Dissenting Opinion.
Spencer, C. J.— I cannot get my reasoning processes to concur with the majority opinion herein and, while I recognize the futility of a dissenting opinion as being ordinarily only a protest or a specific method of recording a minority vote, yet to my mind the one- vital question presented by this record and but slightly touched on in the majority opinion, is so fraught with possibilities of great danger to the personal liberty of the citizens of the State, that I deem it my duty to espress my views thereon.
At the threshold of this case we are met with the fact that it is a criminal prosecution and has to do with the liberty of a citizen. A plea in abatement has been filed which covers 123 closely typewritten pages. It contains “immaterial, redundant and impertinent matter, much of which is scandalous”. Its “material facts might be concisely stated within the scope of two or three typewritten pages”. It *705contains “two grains of wheat” and “two bushels of chaff”. Jt also contains serious charges of crime and misconduct on the part of those connected with the case. One of the “grains of wheat” is found in the allegations 'that there was a duly elected, qualified and acting prosecuting attorney for the 43d judicial circuit of the State of Indiana; that he had been elected by the people; that it was his duty to prosecute the pleas of the State of Indiana within and for the county of Yigo in said judicial circuit; that he and his regularly appointed deputies were present and in attendance at the term of court at which the indictment was returned ; that he was able, willing and ready to appear before the new grand jury empaneled by the court and to assist, in conducting its investigations; that the court, of its own motion, appointed as special prosecutor to appear before such grand jury one Joseph Roach and further instructed the grand jury not to permit any person other than said Roach to appear before it on behalf of the State at any time when it was hearing evidence in relation to election frauds but that the regularly elected prosecuting attorney might appear before it to present any other matter which might properly come before it for investigation; that the appointment of such special prosecutor was made over the objection and protest of the duly elected and acting prosecuting attorney; that the latter was at all times ready, willing and competent to conduct examinations and to perform his duties as such elected officer; that he was in no way disqualified from performing such duties and was at no time absent from his circuit; that the trial court suspended and superseded such duly elected prosecutor without authority of law so to do.
Another of the “grains of wheat” contained in the verified plea, without stating it in detail, was a full and complete charge of misconduct on the part of the court, clerk and jury commissioners in selecting and. drawing the grand *706jurors who were subsequently empaneled and acted as such under the advice and direction of said special prosecuting attorney and who returned the indictment herein. Such charge of misconduct was one of collusion and corruption in the selection and empaneling of the so-called new grand jury. Either of the above “grains of wheat”, when called to the attention of an uneorrupted tribunal, should immediately arouse the inquiry of the court to the extent that every effort should be made to ascertain the truth or falsity of the charges made, notwithstanding that the grains may have been mingled with any number of “bushels of chaff”. The pleading was stricken out as a whole and the opportunity of the court to determine the truth or falsity of the grave charges which it contained was thus destroyed. The majority opinion-herein states it to be “the general rule that the motion to strike out under such circumstances should be directed only to the allegations which contain the improper matters”. Had such general rule prevailed in this case it can be readily seen that the court would have the “grains of wheat” as grist for its mill of truth. It should be kept in mind that each case cited in the majority opinion to the effect that the entire pleading may be stricken from the files when the scandalous and impertinent matter predominates and is so blended and intermingled with the pertinent matter as to render its separation impracticable or difficult, is a civil case and in none of them was the liberty of a citizen involved. It is also correct to state that in a proper case “a court is bound to purge its records of scandal”, but when matter that otherwise would-be scandalous is material and pertinent to the issue it can not be scandalous. It seems to the writer that a better method of purging the records of scandalous matter would be to cite the pleader of such' matter and his attorney to show cause why they should not be adjudged in contempt of court and if so found, be punished therefor, and the objectionable matter expunged, rather than to strike from the files in its entirety a pleading *707which, it is conceded, contains some “grains of wheat”. That which a court should seek is the truth and if, in such search, things unclean and unwholesome are found, that affords no good reason for abandoning the search and thereby permitting injustice to be done to the extent of depriving a citizen of his liberty. In the case of Ringo v. New Farmers Bank (1897), 101 Ky. 91, 39 S. W. 701, it is in substance said, the court struck out an answer as a whole because it contained slanderous matter but granted defendant leave to file an answer eliminating the objectionable averments. This principle should have been applied in the instant case but from the matters alleged in the plea in abatement it will hardly do to presume that the trial court would have granted leave to refile. The reasoning of the majority opinion leads to the presumption that the defendant would have been permitted to file and refile successive pleas in abatement until their tenor, tone and odor pleased the peculiar olfactory nerves of the trial judge; and should he fail in this, then whatever good and sufficient reasons may exist for abating the action must be cast aside. In other words, if counsel representing a defendant charged with a felony employs language and makes averments that are scandalous in connection with allegations which are material and pertinent and contain good “grains of wheat”, his client, by presumption and discretion of the court, is to be deprived of his right to have the truth ascertained. To the mind of the writer such can not be the law.
