dissenting:
My disagreement with the majority opinion is not with many of the fundamental principles enunciated in it but with their applicability to the facts of this case. The majority opinion is based upon a misconception of the facts. Governor Bonner’s orders do not divest Judge Bennett of authority or jurisdiction over cases in which he is not disqualified. Judge Bennett is not forced to abdicate or stand aside “while others take over his office, ’ ’ save as to cases in which he is disqualified and as to those the law and not the orders of Governor Bonner forces him to stand aside.
In the answer and return made by Governor Bonner, he alleges in substance that the intent and purpose of the orders made by him was not to divest the Hon. Lyman IT. Bennett of jurisdiction in all matters filed in his court but that the intent was to require Judges Shea and Taylor to hold court and impanel juries in the respective counties of the fifth judicial district until the business of that district had been dispatched as to cases at issue and where juries are usual and necessary and to try “all jury cases in which the Hon. Lyman H. Bennett had been disqualified and no other judge had been called in to try the same and as to all cases’’ wherein Judge Bennett had been disqualified and another judge had been called in and accepted jurisdiction that they be set for trial and that the judge and the attorneys for the parties be notified and as to cases and probate proceedings in which Judge Bennett had been disqualified to set motions, demurrers and probate proceedings for hearing and that the judge and respective counsel be notified thereof.
Governor Bonner’s orders were narrowed by the admissions made in the answer and I think as thus narrowed should have been sustained by this court.
*441Section 93-312, R. C. M. 1947, provides: “If for any cause a district court is not or cannot be held in any county by the judge or judges thereof, or by a district judge requested by such judge or judges to hold such court, or if the business of the court in any county is not or cannot be dispatched with reasonable promptness, the governor may, upon application of any interested person, by an order in writing, require some district judge to hold court in said county for such time as may be specified in the order.”
That the business of the fifth judicial district is not dispatched with reasonable promptness my associates concede else they would not have converted the petition of Judge Bennett for a writ of prohibition against Governor Bonner and Judges William R. Taylor and James T. Shea into a mandamus proceeding against himself ordering him to call juries and judges to try the cases pending in that district. It should be said too that much of the difficulty in the fifth judicial district is due to the free use of the statute authorizing the disqualification of judges for imputed bias and hence is a matter over which Judge Bennett has no control.
The majority opinion places reliance upon the decision in State ex rel. Smith v. District Court, 116 Mont. 251, 151 Pac. (2d) 500, 503, to condemn the order of Governor Bonner. In that ease this court dismissed summarily the contention that section 93-312, R. C. M. 1947, then sec. 8823, R. C. M. 1935, was or is unconstitutional and held it to be valid. This court there said: “We think the section is valid’ We can conceive of a situation wherein a judicial district might be left without a judge and the only means of providing one would be by the exercise of the power vested in the Governor by that section.” This was neither dictum nor the mere passing comment of the Justice who wrote the opinion. It was a part of the court’s opinion which was signed by all members of the court including the author of the majority opinion herein.
The court went further however and held that this section could not be resorted to without first exhausting the power *442granted by section 8868, R. C. M. 1935, now section 93-901, R. C. M. 1947. In tbe Smith Case there was involved but one lawsuit the trial of which was being delayed. The conclusion reached in that case was proper. There ivas in fact in that case no basis for resorting to section 93-312.
Conditions justifying action by the Governor were not present in that case. It was the first part of section 93-312 that was attempted to be relied on in the Smith Case and there was no claim or contention that the business of the court as a whole is not dispatched with reasonable promptness so as to bring the case within the latter part of section 93-312. It is the latter part of section 93-312 that is particularly relied upon here.
Is section 93-312 valid? The majority opinion I think is self-contradictory. It asserts that it is unnecessary to pass upon the validity of this section and then proceeds with discussion which if sound, adds up to its invalidity. I think it is valid.
Section 12 of Article VIII of our Constitution divides the state into judicial districts and then provides: “Any judge of the district court may hold court for any other district judge, and shall do so when required by law. ’ ’
Section 93-901 merely authorizes the judge of one district to invite a judge of another district to assume jurisdiction over a case in which the local judge is disqualified, but there is no requirement that the judge invited in must accept jurisdiction. He may or may not accept jurisdiction depending upon the condition of the calendar in his own judicial district, or in fact he may decline to accept the invitation without any cause or reason whatsoever except his own whims.
Section 93-312 is the only legislation passed with section 12 of Article VIII in mind. It is the only law requiring a judge to hold court outside of his own district. In other words, section 93-312 is specifically authorized by the Constitution.
It is asserted that by exercising the powers granted by section 93-312 the Governor is exercising judicial powers contrary to section 1, Article IV of our Constitution. Section 93-312, does not purport to confer judicial powers on the governor.
*443“As used in the Constitution, the expression ‘judicial power’ means ‘the power of a court to decide and pronounce a judgment and carry it into effect between persons and parties who bring a case before it for decision’.” Shea v. North-Butte Mining Co., 55 Mont. 522, 179 Pac. 499, 504.
The governor in carrying out the power conferred by section 93-312 does not exercise judicial powers. He does not purport to hear, try or determine any case pending before the court but merely designates the judge of one district to hold court in another district. Such statutes are not altogether unheard of. Florida has a statute very similar to our section 93-312. Chapter 15613, Florida Acts of 1931, Ex. Sess. Its validity was upheld in Cormack v. Coleman, 120 Fla. 1, 161 So. 844.
It was not questioned on the specific ground that it confers judicial power on the governor although Florida has a constitutional provision the same as our section 1 of Article IV.
