The writ should be made permanent. The removal proceeding is no less adversary today with relator's written protest against removal on file presenting issues both of fact and law than it will be tomorrow upon motion to remand, if removal should be ordered in the meantime. Of course, the removal statute contemplates an ex parte hearing; but it does not prohibit an adversary one. When it becomes adversary, even before removal, the disqualification statute applies.
We held in State ex rel. Gandert v. Armijo, 41 N.M. 38,63 P.2d 1037, that the procural by petitioner of the ex parte order for recount of votes in certain election districts rendered untimely, within the doctrine of State ex rel. Shufeldt v. Armijo, 39 N.M. 502, 50 P.2d 852, a later affidavit by him seeking to disqualify the judge signing such order at his instance. If the discretion, though the proceeding be ex parte, is of sufficient importance that to procure its exercise will deny to the party invoking it the right later to disqualify the judge, it is equally effective to give to the party against whom its exercise is sought the right to forestall such exercise by the filing of an affidavit when his appearance has converted the proceeding from an ex parte into an adversary one.
The situation is not the same as where the trial judge, at the instance of a party later filing an affidavit, signs an order to show cause why a temporary restraining order should not be issued. In State ex rel. Tittmann v. Hay, 40 N.M. 370,60 P.2d 353, such an order had been procured by the party who later disqualified the judge by affidavit. But, as we observed in State ex rel. Gandert v. Armijo, supra, that circumstance was not relied upon as a ground of untimeliness in the case as presented to us. We further pointed out in the Gandert Case that there was a noticeable difference between a mere order to show cause and the situation presented in the instant case, as well as in the Gandert Case, in that in signing an order to show cause no relief whatever is granted, whereas, in the case at bar, as was true in the Gandert Case, the petition favorably acted upon does award positive relief. Indeed, in the case at bar an order of removal grants all the relief sought by the petition filed.
No weight is to be attached to the fact that the probateproceeding has not yet been transferred or removed into the district court. This is an attempt to disqualify the judge in theremoval proceeding. No one can dispute that it is pending in the district court. As a civil proceeding the disqualification statute is applicable. In view of our previous statements of the broad purpose of the disqualification statute, Laws 1933, c. 184, as recited in the opinion of Mr. Justice BICKLEY in the case at bar, I am unwilling to give to the statutory words extending its application *Page 75 to "any action or proceeding, civil or criminal," a narrow or technical meaning. I cling to the belief expressed by us in State ex rel. Simpson v. Armijo, 38 N.M. 280, 31 P.2d 703, that:
"When the Legislature enacted into the law the word `proceeding,' it must be assumed that it had in contemplation contempt proceedings as well as all proceedings whatsoever,which might be held not to fall within the denomination ofactions." (Italics supplied.)
"Statutes disqualifying judges for designated causes will be liberally construed." 33 C.J. 989, § 129, "Judges."
In re Jackman's Will Case, 27 Wis. 409, involved a change of venue statute. It was sought to confine it to "actions" and "civil actions." The court said: "We do not suppose any restricted or technical meaning is to be given to that term as here used. It is broad enough in its signification to include this proceeding for the probate of a will, and the whole reason and object of the statute will be most fully satisfied by holding that it applies to it."
Mr. Justice BICKLEY and Mr. Justice BRICE incline to the view that the disqualification statute is never applicable to the removal proceeding. Mr. Justice ZINN would permit the relator to disqualify the judge upon a motion to remand. Hence, upon discharge of this writ, if removal be ordered, we may reasonably expect to learn of another judge hearing a motion to remand or proposing to do so. Not unlikely the case will be right back with us on another prohibition proceeding. Such an anomalous situation could scarcely have been a matter of legislative intention.
Notwithstanding the view advanced in the opinion of Mr. Justice ZINN that the affidavit here filed is premature, some very practical district judge faced with a situation like that here shown may decide to hear the protest before ordering a removal. He may prefer, if there be good reason against it, to leave undone that which ought not to have been done. At least, he may wish to hear the parties before taking action. If he does, and orders removal, may the protestant, having lost at a hearing before removal, disqualify the judge on a motion to remand? Certainly not, if the Shufeldt decision is to stand. And certainly he can if an affidavit filed before removal is premature and hence a nullity. If power in the district judge to permit an adversary proceeding before removal be conceded, and I think his power so to do is unquestioned, then the efficacy of this affidavit is established.
Whether the mere filing of an affidavit in a probate matter would oust the resident district judge of jurisdiction to sit at large in the administration proceeding is not before us. It will raise a serious question when properly presented. The object of the statute would seem to be served if the effect of an affidavit so filed were confined to removing the resident *Page 76 judge from sitting in matters in which affiant's interests are to be affected. We are not now called upon to decide the question.
I thoroughly disagree with the conclusion of Mr. Justice BICKLEY and Mr. Justice BRICE that the removal statute, 1929 Comp., § 34-422 et seq., reposes in the district judges of the state an arbitrary and uncontrollable discretion in the matter of removals. The discretion which the district judge may exercise lies in determining whether grounds of removal exist. If they do, then, of course, the judge must order removal. He has no discretion to refuse it. Even if the law were as contended in this regard, it would be just another reason for holding the disqualification statute applicable. For a litigant to be unable to remove a judge believed to be prejudiced, particularly when his decision is to be final and not open to review, is scarcely calculated to support the philosophy of disqualification statutes like ours as appraised in our first decision under the statute, to wit: "The stimulation of public confidence in the integrity of the judiciary demands that the judge be not only actually fair minded, but above all suspicion to the contrary." State ex rel. Hannah v. Armijo, 38 N.M. 73, 28 P.2d 511, 515. (Italics supplied.)
The substituted judge, upon disqualification of the resident judge, as suggested, may be in a position (and contrary to the latter's wishes) to "dump the administration of the estate into the reluctant lap of such resident judge." But I apprehend it to be not contrary to the controlling legislative wish as read from the statute. I can more readily think of the Legislature as intending this, than as conferring power on a district judge to deny removal arbitrarily, capriciously, and for no reason whatever.
The relator is entitled to an order for a permanent writ. Because of a contrary conclusion by the majority, and for the reasons given, I dissent.
HUDSPETH, C.J., concurs.