Had the court required that the scandalous matter or chaff be stricken out, leaving the grains of wheat, viz., the appointment on the court’s own motion of a special prosecuting attorney, thereby suspending the regularly elected officer, and the charge of corruption in the selection and empaneling of the grand jury, what would be the law of the case?
The only direct authority cited by appellee in support of the idea that circuit courts have an implied discretionary *708power to meet emergencies which may be assumed to exist and may exercise such power by the appointment of a special prosecutor when necessary in the judgment of the court to secure the proper administration of justice, is the case of Dukes v. State (1858), 11 Ind. 557, 563, 71 Am. Dec. 370, in which the court said: “we think the court possesses an inherent power to appoint one of the attorneys of the court, when necessary to prevent a failure of justice, to conduct the prosecution of a criminal.” When considered with the pertinent averments of the plea in abatement filed in this case, the above declaration is so remote from the true logic of the situation here presented as to require but little reasoning to make that fact apparent.
As is said in State ex rel. v. Home Brewing Co. (1914), 182 Ind. 75, 105 N. E. 909: “Prosecuting attorneys are the historic law officers of the State. As early as 1824 they were appointed by the Governor and the duty placed on them ‘to prosecute all pleas, plaints, indictments, presentments and suits of every description on the part of the State.’ R. S. 1824 p. 127, §10. In 1831 their duties as fixed by statutory law were not materially different, but they were chosen by joint ballot of the senate and house of representatives. R. S. 1831 p. 88, §1. Thus the law continued until 1843 when provision was made for their election by the people. R. S. 1843 p. 100, §28, p. 1020, §1. By §11, Art. 7, of the present Constitution, they were made elective constitutional officers.”
Section 11, Art. 7, of the Constitution provides that “There shall be elected in each judicial circuit by the voters thereof, a prosecuting attorney, who shall hold his office for two years.” Section 9403 Burns 1914, §5861 R. S. 1881, provides that “At the general election in the year 1852, and every second year thereafter,, there shall be elected in each judicial circuit, a prosecuting attorney, who shall prosecute the pleas of the state in the circuit courts of-such circuit.” Section 9406 Burns 1914, §5864 R. S. 1881, further provides *709that ‘ ‘ Such prosecuting' attorneys, within their respective jurisdictions, shall conduct all prosecutions for felonies or misdemeanors and all suits on forfeited recognizances; resist applications for changing names, protect the interests of all ■persons of unsound mind and superintend, on behalf of counties or any of the trust funds, all suits in which the same may be interested or involved, and shall perform all other duties required by law.” Under the provisions of §1980 Burns 1914, Acts 1905 p. 584, §109, “The prosecuting attorney or his deputy shall be allowed at all times to appear before the grand jury, for the purpose of giving information relative to any matter cognizable by it, or advice upon any legal matter when required; and he may interrogate witnesses before the grand jury, when the jury or he deem it necessary, but no prosecuting attorney, officer or person shall be present with the grand jury during the expression of their opinions or in giving their votes upon any matter before them.” Section 12, Art. 7, of the Constitution provides that “Any judge or prosecuting attorney who shall have been convicted of corruption or other high crime, may, on information in the name of the state, be removed from office by the supreme court, or in such other manner as may be prescribed by law.”