We must not condemn the statute unless it appears beyond a reasonable doubt to be in conflict with some provision of the Constitution. The legislature has power to do anything it pleases unless it is prohibited either directly or by necessary implication by some constitutional provision. Here the Constitution does not prohibit such legislation as section 93-312 but on the contrary it is expressly authorized by section 12 of Article VIII.
In the case of In re Weston, 28 Mont. 207, 72 Pac. 512, 517, the’ court had before it a statute conferring power upon this court similar to that conferred upon the governor by section 93-312 and this court said: “Finally, the power sought to be conferred upon this court or two of its justices is not judicial in its character but purely ministerial or executive, and invades another department of our state government, which may not be done. ’ ’
The court then went on to point out that it violated section 1 of Article IV because it conferred ministerial or executive functions on the judiciary. To justify statements made in the majority opinion the Weston case must be overruled.
My associates also rely upon the case of State ex rel. Anaconda Copper Mining Co. v. Clancy, 30 Mont. 529, 77 Pac. 312, *444wherein the court undertook to say what was held in the Weston case. Neither of these cases support the conclusion reached in the majority opinion but rather they sustain my view so far as they have to do with questions arising in this case. It should be noted that both of these cases dealt with the question of securing a judge to try a single case. Neither of them dealt with a congested calendar. Neither of them had anything to do with what is now section 93-312, R. C. M. 1947. Language used in the opinion must be considered in the light of the questions before the court.
This court in using language in those eases to the effect that the power of substituting one district judge for another rested with the district judge was considering only the question of whether it rested with the district judge or with the judges of this court. The question of the governor’s right was not involved in either of those cases.
The holding in the Weston case that section 12 of Article VIII of the Constitution is exclusive and prohibitory was a holding that section 2 of Article VIII, the section dealing with the supervisory power of this court, did not apply. Such holding was in line with the fundamental rule of construction that when one constitutional or statutory provision treats of a question specifically and the other in general terms the special provision will prevail over the general.
Additionally the court in the Weston case held that section 12, Article VIII, could not vest authority in the legislature to give this court jurisdiction to order the judge of one district to hold court in another because that was a ministerial or executive function which could not be thrust upon this court because of section 1, Article IV of the Constitution.
“The governor of the State has, in some states, statutory authority to appoint or call special or extraordinary terms of courts. Where this power is granted it is for the governor alone to decide as to the necessity for such a term, and his discretion in the matter cannot be reviewed.” 21 C. J. S., Courts, see. 157, p. 246.
*445Tlie applicable rule is stated in 21 C. J. S., Courts, sec. 168, page 259, as follows: “An order by the governor, chief justice, or other designated officer or officers assigning a judge to sit in another court or to hold court in another county, district, or department, on account of the disqualification of the regular resident judge, the congestion of the calendar, or other adequate cause, is valid and sufficient to confer jurisdiction where it is authorized by a constitutional provision, valid statutory provision, or authorized rule of court and there is a substantial compliance with procedural requirements.”
I think the governor is the proper officer under our statute and Constitution under facts such as those involved here to require a judge or judges to hold court in the fifth judicial district to relieve the admitted congestion of the calendar in that district.
I think the orders of Governor Bonner, narrowed as they were by admissions in the answer, were and are valid and should be sustained.
The majority opinion, contrary to the statement made in the Weston case, asserts that under the Constitution it is from this court that relief must come if a district judge is “in need of superintending guidance or correction. ’ ’ If section 12 of Article VIII is exclusive as held in the Weston case, then the supervisory power of this court conferred by section 2 of Article VIII has no application.
I concede that we have supervisory power under section .2 of Article VIII to correct mistakes in individual cases as they are brought to us.
I think when, as in this case, it is sought to compel the district judge of one district to clean up the congestion of the calendar in another district and particularly where the local judge is disqualified in a great many eases, section 93-312 provides the way and that that section was enacted pursuant to the grant of authority conferred by section 12 of Article VIII of our Constitution. If the validity of section 93-312 need not be considered then what has become of that section? It is the only section of the *446statute that confers authority upon any one to require the judge of one district to hold court in another. It' applies to the situation here.
The majority opinion seems to find comfort in the case of Commonwealth ex rel. Duff v. Keenan, 347 Pa. 574, 33 A. (2d) 244. In that case the appellate court granted a writ of mandamus upon application of the attorney general to compel the district judge to perform his duties. There was involved no statute such as our section 93-312. The proceeding was based upon a rule of the Supreme Court peculiar to Pennsylvania. If section 12 of Article VIII is exclusive as held in the Weston case then section 3, Article VIII authorizing writs of mandamus has no application.
The imaginary confusion alluded to in the majority opinion has no basis in fact. The orders of Governor Bonner as shown in the return show that in any case where Judge MeClernan or any other judge called in by Judge Bennett had assumed jurisdiction, such judge and not Judge Taylor would try such case.
Whether Judge Bennett or Governor Bonner would have authority to call in another judge in case Judge Shea or Judge Taylor was disqualified is not involved here and the fact that it might present an interesting question were such facts before us has nothing to do with the governor’s authority under section 93-312 to direct a judge of one district to hold court in another in order to speed up the work in the latter district.
I -think too that the only question before us on this proceeding is the validity of Governor Bonner’s orders. I think it is improper to convert Judge Bennett’s application for relief from those orders into an application for mandamus directed against himself as has been done.
The mandatory writ issued by this court against Judge Bennett came out of a clear sky, with no petition or pleading, without notice or hearing and without statutory or constitutional authority. The order of this court requires reports from Judge Bennett from time to time and yet the majority opinion seems to have doubt as to who is riding herd over Judge Bennett.
*447I think Governor Bonner’s orders issued after notice and hearing and in compliance with the statute and upon admittedly adequate proof, were valid and should have been sustained to the extent to which they were intended to apply as shown by the return.