OWEN, JUDGE.

The decision in this case was filed January 21, 1910. On February 17, 1910, petitioner filed his application for rehearing.

There is no contention made that the original decision is erroneous as to the holding that the act of the Legislature (Sess. Laws 1909, p. 167) providing for the disqualification of judges is in effect notwithstanding the failure of the Legislature to attach the enacting clause. It is urged here that section 5 of this act is in conflict with the Constitution, because it prescribes an unreasonable remedy, which in effect deprives the defendant of his right to a trial without prejudice. As to whether the procedure prescribed is calculated, in some instances, to work a hardship on the party complaining, is not a matter to be determined by this court. That question was determined by the Legislature. The question for this court to determine is whether the section is in conflict with the Constitution, and whether the petitioner was bound to comply with its provision before he could pray for relief in this court. The language of the section is as follows:

"Sec. 5: Any party to any cause pending in a court of record may in term time or in vacation file a written application with the clerk of the court, setting forth the grounds or facts upon which the claim is made that the judge is disqualified, and request him to so certify, after reasonable notice to the other side, same to be presented to such judge, and upon his failure so to do within three days before said cause is set for trial, application may be made to the proper tribunal for mandamus requiring him so to do."

It was urged by counsel for the petitioner in the oral argument that in this state a plaintiff in a criminal case has the constitutional right to be tried before a judge without prejudice, and that when his affidavit is filed, alleging prejudice of the judge, that he is not bound to comply with the provisions of this act, and that his failure to do so is not a waiver of his constitutional right of a fair trial; that he cannot waive a constitutional right. With this contention we cannot agree. The Legislature had the right to regulate the method of obtaining a fair trial. Boneparte v. U.S., ante, p. 345, 106 P. 347. If the mere filing of the affidavit would per se disqualify a judge, and there was no method of determining this question before trial, a defendant whose conscience would permit him to make the affidavits to each succeeding judge could never be brought to trial. It is no answer to say only one change of judge is permitted by statute. This statute cannot deprive a defendant of his right to a trial before a judge without prejudice, and under the constitutional guaranty of this right any judge elected or appointed to take the place of the regular judge may be disqualified, but the method prescribed by the Legislature must be followed. His right to be tried before a judge without prejudice is a personal right, and the doctrine is well settled that a personal right or privilege can always be waived. A party may waive any provisions, either of a Constitution or a statute, intended for his benefit. Farmers' Nat. Bk. v. McCall (Sup.) 106 P. 866; Armfield v. Brown, 70 N.C. 27; Hahn v. Brinson, 133 N.C. 7, 45 S.E. 359.

A well-considered case on this question is that of Mehlin et al. v. Ice, 56 F. 12, 5 C.C.A. 403. In that case the question arose in an action of forcible entry and detainer in the United States court in the Indian Territory. The matters in controversy had been determined in the district court of the Cherokee Nation. The defendant, Ice, was not a citizen of the Cherokee Nation, and in the United States court pleaded the lack of jurisdiction of the Cherokee court over his person. The United States Circuit Court in disposing of the question said:

