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JUDGE (See also BILL OF EXCEPTIONS; CHANGE OF VENUE; CONTEMPT; CORONER; COURTS; DE FACTO OFFICERS; EVIDENCE; INSTRUCTIONS; JURISDICTION; JURY AND JURY TRIAL; JUDICIAL NOTICE; JUSTICE OF THE PEACE; NEW TRIAL; OFFICERS (Public); TRIAL).

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I. DEFINITION.—A judge is a public

2. Disqualification at Common

Law, 41.

[42.

3. Disqualification by Statute, 4. Character of Disqualifying Interest, 45.

(a) Generally, 45.

(b) Interest as Citizen, 46.
(c) Interest as Corporation
Stockholders, 46.

(d) What Interest Disquali-
fies, 47.

(e) What Interest Does Not Disqualify, 48.

[50.

5. Void and Voidable Acts, 48.
6. Removal of Disqualification,
(a) Generally, 50.
(b) Consent of Parties, 50.
7. Disqualification in Decedents'
Estates, 51.

8. Disqualification for Preju-
dice, 52.

9. Disqualification for Relationship, 54.

10. Disqualification as Former Counsel, 55.

II. Practice, Evidence, etc., 57. ence,

officer appointed to decide litigated questions according to law; an officer so named in his commission and who presides in some court.1

1. Bouv. L. Dict.

Other Definitions.-A judge is a person whose office is to administer justice in courts held for that purpose; a public officer authorized by law to hear and

determine causes, and who holds courts statedly for that purpose. Burr. L. Dict.

A person who is invested with authority to hear and determine causes

II. GENERAL POWERS AND DUTIES-1. Personal Nature of Duties.A judge declining to preside may be compelled by mandamus, where there is no reason against his acting.1

Only judicial officers can exercise judicial powers or functions. Judicial offices must be exercised in person, and a judge cannot delegate his authority to another.2 The provisions of State con

civil or criminal, and to administer justice between parties in courts held for that purpose, according to his commission or according to law. Webster's Dict., cited by counsel in Com. v. Conyngham, 65 Pa. St. 76.

Judges Are Incident to Courts.-Under a power to establish courts, the legislature cannot maintain the office of judge except as incident to some court. Upon abolition of a court under valid statute, the judge's powers and functions, and his right to future salary, cease. Perkins v. Corbin, 45 Ala. 103,

118.

Members of Court Martials Sit as Judges." It is a general and sound principle that whenever the law vests any person with a power to do an act and constitutes him a judge of the evidence on which the act may be done, and, at the same time, contemplates that the act is to be carried into effect through the instrumentality of agents, the person thus clothed with power is vested with discretion, and is, quoad hoc, a judge." Vanderheyden v. Young, II Johns. (N. Y.) 158.

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Surrogate in New York Not a Judge.Not every official who exercises functions some of which are of a judicial nature is to be holden a "judge.' The surrogate in New York is not a "judge" within the limitation of seventy-year age in the New York constitution. Constitutions, which are general instruments framed for the reading by all classes of the commonwealth, are to have their language construed in a popular sense. People v. Carr, 100 N. Y. 236.

Highway Commissioners.-Statutory prohibition of "any judge" disqualified from acting was held not to apply to highway commissioners in the State of New York whose duties under statute were ministerial. Foot

57 N. Y. 399.

Stiles,

Canal Commissioners.-Canal commissioners who hear evidence and argument, assess damages, etc., constitute a court. Regina v. Aberdale Canal Co., 14 Ad. & El. N. R. 854; Dimes v. Grand Junction Canal, 3 H. of L. 759.

Justice of the peace is a "judge of any court" within the meaning of a disqualifying statutory provision. Carrington v. Andrews, 12 Abb. Pr. (N. Y.) 348; Edwards v. Russell, 21 Wend. (N. Y.) 63; Foot v. Morgan, 1 Hill (N. Y.) 654; Baldwin v. McArthur, 17 Barb. (N. Y.) 414, 423.

of

Justice and Judge. The word "justice" is frequently used instead "judge." Pa. Const., art. 5, § 5; 6 Vin. Abr. 484; Wheat. Dig. 127; 3 Com. Dig. 300; Ib. 386; 2 Bl. Com. Append. 111; Ib. 40; Ib. 41; 4 Inst. 73; 1 Pa. St. Laws, Appen. 58.

Senior Judge. That the senior judge is he who has served the longest under his present commission rather than another judge who may have been longest in continuous service, see State v. Hueston, 44 Ohio St. 1.

