Dissenting Opinion.
Spencer, J.I do not concur in the majority opinion in this ease, and desire to state as briefly as possible my reasons for dissenting therefrom. First, I can not agree that the questions presented by this action are limited to those discussed in the ' majority opinion, or rather that they are exactly as there stated. It is true that the record discloses no permanent removal from office of the prosecuting attorney, nor any attempt in that direction. The action taken by the trial court, however, was- tantamount to a temporary suspension and this fact directly presents for determination the right of a *322court of criminal jurisdiction thus to suspend the regularly elected prosecuting attorney. It is stated in the majority opinion that the questions to be considered are: “(1) Was Mr. Mann incompetent to prosecute relator, and, if so (2) Did the circuit court have power to appoint a special prosecuting attorney in the causes in controversy, and, if such appointment was valid (3) Did the regular prosecuting attorney have the power, under the act of 1915 (Acts 1915 p. 30), to agree, on behalf of the State, to the selection of a judge to hear the causes in question.”
As I view the record, however, the first of the above propositions is presented but incidentally, if at all, while the third should be determined in the affirmative without question under the facts stated in the pleadings, and after holding invalid the appointment of Mr. Thompson as special prosecutor. The second proposition, however, suggests the real question in this case, which, to my mind, is not so • much whether the circuit court had “power to appoint a special prosecuting attorney,” but whether it had the right to exercise that power on its own initiative. In reaching its conclusion that the defendant in this action was authorized to appoint a special prosecutor, the majority opinion relies mainly on §9407 Burns 1914, §5865 R. S. 1881, and on the case of Dukes v. State (1858), 11 Ind. 557, 71 Am. Dec. 370, which undertakes to construe the same. There can be no doubt that when a prosecuting attorney fails “to attend any court of his circuit,” there is presented an emergency in which the judge of that circuit may, and it is probably his duty to “appoint some person to prosecute for such term.” In the Dukes case this court overruled the appellant’s contention that the appointment of the special prosecutor therein was void, and gave as its reason *323for such, ruling that “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.” This statement was properly criticized in the case of Board, etc. v. McGregor (1909), 171 Ind. 634, 87 N. E. 1, 17 Ann. Cas. 333, wherein it was said that the' appointment in the Dukes ease was rather the “exercise of a power implied from the statutory authority to fill the temporary vacancy.” But whether the power of appointment, assuming its existence, is inherent in character, or is to be implied from statutory authority, the question here to be determined is the proper manner in which its exercise may be invoked.
It is true that the prosecuting attorney is an officer of the court, but that expression is to be construed in its larger sense, as meaning a part of the judicial tribunal created by law for the administration of justice. In that capacity he is a public officer, and “the public nature of his. employment results from the fact that he represents the sovereign power of the people of the state, by whose authority and in whose name all prosecutions must be conducted. * * * It is his relation to his client, not to the court, that makes him a public officer.” Fleming v. Hance (1908), 153 Cal. 162, 167, 94 Pac. 620. Again, to transpose slightly the opening words of the sentence, it is said in State, ex rel. v. Friedley (1893), 135 Ind. 119, 128, 34 N. E. 872, 21 L. R. A. 634, that the office of prosecuting attorney, as well as circuit judge, “is a public trust, committed by the public to an individual, the duties and functions of which he is bound to perform for the benefit of the public, and entitles bim to exercise all the duties and functions of the office.” The judges of the circuit courts and the prosecuting *324attorneys are, therefore, neither dependent nor interdependent on one another for authority, but each office is complete in itself within the sphere of its particular powers and duties, and the incumbent of each is responsible to the public alone for his proper discharge of such duties. The result of the majority opinion is to say that the judge in a criminal ease, being advised of facts which, in his judgment, serve to disqualify the prosecuting attorney from acting in that particular case, may, of his own initiative, appoint a special prosecuting attorney to proceed with the conduct of that case. Such right does not exist. When a public officer is present at the scene of his official duties and is able to discharge such duties, the law affirmatively presumes that he will faithfully perform the same, and in the absence of an express charge and proof to the contrary that legal presumption will prevail. If the people of the State are unwilling to believe that those whom they select to conduct their prosecutions will at all times remain faithful to the trust which is reposed in them, they may then provide a method of supervision which shall authorize a transfer of such trust to other hands when necessary, but so long as they are willing to accord to their public officers the presumption that official duties will be faithfully performed, and insist on punishment only when the trust is actually betrayed, it is not incumbent on one public officer to prejudge the official conduct of another and take it on himself to relieve the latter of luis office, even temporarily.