"But it is said, conceding this to be so, and conceding that the District Court of the nation had jurisdiction of the subject-matter of the suit of Mehlin v. Ice, that it did not have and could not acquire jurisdiction over the person of Ice, because he was a white man, and a citizen of the United States, and that its proceedings are, for that reason, a nullity. There is a conclusive answer to this contention. Ice was notified to appear before the clerk, and show cause why he should not be put out of the possession of the premises. In response to this summons he entered a general appearance. He did not challenge the jurisdiction of the court over the subject-matter of the suit or over his person. He rested his right to the possession of the premises on a lease from Armstrong, and exhibited the lease, and asked that Armstrong be made a party defendant, which was done. Conceding that Ice, being a white man, was for that reason not subject to the jurisdiction of the courts of the nation, this was a personal privilege, which he might and did waive. The eleventh amendment to the Constitution of the United States declares the judicial power of the United States shall not extend to a suit against a state, but it has always been held that the immunity from suit granted by this article is a personal privilege, which the state may waive at pleasure; and, when it does waive its privilege, and voluntarily submits to the jurisdiction of a United States court, it is concluded by the judgment. Beers v. State of Arkansas, 20 How. 527 [15 L.Ed. 991]; Clark v. Barnard, 108 U.S. 436-447, 2 Sup. Ct. 878 [27 L.Ed. 780]; Cunningham v. Railroad Co., 109 U.S. 446-451, 3 Sup. Ct. 292, 609 [27 L.Ed. 992.] The denial of jurisdiction to the Cherokee courts over white men in the Cherokee country is not any broader, and is not founded on as high considerations of public policy, as the denial to the courts of the United States of jurisdiction over the states. A party may waive any provision either of a Constitution, treaty, or statute intended for his benefit. It is therefore competent for a white man to waive the treaty and statutory stipulations exempting him from the jurisdiction of the Cherokee courts; and when he enters a general appearance to an action pending in those courts, and pleads to the merits, and there is a trial upon such plea, he thereby waives the exemption, and submits himself to the jurisdiction of the court, and will not afterwards be heard to contest the validity of the proceedings and judgment of the Cherokee court upon the ground that it had no jurisdiction of his person. Shutte v. Thompson, 15 Wall. 151 [21 L.Ed. 123]; Shields v. Thomas, 18 How. 253 [15 L.Ed. 368]; Jones v. Andrews, 10 Wall. 327 [19 L.Ed. 935]; Bank v. Okley, 4 Wheat. 235 [4 L.Ed. 559]; U.S. v. Rathbone, 2 Paine, 578 [Fed. Cas. No. 16,121]; Hawes, Jur. §§ 9-11; In re Cooper, 93 N.Y. 507; State v. Polson, 29 Iowa 133; Brown, Jur. §§ 49, 50; Bostwick v. Perkins, 4 Ga. 50; State v. Fooks, 65 Iowa 196, 452, 21 N.W. 561, 773; Railway Co. v. McBride, 141 U.S. 127, 11 Sup. Ct. 982 [35 L.Ed. 659]. The conclusion reached on this branch of the case renders it unnecessary to consider the other assignments of error."

It is urged that the pronoun "him" in the phrase, "and request him to so certify," refers to the clerk of the court, and that the pronouns "his" and "him" in the phrase, "and upon his failure so to do within three days before said cause is set for trial, application may be made to proper tribunal for mandamus requiring him so to do," refers to the clerk of the court. With this contention we cannot agree. To place this construction upon this section would give it a ridiculous and nonsensical meaning.

It is urged that these pronouns refer to the clerk for the reason that the first phrase of this section provides that the application must be filed with the clerk. All papers must be filed with the clerk; and the purpose of filing with the clerk is to make the paper a matter of record in order that it may be presented to the judge. The judge can only consider matters that have been made a part of the records of his court, and in our opinion the pronouns referred to refer to the judge, not the clerk. Otherwise what could be the necessity of presenting the application to the judge after reasonable notice to the other side? There is no notice provided for before the filing of the application with the clerk. The section provides that the application may be filed either in term time or in vacation. It seems to us unreasonable to say the purpose of the act is to provide a remedy by mandamus to require the clerk to certify the application to the judge. Suppose for instance this were true, and on the clerk's failure to so certify a mandamus issue to compel him to do so, and in compliance with the mandamus he delivers to the judge of the court of which he is clerk a certificate that the written application has been filed, and thereupon the court refuses to concede that he is disqualified and refuses to vacate the bench, then the complaining party has exhausted his remedy to no avail. The purpose of the act is to enable either party to a lawsuit to avoid a trial before a disqualified judge. The judge will not be permitted to pass on his own qualifications so as to preclude the complaining party from further objections; and the purpose of the requirement that the judge certify to his disqualifications is that there may be an election of a special judge to try the case. There must be some record of the disqualifications of the regular judge before a special judge could acquire jurisdiction of the case. Suppose the case be tried before a special judge and no record of the disqualifications of the regular judge, then the appellate court would necessarily vacate the judgment on appeal, for the reason that the record failed to disclose the jurisdiction of the special judge. We can understand how in some cases the short time of three days, as fixed by this section in which to apply for a mandamus, might work a hardship; but these cases would be the exception rather than the rule. The three-day limitation is on the judge, and not on the complaining party. There is nothing to prevent the complaining party from filing his written application as soon as his case is in court, and if the judge arbitrarily withheld action on the matter until within three days before the time, and the party was then so far removed from the proper court to which he could apply for a mandamus, as to deprive him of the remedy, a motion for continuance would be in order until such time as would enable the party to present the matter to the proper court, and an arbitrary refusal to extend the time would no doubt be such an abuse of discretion as to constitute grounds for reversal of a judgment against the complaining party.

