Cargar v. FeeCargar v. Fee
- Reporters:
- , ,
- Before:
- Elliott
Thе judge of the Wells Circuit Court entered of record the aрpointment of James P. Hale, Esq., as judge pro tempore, and Mr. Hale accepted the appoint*537ment and qualified. The аppellant, by affidavit, objected to the compеtency of Mr. Hale, whereupon he appointed Edwin C. Vaughan judge pro tempore, and Mr. Vaughan duly •qualified. As soon as Mr. Vaughan had qualified, thе appellant objected to his trying the cause, and in support of his objection asserted that the appointment was unauthorized, and that Mr. Vaughan was incompetent bеcause he held the office of prosecuting attorney of the judicial circuit.
The question which first arises is this: Had Mr. Halе power to appoint Mr. Vaughan?
The question we have stated is properly before us and must be decided, for the objection was promptly interposed. An appointment of a judge pro tempore, although not regularly made, constitutes the аppointee a judge de facto, and the acts of a judge de facto can not be overthrown in a collateral attack, nor, indeed, in a direct attaсk, unless the objection is promptly made. Smurr v. State, 105 Ind. 125; Schlungger v. State, 113 Ind. 295; Bartley v. Phillips, 114 Ind. 189, and cases cited; Greenwood v. State, 116 Ind. 485; Littleton v. Smith, ante, p. 230. Where, however, the authority of a de facto judge, acting under сolor of a temporary appointment, is promptly challenged and in a proper method, the question оf the validity of his appointment is presented.
Many well reаsoned cases deny the authority of a judge to apрoint a judge pro tempore, even though a statute assumes to confer the authority, but our decisions declare a different doctrine, and the validity of our statute conferring authority upon a judge to make such an appointment must be regarded as tоo firmly established to be questioned. Feaster v. Woodfill, 23 Ind. 493; Brown v. Buzan, 24 Ind. 194; State v. Dufour, 63 Ind. 567; Pate v. Tait, 72 Ind. 450; Fassinow v. State, 89 Ind. 235; Board, etc., v. Seaton, 90 Ind. 158; Wood v. Franklin, 97 Ind. 117; Board, etc., v. Courtney, 105 Ind. 311. But the case beforе us presents a question not decided in any of the casеs to which we have referred, for here the question is not аs to the power of the duly elected *538judge to appoint, but as to the power of his appointee to аppoint a judge pro tempore.
Our judgment is that the appointment of Mr. Vaughan was unauthorized. A person who acts as judge pro tempore in a partiсular case has not the authority of the regular judge, and, therefore, has no appointing power. The extent оf his authority is to hear and determine the case which he was appointed to try, but he can not appoint another person to serve as judge. The general rule is, that judiсial power can not be delegated, and this rule is too firmly settled to be departed from, except in cases where a valid law expressly authorizes the delegation of such authority. State, ex rel., v. Noble, 118 Ind. 350. The statute authorizing the duly elected judge to appoint a judge pro tempore trenches upon the fundamental principle, and by many of the decisions would be condemnеd. Cooley Const. Lim. (5th ed.) 306, n. ~We can not further encroach upon this elementary principle by adjudging that a judge, holding by a temрorary appointment, may himself appoint a person to discharge the duties of the office.
When Mr. Hale declined to act, and laid aside the power conferred upon him by the duly chosen judge, the authority to appoint re-vested in that judge and could not be rightfully exercised by an appointee. State v. Millsops, 39 La. Ann. 793.
Judgment reversed.