DISSENTING OPINION. I must respectfully dissent from the opinion of the majority so far as it holds that the regular judge, after a change had been taken from him because of his bias and prejudice, and a special judge had been appointed, was authorized to modify the order of sale rendered by the special judge. It does not appear that the special judge had declined to act, nor does it appear that there had been any consent that the cause might be remanded to the jurisdiction of the regular judge. It is my opinion that such regular judge was wholly without jurisdiction to make such change, that the amended order of sale was void, and that an injunction, therefore, lies to prevent a sale under such amended order.
In Perkins v. Hayward (1890), 124 Ind. 445, 24 N.E. 1033, there was a change from the regular judge and a special judge was chosen to try the case, and the court, speaking by Elliott, J., with reference to the authority of the regular judge, said: "When the regular judge yields the bench, calls in a special judge, and duly appoints him to try a designated cause, the special judge thus appointed acquires full authority over the cause throughout all of its stages, and the authority of the regular judge is necessarily excluded. In this instance, the regular judge could in no wise rightfully control or interfere with the proceeding of the special judge, for the latter was the sole and exclusive judge in the cause. He did not share power with the regular judge, for the authority of that judge was effectively excluded so far as concerned the particular case, and he could make no order affecting the case. It was for the special judge to determine whether the trial should continue until the end was reached, and this was not only his right but it was his duty under the law, for it declared by the statute that the special judge `shall have power to hear and determine *Page 72 said cause until the same is finally disposed of.' In our opinion the particular case where there is a special judge called in, with all its incidents from the beginning to the end, passes under the exclusive control and jurisdiction of the special judge, subject to revert to the control of the regular judge in the event that the special judge becomes incapacitated or refuses to act."
It is to be observed that the quotation above calls attention to the statutory provision that the special judge "shall have power to hear and determine said cause until the same is finally disposed of." By ch. 96, of the acts of 1905, Acts 1905 p. 164, as amended by ch. 81, of the acts of 1907, Acts 1907 p. 108, a different method of selecting special judges was provided for, but there was no repeal of this mandatory provision as to the continued and exclusive jurisdiction of the special judge over the particular case.
Not only is this the statutory law of the state, it is also the law as declared by our courts. We quote from Pottlitzer v.Citizens Trust Co. (1915), 60 Ind. App. 45, 108 N.E. 36, as follows: "When a special judge is regularly appointed and qualifies and assumes jurisdiction in a cause, he acquires full authority over the case throughout all its stages and the authority of the regular judge is necessarily excluded. The particular case in which such appointment is made, with all of its incidents from the beginning to the end, passes under the exclusive control and jurisdiction of the special judge."
As the majority opinion, infra, quotes from Carr v. Duhme (1906), 167 Ind. 76, 78 N.E. 322, we deem it advisable to examine the opinion in that case. We do not question the rule of law as quoted therefrom in the majority opinion as applied to the facts and circumstances there involved. But a rule of law must always be interpreted in the light of the facts to which it is to be applied. In the Carr case, the alleged want of jurisdiction *Page 73 in the lower court was predicated on the palpable disqualification of a member of a board of commissioners, resting upon the assumption that his participation rendered the action of the board entirely void. The court, discussing this contention, says: "If the participation of an interested member of the board so affects its jurisdiction as to make its judgment void, then the invalidity can not be cured even by consent of the parties; but if such improper action is a mere irregularity or error rendering such proceedings voidable only, the then disqualification and consequent error may be waived by failure to make seasonable objection to the same."
It is the law, then, as declared by the Supreme Court, that the invalidity of a void judgment cannot be cured even by the consent of the parties, but if the improper action of the judge, or his appointment, is a mere irregularity, rendering such proceeding voidable only, then such disqualification and irregularity may be waived by acquiescence.
The court in the Carr case then states the common-law rule to be that the disqualification of a judge because of interest in the subject-matter brought before him did not affect his jurisdiction, and his acting in the cause was regarded as a mere irregularity or error, on account of which, a timely recusation would afford ground for a reversal on appeal.
The court then calls attention to the fact that there is no statute in this state relating to the disqualification of commissioners, and prohibiting them from serving in matters in which they are interested, and that their actions are, therefore, governed by common-law principles. It follows, of course, from the foregoing, that the act of a member of a board of commissioners who is interested in the subject-matter and of the board would not be void but voidable, and the court properly so held. But that case is readily distinguished from the instant case. *Page 74 Here, after a special judge is appointed, both the statute and our decisions absolutely disqualify the regular judge from acting further and when he attempts so to act, he must be classified as a usurper, and his acts and judgments are absolutely void. As was said in Horton v. Howard (1890), 79 Mich. 642, 44 N.E. 1112, 19 Am. St. 198, as quoted in the Carr case, "The authorities are numerous, and nearly uniform, which hold that a judgment or decree rendered by a judge contrary to a statute like ours is void, and may be attacked collaterally." The Michigan statute is no more prohibitive than the statute and rule of law in this state.
The Carr case quotes with approval from Freeman, Judgments (4th ed.) § 146, as follows: "But the general effect of the statutory prohibitions in the several states is undoubtedly to change the rule of the common law so far as to render those acts of a judge, involving the exercise of judicial discretion, in a case wherein he is disqualified from acting, not voidable merely, but void." It then states the rule to be that when constitutional or statutory provisions forbid a judge from acting officially, his action is regarded as transgressing the public policy of the state.