This act of the Legislature does not include prejudice as a ground of disqualification, but the grounds enumerated are not an abridgment on those of the common law and our Constitution. Section 15 of Bunn's Edition of the Constitution provides that "right and justice shall be administered without sale, denial, delay or prejudice." The statute of Alabama on this subject is very similar to ours, and was construed in the case of Ex parte Cornwell, 144 Ala. 497, 39 So. 354. The defendant was charged with embezzling the funds of a savings bank and filed an affidavit alleging prejudice of the judge. The judge refused to certify that he was disqualified. The Supreme Court in passing on the question said:

"The petitioner objected to being tried on said indictments by the respondent as judge of the city court, on the ground of incompetency by reason of interest of said judge as a depositor in said bank, and requested the judge to certify his incompetency under the statute in order that a special judge might be selected to try petitioner on said indictments. This the respondent declined and refused to do. The present petition is for a peremptory writ of mandamus to compel the respondent to certify his incompetency. It is true that the respondent has no direct, pecuniary interest in the result of the prosecution by the state against the petitioner on the pending indictments. And, if the question of disqualification were left to be determined alone by the terms of the statute (section 2637 of the Code), under the facts in the present case, no disqualification could be said to exist. But, under the common law, there are other grounds than those mentioned in the statute, which go to the disqualification of the judge. In Gill v. State, 61 Ala. 172, it was said: `According to the stern morality of the common law, a judge is required to be legally indifferent between the parties.' In Freeman on Judgment, § 145, it is said to be `well settled by the common law that no judge ought to act where, from interest or any other cause, he is supposed to be partial to one of the suitors.' Any interest, the probable and natural tendency of which is to create a bias in the mind of the judge for or against a party to the suit, is sufficient to disqualify. The judge is human, and human nature, at best, is weak, and as far as it is possible a perfect equipoise should always be preserved in the administration of justice by the courts. Pecuniary interest in the result of the suit is not the only disqualifying interest. If such were true, there would exist no disqualification in the judge to try a defendant on a charge of arson in the burning of the house of the judge. And yet no one would for a moment question the existence of such an interest in the result of the trial, the probable and natural tendency of which would be to create a bias, that would affect the competency of the judge. In Medlin v. Taylor, 101 Ala. 239 [13 So. 310], in a contested election case, where the judge before whom the contest was instituted declined to sit, because his right to office by the same general election was being contested, but in a different forum, it was said by this court, speaking through the present Chief Justice, then justice: `Judge Taylor not only had no pecuniary interest in the result of this contestation, but he had no interest whatever that could be affected by any possible termination of the issues involved' — citing authorities. It is the opinion of this court, however, that under the doctrine of the common law, aside from our constitutional and statutory provisions, he had such a personal interest in the questions involved in the contestation of Medlin, in the nature of things, such a bias in favor of one of the parties to the case, as disqualified him to hear and determine the same, and justified his action in declining so to do. Here, as a result of the alleged embezzlement for which the petitioner was indicted and to be tried, the bank wherein the judge was a depositor failed, and, unable to pay its depositors, was put into the hands of a receiver for the purpose of winding up its business. By the alleged malconduct of the petitioner, the judge is made to suffer a loss of property — money deposited with the bank — to what extent does not appear, whether the total of his deposit, or only a part, but that this is immaterial. Under the facts, we think that the judge had such a personal interest in the subject-matter of the pending prosecutions, such as in the nature of things was calculated to produce in the mind a bias such as would impair, if not prevent, that equipoise which the stern morality of the common law demands in the administration of justice. Our conclusion, therefore, is that the judge was by reason of interest in the result of the suit disqualified to try the petitioner, and, unless he certifies his disqualification after being duly informed of our conclusion, the writ will issue as prayed for."

Section 5 of the act is declaratory of the common-law remedy to avoid trial before a prejudicial judge, and is not in conflict with the provision of the Constitution guaranteeing a trial without prejudice. Before the petitioner can invoke the aid of this court, he must comply with the requirements of this act or show cause for his failure to do so.

The petition for rehearing is denied.

FURMAN, PRESIDING JUDGE, concurs, DOYLE, JUDGE, dissents.