Chief Justice. The law of Nevada provides that the senior justice in commission shall be chief justice, and in case the commission of any two bear the same date they are to determine by lot who shall be chief justice. In Kentucky, the constitution provides that the judge having the shortest time to serve shall be styled the chief justice. And see the constitutions of Oregon, Michigan, Georgia, West Virginia, Mississippi, Missouri, California and Nebraska.

In 1886, in nineteen States, there was no provision for the selection of a chief justice, no such officer seeming to be known to the law.

1. State v. Judge (La.), 6 So. Rep. 22. Mandamus.-The rule in awarding mandamus at common law is that "it is not by the office of the person to whom the writ is directed, but the nature of the thing to be done, that the propriety of issuing a mandamus is to be determined. If mere ministerial duties are devolved on an officer, judicial or executive, he may be compelled to their performance." Thompson v. Holt, 52 Ala. 491; Tennessee etc. R. Co. v. Moore, 36 Ala. 371; Nichols v. Comptroller, 4 Stew. & P. (Ala.) 154.

2. Kent's Com. (12th ed.) 457; Vandercook v. Williams, 106 Ind. 345;

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stitutions specifying the courts to be created and the judges to officiate therein, must be strictly followed, and even the legislature cannot create a commission in aid of a court established by the constitution. Nor can the constitution be evaded by chang

Wilkins v. State, 113 Ind. 514; State v. Noble, 118 Ind. 350; Chandler v. Nash, 5 Mich. 410. See also 39 Alb. L. J. 242, 257, and authorities cited in , succeeding notes.

The reception of a verdict is a judicial act. Judicial power cannot be delegated. Reception of a verdict by an attorney whom the court, with the consent of the parties, had designated to receive it, is a nullity; the consent of the defendant cannot vest such judicial authority in the person selected to receive it. Attorneys, to hold court, must be appointed in the mode and for the causes prescribed by law. Britton v. Fox, 39 Ind. 369; McClure v. State, 77 Ind. 287.

Where a judge telegraphed to the clerk to discharge a jury and it was so done, it was held error, and the prisoner was entitled to discharge. State v. Jefferson, 66 N. Car. 309.

1. Vandercook v. Williams, 106 Ind.

345.

In delivering the opinion of the court ELLIOTT, C. J., said: "The assumption that the supreme court can perform its judicial duties through the medium of masters in chancery or master commissioners, or persons charged with duties like those performed by masters in chancery and master commissioners is without foundation. If it cannot thus perform judicial duties, it can perform none, for its duty and its power are exclusively judicial. The supreme court must decide for itself all questions of law and of fact. The facts must be gathered from the record by the court itself, and cannot be obtained from any other source or by any other persons than the judges. It is a court of errors, an appellate tribunal charged with the duty of deciding cases upon the record, and this duty cannot be performed by deputies. Independently of any constitutional provisions, this would be so, because judicial powers cannot be delegated. This principle has been established for ages. CHANCELLOR KENT thus states this familiar rule: 'The general rule is that judicial offices must be exercised in person, and that a judge cannot delegate his authority to another. I do not know of any exception to this rule with us.' 3 Com. (12th ed.)

son.

457; Broom, Leg. Max. 841; Campbell
v. Commrs. of Monroe Co., 118 Ind.
119 (March 26th, 1889); Hards v. Bur-
ton, 79 Ill. 504. Those who are chosen
by the people to sit as judges must
themselves discharge all the judicial
duties of their offices. The trust is
imposed upon them and they cannot
share their judicial duties with any per-
The people have a right to the
judgment of those whom they have
made judges, and this right the judges
cannot surrender, if they would, with-
out a flagrant breach of a sworn duty.
The trust is a personal one, inalienably
invested in the persons selected by the
people, and it cannot be delegated by
the judges themselves, nor by anyone
else for them. It is only the appointed
judge,' says CHIEF JUSTICE RYAN,
'who can speak the authoritative words
of the law."' Van Slyke v. Trempea-
leau Co. Farmer's F. Inc. Co., 39 Wis.
390. But centuries before, and at a
time when the king was the fountain of
judicial power theoretically, and sat in
the courts of law and equity, SIR ED-
WARD COKE even more emphatically
stated the rule. Said that gladsome
light' of jurisprudence, 'the judicature
only belongeth to the judges.' 4 Inst.
73. MATTHEW BACON said: 'The
king himself, though he be entrusted
with the whole executive power of the
law, cannot sit in judgment in any
court, but his justice and the laws must
be administered according to the power
committed to and distributed among his
several courts of justice.' 2 Bac. Abr.
619. Again we quote from this high
authority, who, speaking of the judges,
says: "They cannot act by deputy, nor
in any way transfer their power to an-
other.' Id. 620. The theory of our
governmental system, as embodied in
our constitution, requires that the per-
sons to whom the people have entrusted
the judicial power shall themselves ex-
ercise it, and not entrust its exercise to
others.
others. . . . A duty imposed upon
a department of government must be
performed by the chosen officers of that
department, and it can neither be dele-
gated nor surrendered. Cooley Const.
Lim. (5th ed.) 116-139. Where a spe-
cific duty is imposed upon a tribunal, by
that tribunal it must be performed with-

