Ex Parte Bowles

Digges, J., delivered the opinion of the Court. This is an appeal from an order of the Circuit Court for Washington County, dated August 16th, 1932, adjudging the appellant guilty of contempt of that court. The contempt was found to be the filing by the appellant in the Circuit Court for Washington County of a paper entitled, “Motion and affidavit,” in the following language: “Comes now the plaintiff Borman S. Bowles, and moves the court to certify the above-entitled cause to another Judge other than the Honorable Prank G-. Wagaman, and for reasons says: That he does not believe that he can obtain a fair and impartial trial before the said Judge.

Borman S. Bowles.” The affidavit attached to- and accompanying the motion follows: ³²⁰ “District of Columbia, ss: Horman S. Bowles, being duly sworn, on oath deposes and says: Tbat he is a citizen of tbe District of Columbia and tbat tbe defendant Mathias P. Moller, is a citizen of Hagerstown, Maryland; tbat said defendant is tbe father-in-law of tbe son of tbe Honorable Prank Gr. Wagaman and tbat tbe affiant believes tbat said son John Wagaman, will be one of tbe attorneys for tbe defendant at any trial in tbis cause; tbat at a recent trial before tbe Honorable Prank Gr. Wagaman, Equity Ho. 11,905, in which plaintiff herein, M. P. Moller,' tbe defendant herein and John Wagaman tbe said son of Prank Gr. Wagaman were interested parties, tbe said Judge stated in open Court tbat tbe filing of a petition by tbe plaintiff herein was done for ulterior motives and tbat during tbe bearing tbe plaintiff herein believes tbat tbe said Judge Wagaman aided bis said son in contesting tbe plaintiff’s right to. intervene; tbat bis belief was confirmed by many members of tbe Hagerstown Bar (attorneys practicing in Washington County) who so expressed themselves to tbe affiant and it was tbe general belief as expressed by many other persons to tbe plaintiff herein tbat tbe said plaintiff could not obtain a fair and impartial trial in any matter in which M. P. Moller and John Wagaman were interested if said trial was presided over by tbe Honorable Prank G. Wagaman.

Horman S. Bowles. Subscribed and sworn to before me tbis 5th day of May, 1932. Catherine P. Offutt, Hotary Public, D. C. [H. P. Seal.]” Tbis motion and affidavit were filed on May 27th, Í932; whereupon tbe following petition was filed in tbat court by tbe state’s attorney for tbe county, wherein it is stated: “1st. Tbat one Horman S. Bowles filed on tbe 5th day of May, 1932, in Ho. 80 Appearances, May Term, 1932, in tbe Circuit Court for Washington County, a certain motion and affidavit, certified copy of which motion and affidavit is attached hereto and made a part hereof, and marked ‘Exhibit Motion and Affidavit.’ 2nd.

Tbat said motion and affidavit is deemed by your petitioner to contain therein impertinent, scandalous, ³²¹ insulting and contemptuous language reflecting on the integrity of said Honorable Court, especially upon tbe Honorable Prank Gr. Wagaman, one of the Judges of said Court. To tbe end therefor: Tbat tbis Honorable Court may pass an order upon tbe said Borman S. Bowles requiring bim to sbow cause, if any be bas, by a certain day to be named in said order wby be should not be beld in contempt of Court.” Upon tbis petition an order was passed by Hon. D. Bindley Sloan, one of tbe judges of tbe said Circuit Court for Washington County, in these words: “Tbe aforegoing petition, affidavit and exhibit having been read and considered, it is thereupon tbis 26th day of May, A. D. 1932, by tbe Circuit Court for Washington County, ordered tbat Borman S. Bowles, within five days after a copy of tbe aforegoing petition, affidavit and tbis order of Court have been served upon bim, answer said petition and sbow cause, if any be bas, wby be should not be beld in contempt of Court.” Tbe papers, including a copy of tbis order, were served upon tbe appellant on July 2nd, 1932.

