I concur in the reasoning and in the result reached in the majority opinion, and in the concurring opinion of Judge FRANK.
I find additional reason for the concurrence in the language of Section 29, Article VI, of the Constitution, as follows:
"Sec. 29. Vacancy in office, disability — another circuit judgemay preside, etc. — If there be a vacancy in the office of judge of any circuit, or if the judge be sick, absent, or from any cause unable to hold any term or part of term of court, in any county in his circuit, such term or part of term of court may be held by a judge of any *Page 1080 other circuit; and at the request of the judge of any circuit, any term of court or part of term in his circuit may be held by the judge of any other circuit, and in all such cases, or in any case where the judge cannot preside, the General Assembly shall make such additional provision for holding court as may be found necessary."
It was never contemplated and that section of the Constitution does not warrant the inference that a judge who is disqualified to sit in a case because of having been of counsel in it, or a party to it, or for any other reason, should have the right to select the judge who should try the case. His disqualification to hear the case is a disqualification to select a judge who may hear it.
Under that section of the Constitution a judge of any circuit may bring in another judge to try a part of a term if he "be sick, absent, or for any cause unable to hold any term or part of a term, he may call in another judge." It is said that "unable" is not e jusdem generis with sick or absent, but may include a disqualification. That may be correct, yet the Constitution-makers evidently intended to attach a different meaning to the two expressions: "unable to hold court," and "inany case where the judge cannot preside." The difference is between inability to "hold court" at all and a "case" where the judge cannot preside, though he might be able to hold court.
The definition of "unable" in Webster's Unabridged Dictionary is "incapable." The word "able" in the same dictionary is given several meanings. The first two are obsolete; the third, is "having physical capacity;" the fourth, is having intellectual capacity or qualification; the fifth and last, having legal qualifications. The word "unable" may negative one or more of those qualifications, depending upon the context. As used in the first part of that section, it means incapable and not disqualified. A judge may be able to try a case, possess all the physical and intellectual capacities to do the job, and be disqualified by reason of interest in the case. One may be perfectly able to run a foot race, but barred from the competition because he is ineligible, and for that reason cannot run the race. It was held in Mahaffey v. Territory (Okla.),66 P. 342, l.c. 345, that the provision relating to a county attorney being "unable to attend to his duties," meant physical or mental incapacity; not incompetence, nor inexperience. A man may be perfectly able to pay a judgment against him, but cannot pay it because restrained by an injunction. Note the contrast in the terms: "If the judge . . . for any cause be unable to holdany term or part of a term of court." That applies to every case on the docket. He may call in another judge by whom theterm "may be held." But in order to provide for disqualification it is said "in any case where the judge cannot preside" the Legislature may make provision, which it has done by providing *Page 1081 for an agreement upon a special judge or an election. To emphasize the difference the latter part of the section provides for legislative action in both contingencies. "In all such cases" (cases of disability) "or in any case where the judge cannot preside" (meaning of course something different from all such cases of disability), the General Assembly may make additional provision.
Therefore I think the conclusion in the majority opinion is correct. Atwood, C.J., Gantt, Frank, Ellison and Henwood,JJ., concur in the above.