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ing the name of an office, or dividing its duties, assigning them to additional officers under different names, or appointing officers in any manner except as authorized by the constitution.1 The legislature may multiply some of the officers who are, by the constitution, vested with judicial powers, but, when this is done, it is the constitution which vests the power. So, judicial functions of a subordinate nature may be granted by the legislature to others than the regularly elected judge, subject to his supervisory control.3

2. Judicial and Ministerial Acts (a) Nonjudicial Duties.-The courts cannot be controlled by the legislature in matters strictly within their own province. But other than judicial duties have often been entrusted to the judges. Ministerial acts do not become judicial acts because performed by a judicial officer.4 Failure to perform a duty distinct from those judicial, was held in Kansas not to forfeit the judicial office.5 Acts ministerial and not judi

out calling anyone to perform it or as-
sist in its performance. Conroe v. Bull,
7 Wis. 408; Kearns v. Thomas, 37 Wis.
118; Attorney-General v. McDonald,
3 Wis. 805." State v. Noble, 118 Ind. 350.
1. People v. Albertson, 55 N. Y.
50.
See also Warner v. People, 2 Den. (N.
Y.) 272; People v. Draper, 15 N. Y.
532; People v. Keeler, 29 Hun (N. Y.)
175; State v. Brunst, 26 Wis. 412; King
v. Hunter, 65 N. Car. 603; s. c., 6 Am.
Rep. 754; State v. Noble, 118 Ind. 350.
See also CONSTITUTIONAL LAW, vol 3,
p. 693; Harris v. Vanderveer, 21 N. J. Eq.
424; Hutkoff v. Demorest, 103 N.Y. 377;
State v. Gennaway, 16 Lea (Tenn.)
124; Landers v. Staten Island R. Co.,
53 N. Y. 450; In Matter of Application
of Senate, 10 Minn. 78; In Matter of
Senate, 9 Col. 623; Alexander v. Ben-
nett, 60 N. Y. 204. ELLIOTT, C. J.,
said: "The question which faces us is
not one of discretion, but of imperative
duty.... Judges are chosen for
the purpose of maintaining the limita-
tions of the constitution, without which
free government cannot exist." State v.
Noble, 118 Ind. 350. See also Kilbourn
v. Thompson, 103 U. S. 168; People v.
Keeler, 99 N. Y. 463, 52 Am. Rep. 49;
Greenough v. Greenough, 11 Pa. St.
489; Missouri River Tel. Co. v. First
Nat. Bank, 74 Ill. 217; Perkins v. Cor-
bin, 45 Ala. 103; Lieber Civil Liberty
154; Montesquieu Spirit of Laws 33;
Ingersoll Fears for Democracy 23; Wil-
son Congressional Government 12, 36;
3 Burke's Works 110; 1 Bryce American
Commonwealth 31, 429.

2. State v. Maynard, 14 Ill. 419.
also Shoultz v. McPheeters, 79

See
Ind.

373; Gregory v. State, 94 Ind. 384; Little v. State, 90 Ind. 338; Pressley v. Lamb, 105 Ind. 171; Kuntz v. Sumption, 117 Ind. and authorities cited in Preesley v. Lamb, 104 Ind. 171, 186; Smythe v. Boswell, 107 Ind. 365; Campbell v. Board of Monroe Co., 118 Ind. 119; Hall v. Marks, 34 Ill. 358; Ex parte Griffiths, 118 Ind. 83.

3. Young v. Ledrick, 14 Kan. 92, BREWER, J., saying: "Thus, the legislature has authorized the trial of certain cases before referees. No question has been, none can well be made, as to the validity of such legislation. Yet here is an officer other than the judge who is exercising judicial functions in cases in that court. So also, at common law, the sheriff exercised judicial functions.

In our own proceedings under the occupying claimant act may be found something of the same nature." Proceedings in aid of execution were held by the court to be of such subordinate character.