The situation which is presented by the record before this court is not without solution, and, in the opinion of the writer, a solution may be reached (I) which shall be in full harmony with the rights accorded to prosecuting attorneys by virtue of their election to public office; (2) which shall make proper *325provision for the appointment of special prosecuting attorneys when the need arises, and (3) which will prevent the occurrence of certain evils which are now made possible, if not invited by the holding of the majority.
Whether the circumstances in a particular case should serve to disqualify a prosecuting' attorney from acting therein is a matter which can not be settled through the enunciation of a general rule. The influence of such circumstances is best known to the prosecutor himself and it is but fair and right to assume that when such an officer is convinced that he can not act impartially in a matter at hand, or doubts his ability so to do, he will advise the court of such facts and request the appointment of an assistant. There can be no doubt that “He owes a duty to both . State and defendant, and if the facts .are such as to preclude the exercise of his full duties to both he should step aside.” It would be his duty to take such action and to deny to him in this matter, as in any other, the presumption that he will do his duty is a reflection not alone on the officer himself but on the people who are responsible for his election. As decided by this court in a number of eases, and as thus stated in Wood v. State (1883), 92 Ind. 269, 270: “A prosecuting attorney may properly ask the court to appoint attorneys to assist him in the prosecution of a man accused of crime,, and the court commits no error in granting the request. The law freely accords to the accused the assistance of such counsel as he may desire, and there is no reason why the same privilege should not be accorded to the State.” The exercise of this right is not limited to those cases in which matters of particular importance are involved or in which the prosecutor recognizes that the defense is receiving unusual preparation, but it is equally avail*326able when that officer, in the conscientious discharge of his trust, feels that his personal relationship to the accused is or has been such as to make proper his retirement from the case. He may, and it is to be presumed that he will then, request the appointment of another to act in his stead, and the court may exercise its own discretion in selecting the appointee, but until such request is actually made the court has no right to exercise any power of appointment.
The use .of the term “inherent power,” as applied to the authority which courts have to appoint an attorney for those who are unable to employ their own counsel, has given rise to apparent confusion in some of the decisions which deal with that right, but, whatever the nature or source of that power, the method of its invocation is well settled and finds clear analogy in the matter now under consideration. As said in Hendryx v. State (1892), 130 Ind. 265, 268, 29 N. E. 1131: “The power, as well as the duty of the court, to assign to poor persons, charged with serious crimes, counsel for their defense, upon a proper showing, is no longer open to dispute in this State.” But while the court has such power and may, on its own motion, advise the accused that he is entitled to counsel, it is not the duty of the court to appoint such counsel except on proper showing and on the application of the accused. As stated in 8 R. C. L. 84: “The defendant’s right to counsel being optional to him, it is for him to assert it. Unless he claims his right, and his request for the assistance of counsel appears by the record to have been denied by the court, no invasion of this right is disclosed.” A similar principle is applicable here. The prosecutor may request assistance or ask that he be relieved in a particular case, but until he does, the court may not act. The judge *327of a circuit court has no right to prosecute either civil or criminal cases and is under no obligation so to do. The true sphere of his duty is to adjudge and administer the law impartially to all parties before the court, leaving the conduct of all causes, civil and criminal, in the hands of those whose duty it is to conduct, them. Section 12, article 7, of our Constitution provides for the removal from office of “any judge or prosecuting attorney who shall have been convicted of corruption or other high crime,” and the law provides for their removal on no other ground. State v. Patterson (1914), 181 Ind. 660, 102 N. E. 228. If a prosecuting attorney should render professional assistance, directly or indirectly, to the defendant in a criminal action, he would violate his duties as such officer (In re Voss [1903], 11 N. Dak. 540, 550, 90 N. W. 15) and would be liable to removal from office in the method prescribed, but so long as it appears from his own conduct that he is engaged in the faithful performance of his official duties he is not to be prejudged guilty of malfeasance in office.
