The opinion
Sharpstein, J., concurring:
I think, upon the facts alleged in the petition, and not denied by the respondent, that he is shown to be interested in the action which the petitioner seeks to have him prohibited from sitting or acting in. If so, the code declares that he shall not sit or act in it. The petition shows that he owns land which must necessarily be damaged by the mining operations of the defendant complained of in said action, if the land of plaintiff therein is damaged by said mining operations. The rights of plaintiff, for which it asks protection, pertain equally to the respondent. The grievance of which the plaintiff complains is one of which the respondent might complain upon the same grounds. If the plaintiff can maintain the action now pending in the Superior Court, of which *326 the respondent is Judge, he might maintain an action based upon the same grievance. He might have united with the plaintiff in bringing this action; or he may intervene in it at any time before the trial, on the ground that he is interested in the success of the plaintiff.
The more embarrassing question is whether the petition presents a case in which it is proper to grant a writ of prohibition to prevent the respondent from sitting or acting in said action. That writ is defined by the code to be “ the counterpart of the writ of mandate. It arrests the proceedings of any tribunal, corporation, board, or person, when such proceedings are without or in excess of the jurisdiction of such tribunal, corporation, board, or person.”
The action is one of which the Superior Court, of which the respondent is Judge, has jurisdiction, and it is not alleged that jurisdiction of the persons of the defendants has not beeen duly acquired. It is, therefore, not a case in which any tribunal is acting or proceeding without jurisdiction or in excess thereof. And it may be, although the decisions are conflicting upon the question, that the judgment, if one should be entered in the action, would not be void by reason of the disqualification of the Judge to sit in it. All agree that it would be voidable at least. But if the Judge is interested in the action he has no right to sit or act in it. No more right than he would have to sit or act in an action pending in the Superior 'Court of a county other than the one of which he is elected Judge, without being requested by the Judge of that Court, or by the Governor so to do. His sitting or acting in an action in which the law declares he shall not sit or act, would seem to be without jurisdiction. Jurisdiction is: “ The authority by which judicial officers take cognizance of and decide causes. Power to hear and determine causes.” (Bouvier, Tit. “ Jurisdiction.”) Now a Judge who is interested in in an action, not only has no authority to hear and determine it, but he is expressly prohibited from doing so. I am aware of the rule by which this Court is precluded from determining the title of a Judge to his office, upon an application of this nature. While in the actual possession of the office of Judge of a court the judgments and orders of a Judge de facto, are not void, nor even voidable, on the sole ground of *327 his not being a Judge de jure. But all the cases seem to agree that the judgments and orders of a Judge made by him in an action in which he is interested are voidable, while many hold that they are void, being in contravention of public policy. The bare fact of a Judge sitting in an action in which he is interested is sufficient ground for the reversal of any judgment or order that he may make in that cause. That would seem to indicate that a Judge so interested would act without or in excess of his jurisdiction. If I am correct in this, the fact of a motion for a change of the place of trial, having been made and denied, is an immaterial circumstance.
It is suggested, however, that the petitioner has a plain, speedy, and adequate remedy in the ordinary course of law by appeal from the order denying that motion. The Code gives it that remedy, but is it speedy and adequate ? An appeal from that order would not stay proceedings, and the action might be tried before the appeal could be perfected. Therefore the remedy by appeal is not adequate. A party has a right to have his case heard and determined by a Judge who is not disqualified by interest from hearing and determining it. And if an interested Judge can not be prevented from hearing and determining an action in which he is interested by any other remedy than that which is here sought, then there is no other adequate remedy for that wrong. The proceedings can not be arrested in any other way, and the petitioner has a right to have them arrested, if they are without or in excess of the jurisdiction of the respondent.
An adequate remedy in a case like this would have to be one by which the proceedings of the respondent would be arrested. I know of no other than the remedy prayed, by which that object could be accomplished. Therefore, I concur in the order overruling the demurrer.
Myrick, J., concurring:
I concur in the order overruling the demurrer, for the reasons stated by Mr. Justice Ross; but I wish to be distinctly understood as not expressing, directly or indirectly, the view that this will affect the injunction issued by the Court below or the order granting the .same. My concurrence is to the *328 extent of prohibiting Judge Keyser from sitting further in the case, if no answer shall be made denying his alleged disqualification.