4. People v. Bush, 40 Cal. 344; People v. Provines, 34 Cal. 520.

5. State v. Brown, 35 Kan. 167, holding that failure of probate judge to examine funds of county treasurer did not afford ground for removal from the office of judge; although it might perhaps furnish a reason for divesting him of such distinct nonjudicial authority. See also State v. Laughton, 19 Nev. 202, where it was held that a lieutenantgovernor who was by statute made ex officio state librarian did not forfeit the lieutenant-governor's office by forfeiture of that of librarian through fault in bond; as the two offices are distinct.

In the note, a great

cial are not reviewable by certiorari.1 many powers other than those of a judicial nature are mentioned as having been vested in judges. Examination of these cases will show that in rude, imperfectly developed periods, the county or sessions courts have been constituted a quite active part of the police or governmental power in the counties, having devolved on them the duty or authority to erect houses of correction, to establish ferries, roads and bridges, to act as trustees of town sites, to regulate militia supplies, to issue liquor licences, to solemnize marriages or grant licences therefor, to organize corporations, to take acknowledgments, etc.

1. People v. Bush, 40 Cal. 344, applying the rule to the case of appointment by county judge of a supervisor. "If the writ in this case can be maintained, on the ground that the order sought to be reviewed was made by a county judge, then upon the same ground this court may, upon the writ of certiorari, cancel an acknowledgment of a deed or annul a marriage."

2. Court of sessions in Massachusetts were agents and representatives of the county in all matters touching its finances and general and prudential concerns, and its acts and admissions were binding upon the inhabitants. Hampshire Co. v. Franklin Co., 16 Mass. 76. Mandamus would lie to compel this court to erect or provide a house of correction. Commonwealth v. Sessions of Hampden, 2 Pick. (Mass.) 415. This court, previously to its abolition, was authorized to establish ferries. Fay Petitioners, 16 Pick. (Mass.) 243. In Maine, this court had authority to lay out and maintain roads. Emerson v. Washington, 9 Greenl. (Me.) 92. Powers of justices of the peace holding county court in Tennessee, to transact county business and receive and appropriate moneys of the county. See Coleman v. Smith, Mart. & Yerg. (Tenn. Rep.) 36. In Virginia, county courts have authority, and may be compelled by mandamus, to build bridges across public roads. Brander v. Chesterfield Justices, 5 Call (Va.) 548. And to impose county levies. Case of the County Levy, 5 Call (Va.) 139. In Alabama, to authorize the erection of toll bridges and to licence ferries. Dyer v. Tuska loosa Bridge Co., 2 Port. (Ala.) 296. In Mississippi, to settle and allow claims against the county and to levy a tax in payment, and may be compelled thereto by mandamus. Madison Co. Court v. Alexander, Walker (Miss.)

of the

523. In Kentucky, justices
peace may levy county tax. Gilbert v.
Huston, 6 Litt. (Ky.) 223. In Connecti-
cut, the county court has power to act
in the demise of a county house. Buell
v. Cook, 4 Conn. 238. As to powers of
a probate judge in regard to town sites
under Montana Code Civ. Proc., § 6,
see Hartman v. Smith, 6 Mont. 295. In
Oregon, the county judge has discre-
tionary power of allowing or disallowing
arms and accoutrements out of county
funds to a militia company. Vincent v.
Umatilla Co., 14 Oreg. 375.

Liquor Licences.-The issuing of liquor licences may be cast on judges. Intoxicating Liquor Cases, 25 Kan. 751. (There was no evidence of the duty by the judge, nor was that question raised.) In Pennsylvania, under the Brooks High Licence act of 1887, the judges grant retail and wholesale liquor li

cences.

Kansas. It has been repeatedly held in Kansas that the legislature may confer new duties-judicial, quasi judicial, or ministerial, on probate courts or probate judges of that State, aside from the ordinary powers conferred by the constitution. State v. Brown, 35 Kan. 167, 169; In re Johnson, 12 Kan. 102; Young v. Ledrick, 14 Kan. 92; State v. Majors, 16 Kan. 440; Intoxicating Liquor Cases, 25 Kan. 751.

Many illustrative instances have been grouped in Re Johnson, 12 Kan. 103. Thus they have been authorized to take acknowledgment of deeds; issue marriage licences; solemnize marriages; organize corporations, such as colleges, universities and other institutions for promoting education, religion, morality, agriculture, manufacturing, or the fine arts; organize municipal corporations (Kirkpatrick v. State, 5 Kan. 673, 677), hold criminal courts (Miller v. State, 2 Kan. 175, 180, 183; Rice v. State, 3

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