The majority opinion suggests, in discussing Mr. Mann’s right to appoint the special prosecutor, that “one may not do indirectly what the law forbids him doing directly.” Yet to hold, in effect, that a circuit judge may, of his motion, suspend the prosecuting attorney in a particular ease is to open an indirect way to a practical removal from office of such official. Certainly the conduct of that office might be seriously interfered with. As is said in Sayles v. Circuit Judge (1890), 82 Mich. 84, 90, 46 N. W. 29: “The circuit judge is a conservator of the peace, but that does not authorize him to appoint any one to act as a public prosecutor, except in his own court, in cases over which he has jurisdiction. Even then his power is statutory. Nor would it be for the *328public interest to permit a complaining witness, or other person interested in a criminal prosecution, before the case reaches the circuit court, to petition the circuit judge to depose the prosecuting attorney, even if such attorney is confessedly disqualified from acting as prosecutor. If this were allowed, the circuit courts would be applied to, in almost every criminal inquiry or prosecution, to set aside the prosecuting attorney because of his inaction or bias, and to appoint some attorney in his stead; because, if the prosecuting attorney performs his duty in such cases, as he should, in the interest of the whole people, the complaining witness is seldom satisfied.” Nor is this argument met by the statement of the majority herein that “Warrant for such contention will not be found in this opinion.” What better reason exists for believing, that a circuit judge will exercise his power of suspension and appointment only when there is actual disqualification of the elected officer than for refusing to believe that the latter will respect his oath of office and ask to be relieved when the circumstances prompt such request? Why are we to assume that when a regularly elected prosecutor is suspended, perhaps over his honest protest, a special prosecutor who is prejudiced against the accused will not be knowingly appointed by the court? Surely, if the prosecuting attorney is not entitled to the legal presumption that he will perform the duties of his office, fairly and impartially, is that presumption to be accorded to the judge? In brief, the holding of the majority makes possible a situation in which, in the event of actual corruption on the part of the trial judge, the position of the accused in a particular case might be rendered perilous indeed, and in which, when the interests of the public in general are considered, the possibilities for a miscarriage of justice *329would exceed those arising out of isolated cases wherein the prosecutor chose to act, though disqualified. The opinion in the case of Pippin v. State (1854), 34 Tenn. *42, contains language which is peculiarly applicable to several phases of the matter now under consideration. The court there reviewed the action of the trial court in appointing a special “attorney-general”, or prosecutor, and said, beginning at page 44: “The prisoner, Willis Pippin, was convicted, in the circuit court of Jackson, on an indictment for larceny, He moved in arrest of judgment, and the motion being overruled, he appealed in error to this court. The indictment purports to be preferred, and signed, not by the regular attorney for the state, but by ‘Benjamin B. Wash-burn, special attorney-general.’ He was appointed by an order of the court, in the following terms, to wit: ‘It appearing to the court that Thomas B. Murray, the attorney-general for the state, is incompetent to prosecute the suit of the State v. Willis Pippin, for larceny, he having been employed to defend him against said charge before his election and qualification to said office, Benjamin B. Washburn was thereon appointed, by the court, attorney-general to prosecute said suit in behalf of the state, who appeared in open court and was qualified according to law.’ In virtue of this order the prosecution was- instituted and conducted by the said Washburn, acting as attorney-general for the state. The question is, Was this a valid appointment? The Constitution, Art. 6, §5, provides that ‘in all eases where an attorney for any district fails or refuses to attend and prosecute, according to law, the court shall have power to appoint an attorney pro tempore.’ It is clear that by this clause of the Constitution two cases are provided for: First, where the regular attorney for the state fails *330to attend and prosecute. Second, where he refuse to attend and prosecute. In either ease the court has power to make an appointment pro tempore. * * * In the exercise of the power to appoint, it is material to state, in the order, the facts which render it necessary, so that it may appear to be a case under the Constitution. For the court has no general power to appoint an attorney for the state, but a special power merely; and in its exercise the facts must appear, on the existence of which the validity of the appointment depends. Now, does the order of appointment assume the existence of a case specified in the Constitution? It states that the attorney-general, having been of counsel for the accused, was incompetent to perform his office, and then proceeds to make a special appointment. It does not state that he failed to attend and prosecute, or refused to attend and prosecute — the cases specified in the Constitution — but states a different case, not so specified. Nor do we see that the cause stated rendered the attorney legally incompetent, or that such objection to the exercise of his office would lie against him. Certainly it was a good and sufficient reason why he should himself ‘refuse to attend and prosecute;’ and if he had so acted, the power to appoint was clear and explicit. But it does not appear that he either offered or refused to prosecute, or took any action in the case. We have only the action of the court, which declares him incompetent, and makes a special appointment for a new cause, not stated in the Constitution. We think it clear that the appointment of the attorney pro tempore was void.”
In conclusion, then, it is my opinion that the record at bar discloses no warrant for the action of the Delaware Circuit Court in appointing the special prosecutor, Mr. Thompson, and his appointment *331was void. Tbe allegation in defendant’s answer, “That said J. Frank Mann appeared in open court and consented that said William A. Thompson be appointed special prosecuting attorney” is not equivalent to an allegation that be admitted bis disqualification and asked to be relieved. And other averments of tbe pleading show clearly that be considered himself authorized to act as tbe prosecuting attorney in tbe case and assumed so to act. In my judgment, tbe demurrer to defendant’s return should have been sustained.
Erwin, J., concurs in this dissenting opinion.Note. — Reported, in 112 N. E. 98. See, also, under (1, 2) 32 Cyc 689; (4) 8 Cyc 383; 8 Cyc 740; (5) 12 Cyc 530; (6) 12 Cyc 531; 32 Cyc 719, 721; (7) 32 Cyc 719.