In Board, etc., v. Justice (1892), 133 Ind. 89, 30 N.E. 1085, 36 Am. St. 528, the question involved was that of the validity of the action of a board of commissioners. One of them was disqualified because of interest, the same as in the Carr case, and, as in the Carr case, the action of the board was voidable and, no objection having been raised thereto at the proper time, it was held that such objection was waived. What was said in that case, as quoted in the majority opinion, was said with reference to the circumstances there involved.
In Whitesell v. Strickler (1906), 167 Ind. 602, 620, 78 N.E. 845, 119 Am. St. 524, the appointment of the special judge did not appear of record. There was no *Page 75 challenge that he had not been appointed in some way. There being no objection under such circumstances to the special judge sitting or to the regularity of his appointment, the right to object was waived, the judgment being only voidable.
In the case of Evans v. Rutherford (1921),76 Ind. App. 366, 371, 131 N.E. 55, a question involved was as to the regularity of the appointment of a special judge and it was held that it must be raised in the trial court or it is waived.
A judgment rendered by a special judge sitting under such circumstances is voidable only. So, in each and all of the long list of cases cited in the majority opinion. There being color or right to sit as judge, or it not appearing that the judge was, as here, disqualified, the only question involved was that of the regularity of the appointment. Under such circumstances, the judgment is voidable only, and any question as to the right of the judge to sit must be raised in the trial court. I do not question this rule, but it has no application to the facts of the case here involved. Here, it affirmatively appears that the regular judge had been excluded from all jurisdiction of the case and was wholly disqualified to act.
In Case v. State (1854), 5 Ind. 1, the court, speaking of the special judge, says he was no usurper, but supposed himself to be rightfully invested, and acted in good faith. This cannot be said of the judge who presumed to act in modifying the order of sale in the present case. He knew that he had been ousted from jurisdiction, and that he had no authority whatever to act.
In Stinson v. State, ex rel. (1869), 32 Ind. 124, an action was commenced in the common pleas court of Vanderburgh county, and a change of venue was taken from the judge, whereupon the case was set down for trial before the judge of the Vanderburgh Circuit Court, *Page 76 but, in the common pleas court, where a trial was had which resulted in a finding for appellee. A motion for new trial was filed, and the judge of the circuit court, his court being in session, overruled the motion and rendered judgment. It was held that the case still remained in the common pleas court, that it could only be acted on during a session of that court, and that the ruling on the motion for a new trial was made at a time when there was no power to act, and was void. In this case, the regular judge ruled when he had no power to act and his action was therefore void.
It was stated in the majority opinion, as originally prepared, that the regular judge was at least a de facto judge, and that, therefore, his acts were only voidable, but I do not so understand the law. In order to be a de facto judge, there must be a regularly constituted office, and a vacancy therein, before one appointed or elected to fill such office shall be denominated a de facto judge. Caldwell v. Barrett (1903), 71 Ark. 310, 74 S.W. 748, 750.
There was no vacancy here to be filled. It does not appear that the special judge was not ready to act in the case to which he had been appointed, nor that he would not have so acted had he been given opportunity so to do.
A de facto officer is one who exercises the duties of an office under claim and color of title, being distinguished on the one hand from a mere usurper, and on the other from an officerde jure. In this case, the regular judge did not and could not claim that he was exercising the duty which he presumed to perform under claim or color of title. He was absolutely disqualified of record. He was excluded from the jurisdiction of the case. He can only be classified as a usurper.
An officer de facto is one who comes in by the terms of law, and acts under a commission for election apparently valid but, in consequence of some illegality or incapacity or want of qualification, is incapable of lawfully holding *Page 77 the office. The distinction between a usurper and an officer defacto is that the former has no color of title to the office, while the latter has, by virtue of some appointment or election.Fitchburg R. Co. v. Grand Junction, etc., R. Co. (1861),83 Mass. 1 Allen 552, 557. In this case, by the terms of the law, the regular judge was excluded. In this case, the regular judge had no color of title to the office which he presumed to fill.
An officer de facto is one who executes the duties of an office under some color of right — from pretense of title — either by election or appointment. There must be a fair color of right or an acquiescence of the public in his official acts so long that he may be presumed to act as an officer by right of election or by appointment. State v. Quint (1902), 65 Kan. 144, 69 P. 171.
"The essential to the creation of an officer de facto is that his incumbency should not be legal, but that it should be exercised by some election or appointment attempted as of legal right, but invalid for want of power in the appointing body, or because of a defect in the election." And an officer so elected or appointed actually in possession of the office exercising its functions and acting under color of title, which means an apparent right to the office, is an officer de facto. CoquillardWagon Works v. Melton [1910], 137 Ky. 189, 125 S.W. 291, 292.
Under this definition of a de facto officer, the regular judge of the Grant Circuit Court had but one qualification, and that was that his incumbency was not legal.
Under these authorities and numerous other authorities that might be cited, it is apparent that the regular judge of the Grant Circuit Court was not even a de facto judge, that he must be classed in the role of a usurper, that, as such, his acts were absolutely void, and, therefore, subject to collateral attack.
Since the original opinion of the majority of the court *Page 78 to which this dissenting opinion was addressed, there appears to be some disposition to hedge, in that, while the original majority opinion held that the regular judge was at least a defacto judge, it is now held, without holding that he was a defacto judge, that his acts should be given as much consideration as a de facto judge. But, as it appears to me, this is but an attempt to dodge the issue. If the one who presumed to act was not a de facto judge, he could not be authorized to imitate one. The fact still remains that he had been excluded from all jurisdiction and authority, and his attempted rulings were absolutely void. The safe course for our courts to pursue, if they would hold the confidence and respect of the people, is to adhere strictly to the mandates of the law, without attempting in any way to sidetrack its plain provisions.