State ex rel. Peery v. District Court of Fourth Judicial Dist., 10853
| Decision Date | 06 April 1965 |
| Docket Number | No. 10853,10853 |
| Citation | 400 P.2d 648,145 Mont. 287 |
| Parties | The STATE of Montana, ex rel., Walter PEERY and Mabel Perry, Husband and Wife, Relators, v. The DISTRICT COURT OF the FOURTH JUDICIAL DISTRICT et al., Respondents. |
| Court | Montana Supreme Court |
Joseph M. Goldman (argued), Missoula, for relators.
E. Gardner Brownlee (argued), Missoula, Wellington D. Rankin (argued), Helena, for respondents.
This is an original proceeding seeking a writ of mandamus, or other appropriate writ. Relators alleged in their petition that they were plaintiffs in an action pending in the district court of the fourth judicial district, in and for the County of Ravalli, wherein they sought to quiet title to certain real estate. That on June 24, 1964, one of the relators filed an affidavit of disqualification against the Honorable Emmet Glore, one of the judges of the fourth judicial district, and concurrently filed an affidavit of disqualification against the Honorable E. Gardner Brownlee, another of the judges of that judicial district. That the Honorable E. Gardner Brownless as presiding judge, stating in his order that he was acting for himself and Judge Glore, filed an order quashing the affidavits of disqualification on August 18, 1964. That it was the duty of the respondent judges to honor the affidavits of disqualification and call in another judge from another judicial district in accordance with section 93-901, R.C.M.1947, and that Judge E. Gardner Brownlee was without jurisdiction to make and enter the order. That there is no appeal from said order and no adequate remedy except by an original proceeding. Relators prayed for the issuance of an alternative writ of mandate, or other appropriate writ. Relator further seeks damages by way of costs and attorney's fees.
This court heard counsel for the relators in an ex parte presentation, and, on September 17, 1964, issued an alternative order to show cause, returnable on September 24, 1964.
Judge Glore appeared by answer and return which admitted the pertinent parts of relators' petition except he denied the allegation that Judge E. Gardner Brownlee acted for him and alleged that he had not been advised of the making and entering of the order; that following notice of issuance by this court of the alternative order to show cause, he then being in Ravalli county and vested with jurisdiction, made and entered an order calling in the Honorable Eugene B. Foot, a judge of the eleventh judicial district, to assume jurisdiction. However, on September 21, 1964, Judge Foot signed an order refusing and declining to accept jurisdiction. Judge Glore also alleged that he was never requested to call in another judge to preside in the cause prior to the institution of these proceedings. Finally, he challenges the petition on the ground it fails to state facts sufficient to entitle relators to any relief.
Judge E. Gardner Brownlee appeared by answer, alleging that he believes he was vested with original jurisdiction when the affidavits of disqualification were filed on June 24, 1964, and therefore the judge who must take action with respect thereto; that he believes sub-section 4 of section 93-901, R.C.M.1947, as amended, to be unconstitutional; that a remedy is available to relators under sub-section 4 of section 93-2906, R.C.M.1947, providing that when a district judge refuses to call in another district judge after disqualification a motion for change of venue may be made.
Upon the return day the matter was argued and additional time granted to permit submission of additional authorities which have now been made available to the court.
Insofar as the respondent Judge Glore is concerned it appears that he did attempt to comply with the order to show cause, holding the belief that he was the judge vested with jurisdiction. His efforts were not successful and since Judge E. Gardner Brownlee believed he was vested with original jurisdiction when the affidavits of disqualification were filed, Judge Emmet Glore desisted from any further action in the matter.
In view of this situation this proceeding should be and is dismissed as to Judge Glore. Hereinafter the use of the term 'respondent's refers solely to Judge E. Gardner Brownlee.
Respondent, Judge E. Gardner Brownlee, contends that sub-section 4 of section 93-901, R.C.M.1947, is in direct violation of Article IV, § 1, of our Constitution, respecting distribution of powers, and Article VIII relative to jurisdiction of the courts.
It might be well at this point to consider the history of sub-section 1 of section 93-901.
Prior to 1903, section 180 of the 1895 Code of Civil Procedure provided:
'Sec. 180. No justice, judge, or justice of the peace, must sit or act as such in any action or proceeding:
'1. To which he is a party or in which he is interested.
'2. When he is related to either party by consanguinity, or affinity within the sixth degree, computed according to the rules of law.
'3. When he has been attorney or counsel for either party in the action or proceeding, or when he rendered or made the judgment, order or decision appealed from.
'But the provisions of this Section shall not apply to the arrangement of the calendar, or the regulation of the order of business, nor to the power of transferring the action or proceeding to some other court.'
Insofar as subsections 1, 2 and 3 are concerned they remain substantially the same to this day.
A special session of the Legislature was called in December of 1903, and by Chapter 3 of that session, section 180 of the 1895 Code was amended by adding thereto subsection 4, which read:
Hereafter, we will deal only with subsection 4 and as it was carried into the 1907 Code as part of section 6315.
In the 1909 Session of the Legislature it was amended by changing the number of judges who could be disqualified from five to two, and with this addition:
'If there be more than one judge in any judicial district in which said affidavit is made and filed, upon the first disqualification of a judge in the cause, another judge, residing in the judicial district wherein the affidavit is made and filed, must be called in to preside in such action, motion, or proceeding; and upon the second or any subsequent disqualification of a judge in the cause, a district judge of another judicial district of the state must be called in to preside in such action, motion, or proceeding, or the action, motion, or proceeding transferred to a district judge of another judicial district of the state.'
The subsection was carried into the 1921 Code as part of section 8868.
In the 1927 Session, Chapter 93 amended it with respect to the time of filing the affidavit to provide at least five days before the day appointed or fixed for the hearing or trial, and made provision for notice to counsel of the action taken by the court.
The subsection then became a part of section 93-901, R.C.M.1947.
By Chapter 218 of the 1961 Session Laws it was further amended to provide that in a judicial district having only one judge, the affidavit with reference to any jury case must be filed at least one day before the day of setting the trial calendar if notice of such setting date had been given by the clerk at least fifteen days prior thereto.
By Chatper 82 of the 1963 Session Laws it was further amended to provide that the affidavit in all other cases must be filed fifteen days before the day appointed or fixed for a hearing or trial.
Before proceeding to a discussion of the constitutional attack made upon section 93-901, we recognize respondent's assertion that since the statute has been many times amended, as we have heretofore indicated, statements with respect to its constitutionality made in earlier opinions of this court should not be accepted as establishing constitutionality of the statute as presently worded, and for that reason the doctrine of stare decisis should not apply.
However, as we have heretofore noted, the changes made by amendments through the years have in no way altered or changed the intent and purpose of Chapter 3 of the Session Laws of the Extraordinary Session of 1903. The number of judges who may be disqualified, provision for calling in another judge of the same judicial district, and the time of filing have been altered, but none of these amendments sought to defeat the original purpose of the disqualification law.
The reasons underlying enactment of the law were set forth in In re Woodside-Florence Irr. Dist., 121 Mont. 346, 194 P.2d 241, from...
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