Judges of the circuit courts and prosecuting attorneys are creatures of the Constitution, neither dependent or interdependent on the other but each complete within the sphere of their powers and duties, and it will not do to say that one constitutional public officer has properly performed his duty by indulging the presumption against another such officer that he has been or will be derelict in the performance of his duties. As is said in 22 Am. and Eng. Ency. Law (2d ed.) 1270, “the presumption that oiie officer has performed his duty cannot be invoked for the purpose of putting another officer in default, as the presumption of the performance of official duty applies equally in favor of each.” See, also, cases cited in support of above statement. When *710a public officer is present on the scene of his official duties, is able to discharge such duties and is not prejudiced, as the plea in abatement here asserts, the law affirmatively presumes that such officer will perform such duties, and in the absence of any allegations to the contrary that legal presumption prevails. To put the proposition in another form is to enquire whether a circuit court in this State is clothed with power and authority on its own initiative to suspend the prosecuting attorney of the circuit from his office or to supersede him by appointing a special prosecuting attorney in a particular case. If so, can not the judge of the circuit court remove and appoint attorneys in civil cases With as much reason ? I think it clear that the judge of a circuit court has no right to prosecute either civil or criminal cases and is under no duty so to do. The true sphere of his duty is to adjudge and administer the law impartially as to all parties before the court, leaving the conduct of all causes, civil and criminal alike, in the hands of those whose duty it is under the law to conduct them. To use the exact language of this court in Tull v. State, ex rel. (1884), 99 Ind. 238, 240: “The court having jurisdiction of felonies is not organized to acquit or to convict persons accused of crime, but to see that, if innocent, they have safe deliverance, and, if guilty, that they be justly punished.”
By the appointment of the special prosecutor as herein alleged the regular prosecuting attorney was suspended from the office to which he had been elected by the people. A suspension from office has been defined to be “an interruption in the exercise of the officer’s duty”; “a deprivation of the office for a time”. The word “suspend” has been defined “to cause to cease for a time, to hinder from proceeding, to interrupt, to delay, to stay.” 8 Words and Phrases 6833.
The case of Dukes v. State, supra, which contains the expression above quoted has been clearly distinguished in Board, etc. v. McGregor (1909), 171 Ind. 634, 638, 87 N. E. *7111, 17 Ann. Cas. 333, where it is expressly denied that the appointment in the Dukes case was an exercise of any inherent power of the court but was rather the exercise of a power implied from the statutory authority to fill a temporary vacancy caused by the absence of the regular prosecuting attorney. The writer of the opinion in the McGregor case said: “The expression ‘inherent power’, made with
respect to an act of the court done ex necessitate in a matter where the authority could be reasonably implied from that expressly given, has suggested in later days grave constitutional questions.” I do not believe that such power is one of the inherent and sacred prerogatives of the court.
Without extending this opinion with a discussion of the question of jury corruption, how it is to be shown, and the improper selection of a grand jury, I believe that the action of the trial court in sustaining the motion to strike out the plea in abatement was prejudicial error and for that reason alone the cause should be reversed and remanded.
Note. — Reported in 109 N. E. 401, 748. As to the place where a crime is deemed to have been committed, see 44 Am. St. 79. Judicial notice of geographical facts, see 12 Ann, Cas. 927. See, also, under (1) 12 Cyc. 356; (2) 31 Cyc. 036; (3) 16 Cyc. 257; 31 Cyc. 6S; (5) 22 Cyc. 333; (6) 22 Cyc. 309, 310; (7) 22 Cyc. 253.