State v. Roberts
| Decision Date | 07 June 1930 |
| Docket Number | 29,337 |
| Citation | 288 P. 761,130 Kan. 754 |
| Parties | THE STATE OF KANSAS, Appellee, v. LLOYD ROBERTS, Appellant |
| Court | Kansas Supreme Court |
Decided January, 1930.
Appeal from Sumner district court; E. J. TAGGART, judge pro tem.
Judgment affirmed.
SYLLABUS BY THE COURT.
1. JUDGES--De Facto Judge--Who May Question. Where a defendant in a criminal case has been tried, convicted and sentenced by a judge pro tem. he cannot be heard to question the legality of the election, the title of the judge pro tem. to the office, the right of such judge to proceed with the trial of his case, or the validity of his acts, and any attempt on his part by objection or motion during the progress of the trial is a collateral attack and not subject to review. The state itself, or one on whom the state has conferred the office, are the only ones authorized to institute proceedings to raise these questions.
2. SAME--De Facto Judge--Validity of Acts. Regardless of the legality of the election of a judge pro tem., if he assumes the duties of the office, is accepted and reputed as being such officer by the bar and public authorities, and is in possession of the office under a fair color of title thereto, he is a de facto judge, and his official acts are valid and effectual as far as they concern the public or the rights of third persons, until his title to the office is held insufficient in a regular proceeding for that purpose.
3. JUDGES--Disqualification. A newly appointed district judge may very properly consider and hold himself disqualified to hear a motion for a new trial where he had, prior to his appointment, been consulted as an attorney in a companion case to the one on trial, and such disqualification justifies the election of a judge pro tem. under R. S. 20-305.
H. S. Hines, of Arkansas City, Burt Comer and Harold H. Malone, both of Wichita, for the appellant.
William A. Smith, attorney-general, R. O. Mason, assistant attorney-general, and Bert E. Church, county attorney, for the appellee.
The appeal in this case is by the defendant in a criminal case, where he was convicted of being a persistent violator of the liquor law, and he assigns as errors the election of a judge pro tem. to try the case when the district judge had died before the election and the trying of the case before such judge pro tem. and the overruling of the motion for a new trial and the pronouncing of judgment and sentence upon him by a judge pro tem. elected after the appointment and qualification of a district judge to fill the vacancy.
The undisputed facts are that Hon. L. H. Finney, district judge of the twenty-fifth judicial district of Kansas, which includes the county of Sumner, where this case was pending and later tried, died August 31, 1929; that Hon. E. J. Taggart was elected judge pro tem. on September 3, 1929, and duly opened court in Sumner county that day, and duly adjourned court until October 7, 1929, when this case was tried and a verdict returned; that the governor appointed Hon. Wendell Ready as district judge to fill the vacancy on October 21, 1929, and he qualified the same day; that on October 28, 1929, Hon. E. J. Taggart was elected judge pro tem. to hear the motion for new trial after Judge Ready had entered his disqualification to sit by reason of having been consulted in a companion case; that the defendant by his counsel objected to Hon. E. J. Taggart sitting as judge pro tem., also to a trial of the case before him as judge pro tem. or de facto judge, and to the introduction of any testimony, and moved the court to discharge the defendant, which objections and motions were overruled. That he objected on October 28 to the disqualification of Judge Ready and the election of a judge pro tem. and to the hearing of the motion for new trial before the judge pro tem. reelected at that time, who overruled the objections and heard and overruled the motion for new trial and pronounced sentence on defendant. This enumeration of objections and motions made is here noted to show that defendant did not waive any of his rights by silence or acquiescence, but from the very beginning of the case made timely objections to raise and preserve the points he is now presenting on review.
Appellant urges that R. S. 20-305 to 20-311 authorize and permit the election of a judge pro tem. only when the presiding judge is sick, absent or disqualified, and would not be applicable where he was deceased, and that in case of his death or resignation there is a vacancy which under the constitution (art. 3, § 11) must be filled by appointment to be made by the governor, citing Keys v. Keys, 83 Kan. 92, 109 P. 985, Golden v. Mitchell, 107 Kan. 1, 190 P. 785, and other authorities to sustain his contention. The judges pro tem. in both of these cases cited were elected as such while the presiding judges were living but absent on account of illness, which would bring the election within the provision of the statute, but in both cases the acts of the pro tem. judges, after the death or resignation of the respective judges and until the appointment of their successors, were approved and sustained because of their having been de facto judges.
It is suggested but not urged that in the case at bar the deceased judge might within the meaning of the statute be considered absent so as to authorize and justify the election of a judge pro tem., but such proposition does not merit discussion. (1 C. J. 344.)
The contention of the appellant may readily be conceded that the election of a judge pro tem. in this case was not within the provisions of the statute (R. S. 20-305), but whether properly and legally elected or not, he assumed the duties of the office, was accepted and reputed as being such officer, and was in possession of the office under a fair color or title thereto, which would make him a de facto officer regardless of the legality of his election.
"The acts of an officer de facto are as valid and effectual where they concern the public or the rights of third persons, until his title to the office is judged insufficient, as though he were an officer de jure, and the legality of the acts of such an officer cannot be collaterally attacked in a proceeding to which he is not a party." (46 C. J. 1060, 1061.)
In the case of Parvin v. Johnson, 110 Kan. 356, 203 P. 721, the judge pro tem. failed to take the oath required by statute (R. S. 20-308), and it was there said:
"One who exercises the powers and duties of judge pro tem. under an election by the bar of the...
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