in his circuit may be held by the judge of any other circuit.” A judge so situated that he could not try the cause, being the plaintiff, called upon the judge of another circuit, who was present at the time, to preside at the trial of that cause; the defendant objected to the j udge thus called upon taking jurisdiction of the cause, and moved for a change of venue, which motion was overruled, and the judge thus on the bench tried the cause. In this case the Supreme Court of Missouri said : “ In this case both the judges evidently construed the authority given a judge of another circuit to hold one of the terms of the Gasconade circuit court at the request of its judge, as also giving authority to sit in a particular case at his request, the term being held by himself. But no such authority is contained in the section, either directly or by implication. The judge of a circuit may procure another judge to hold a particular term of court, giving up to him the whole business of the term; but he is not authorized, in *885order to prevent a change of venue in a particular case, or for any other reason, to call in a neighboring judge to try that causo. And if he does so call him in, though he .try it ever so fairly, it is a trial without authority of law, and his decision has no binding force.” Gale v. Michie, 47 Mo. 328.
I do not believe the Constitution authorizes the Legislature to provide that a special j udge elected by the bar mayhold a special term ; and I do not think the Legislature has attempted to exercise that power; therefore the special judge, who presided at the trial of this prisoner, had no warrant, for doing so, and the whole proceedings are coran non judice and void, and for that reason the prisoner is entitled to a new trial.
Green, President, Concurred in the above Opinion.Judgment Reversed, Cause Rehanded.