Harper v. Jacobs

• Decision Date: 31 January 1873
• Citation: 51 Mo. 296
• Parties: E. W. HARPER, Respondent, v. FRANCIS JACOBS and HARRIET JACOBS, Appellant.
• Court: Missouri Supreme Court

51 Mo. 296

E. W. HARPER, Respondent,

v.FRANCIS JACOBS and HARRIET JACOBS, Appellant.

Supreme Court of Missouri.

January Term, 1873.

1. The act of February, 1870 (Sess. Acts 1870, p. 200, § 15) authorizing the appointment by the Judge of Jasper Common Pleas Court of an attorney at law to act as judge pro tem in certain cases, is not unconstitutional as failing to provide an oath of office to be taken by the attorney before trying such cause. (See Const. Art. II, § 13.) Nor is it contrary to that provision of the constitution providing for the establishment of different courts and tribunals, (Const. Art. VI, § 1.) Under that instrument, the legislature would have no power to author; ize the substitution of an attorney to sit in a particular case in the Circuit Court but such restriction does not extend to an “inferior tribunal” like the Jasper Court of Common Pleas.

Appeal from Jasper Common Pleas.

L. P. Cunninghum, for Appellant.

I. The application for a change of venue, if considered at all, must be either sustained or overruled, and if sustained, a change of venue should have been awarded to another court. (W. S., 1356, § 4.) It was not transferring the cause to another court or awarding a change of venue in any sense, to simply substitute another person for the Judge as was done.

II. The court had no authority to appoint any person to act as Judge, and sit as a court for the trial of the cause. A ministerial office may be deputed, but a judicial office cannot be. (Lewis vs. Lewis, 9 Mo., 187; 3 Kent Com., 615; Winchester vs. Ayers, 4 Greene, (Iowa) 104.) A Judge is to be elected by the people or appointed by the governor. (Const. of Mo., Art. V, § 25; Sess. Acts of 1870, p. 201, §§ 19, 21 and 27.)

III. It is urged that section 15 of the act establishing the court of Common Pleas--Laws of 1870, page 201 confers power to appoint a Judge pro tem who shall be authorized to hear and determine a cause. The appellants insist that this section is controlled by other sections of the same act, sections 5, 6, which made it imperative to award a change of venue to another court, and that section 15 taken by itself, is wholly unconstitntional and inoperative. (Const. of Mo., Art. V, §§ 8, 25; Winchester vs. Ayers, 4 Greene, (Iowa) 104.)

IV. The points made by the respondent are not sustained by the authorities which he relies upon. The decisions in Indiana cited, were made upon a different state of facts, and under a constitution entirely different from that of Missouri. (Const. of Ind., Art. VII, § 10.)

N. Bray, for Respondent, cited Winchester vs. Ayres, 4 Greene, (Iowa,) 104.

EWING, Judge, delivered the opinion of the court.

This was an action instituted in the court of Common Pleas of Jasper County to foreclose a mortgage. Before answering the petition defendants made an application in the usual form for a change of venue, on the ground that plaintiff had an undue influence over the mind of the Judge of said court, and that said Judge was prejudiced against the defendants.

Pending this application, the Judge, by an order duly entered of record, appointed William H. Phelps, a duly licensed Attorney at Law, Judge pro tem, to sit on the trial of said cause. To this action of the court defendants excepted. The cause was heard by said Phelps, defendants not appearing at the trial and judgment rendered for plaintiffs.

Motions for a new trial, and in arrest of the judgment were filed, alleging as error the action of the court above stated; which being overruled defendants excepted, and bring the cause to this court by appeal.

It is maintained, that the action of the legislature authorizing the appointment of a Judge, pro tem, is unconstitutional

The act in question provides, that whenever in any caus an application shall be made for a change of venue, for the rea son that the Judge is interested or prejudiced, or is related to or has been of counsel in the cause for either party, or that either party has an undue influence over the mind of the Judge; it shall be lawful for the Judge to appoint by an order of record, any duly licensed Attorney at Law of this State Judge pro tem for the trial of the particular case specified in said order. Said Judge so appointed, shall possess during such trial and in relation thereto only, all the powers, perform the duties, and be subject to the same restrictions as the Judge of said court. (Sess. Acts of 1870, p. 200, § 15.)

This provision occurs in an act approved February, 1870, which is amendatory of an act to establish a court of Common Pleas in Jasper County.

The provision of the constitution with which this act is supposed to be in conflict, is that requiring every person elected or appointed to any office before entering on its duties, to take and subscribe the oath therein specified. (Const. of Mo., Art. II, § 13.)

The argument of counsel assumes that the omission to provide for such an oath in the act, invalidates it; that the Attorney who is appointed under it to sit in a particular case, is an officer in the sense of the clause in the constitution referred to, and that as the record is silent in regard to an oath, being taken or not, it is to be presumed that no such oath was in fact taken by the Attorney who tried the case. If the theory that the Attorney who tried the case, was a judicial officer, and as such, under like obligations with other judicial officers to take an oath, be correct, the absence of any provision in the act on the subject is wholly immaterial, and it would, have been superfluous if there had been any such requirement. For the constitutional requirement on...