On July 7th the appellant filed an answer under oath to tbe sbow cause order, wherein it is alleged: “Tbat be never intended to be disrespectful to tbe Court or to tbe Honorable Prank Gr. Wagaman; tbat be bas practiced law in tbe District of Columbia and in tbe Federal Courts of tbe United States and tbat under tbe statutes in tbe said District of Columbia and in tbe Federal Courts any person attempting to disqualify a judge from sitting in any case must file ten days before tbe beginning of tbe term of Court at which tbe matter is to be beard a motion supported by an affidavit setting forth facts, which if true, would be sufficient to disqualify such judge; tbat respondent was informed and therefore believes tbat it was tbe practice to file a motion before any term of Court (in tbe State of Maryland) so tbat tbe Clerk and tbe Judge ³²² might certify any matter that would ordinarily he set for a hearing at such term to another county or before another judge; that respondent believed that he had to state facts which he believed to be true in the form of an affidavit to support a motion to disqualify; that every fact set forth in his affidavit he believes to be true; first, John Wagaman is the attorney of record in the matter; that the defendant is related to the Honorable Prank G. Wagaman by marriage; that four members of the Hagerstown bar (now in good standing and among the leaders of said bar) voluntarily expressed to the respondent that the Honorable Frank G. Wagaman had aided his son and one J. Lloyd Harshman in the conduct of Equity case Ho. 11,905 and that others present in the Court during the hearing of said matter had also expressed the same opinion; that while the said aid may have been unconsciously given as would be only natural interest of a father for a young son, yet the respondent honestly believes that he cannot have that fair and impartial trial which the law of the State of Maryland extends to all persons, in any matter in which M. P. Moller and John Wagaman are interested parties; that as to the statement made by the Honorable Frank G. Wagaman and set forth in the respondent’s affidavit, to wit: ‘That the filing of a petition by the plaintiff herein was done for ulterior motives’ respondent is ready and willing to. prove that such statement was made in open Court and the respondent believed that same was not justified by any evidence offered in court or by any conduct on the part of the respondent or his joint petitioner; that further the respondent herein accused the son of the Honorable Frank G. Wagaman and the attorney filing the petition herein with deliberately deceiving court in that these two attorneys actually represented the plaintiff and the defendant in Equity Ho. 11,905, filed every paper filed by either the said plaintiff or the defendant, but they caused the papers filed on behalf of the defendant therein to be signed by a young attorney, one Samuel 0. Strite, for the sole purpose of not disclosing the true facts' as to who was actually repre ³²³ senting the defendant; that these two attorneys John Wagaman and J. Lloyd Harshman (State’s attorney for Washington County) filed on February 2nd, 1932, a bill of complaint for M. P. Moller, Inc., and at the same time filed an answer for the defendant, M. P. Moller Company, in the bill they appeared as attorneys of record, but in the answer they used one Samuel C. Strite; that on February 5th, 1932, they having been appointed receivers, sold the entire assets of the defendant corporation to the plaintiff, valued at about $130,000 for $5,000 cash and two notes of the plaintiff corporation amounting to about $36,000; that this action was approved by the Honorable Frank G. Wagaman, although the said receivers made no effort to obtain any other bid for the said assets and made no effort to obtain the best price therefor. They did not advertise the goods and in truth and in fact the said receivers acted solely for the benefit and in the interest of the plaintiff without regard for the interest of the defendant or the interest of the petitioners who owned 25% of the stock of the defendant, and the respondent asks that the entire proceeding in the Equity case Ho. 11,905 be considered in connection with this answer, and now therefore the respondent says that the Honorable Frank G. Wagaman knew of the charges made against his son and J. Lloyd Harshman and against all the others interested in the case Equity Ho. 11,905 and he should not have sat in judgment especially after the respondent herein who was one of the petitioners therein made a motion to have the case certified to another Court and to disqualify the said Honorable Frank G. Wagaman from sitting in the case because of interest.

And now lastly the respondent says that the said Honorable Frank G. Wagaman failed to protect the respondent in a case in which the respondent was addressing the Court in that he allowed the father-in-law of his son one M. P. Moller to call the respondent a ‘Liar’ in open court and when the respondent called upon the said Honorable Frank G. Wagaman to cause the said M. P. Moller to apologize, refused to do further than to say that the conduct of said M. P. ³²⁴ Holler was inexcusable, yet when the respondent ask that said H. P. Holler be required to apologize or be held in contempt, the Honorable Erank G. Wagaman said that he would do neither, and now the respondent says that he does not believe that the language in his affidavit contains therein impertinent, scandalous, insulting and contemptuous language reflecting on the integrity of the Court, but that if such language can possibly be so construed he sincerely apologized and now says that he never intended the language used in his affidavit to be so construed, but merely desired to set forth facts which he is ready and willing to prove to be facts, which would support his motion to have the case set before another Judge other than the Honorable Erank G. Wagaman, and having fully answered the petition and the rule herein issued, the respondent prays that petition be denied and the rule discharged.” Testimony was taken upon the petition of the state’s attorney and the said answer of the appellant in open «yurt before his honor, Judge Sloan, and resulted in the order appealed from. The motion and affidavit of the appellant, containing language which was held to be contemptuous, was filed in a civil cause wherein the appellant was plaintiff and Mathias P. Moller was defendant. While the record here does not set forth the declaration in that case, it is apparent that the cause of action was an alleged slander of the appellant by Mathias P. Moller, growing out of language used by Moller during the progress of the trial of an equity case in that court, No. 11905, wherein the appellant and Moller were parties, which said equity case was the basis of the appeal by this appellant in No. 73 of the present term of this court. The opinion of this court in that case fully discloses the nature and result thereof; and it is unnecessary to further enlarge upon those facts in this opinion.

The purpose alleged in the appellant’s answer, in filing the motion and affidavit, was to have the slander case removed ³²⁵ to some other jurisdiction for trial, or to disqualify Judge Wagaman from sitting in the case. Section 109 of article 75 of the Code provides: “The parties to any cause may submit the same to the court for determination without the aid of the jury; and in all suits or actions at law, issues from the orphans’ court, or from any court sitting in equity, and in all cases of presentments of indictments for offenses which are or may be punishable by death, pending in any of the courts of law in this State having jurisdiction thereof, upon suggestion in writing, under oath, of either of the parties to said proceedings, that such party cannot have a fair and impartial trial in the court in which the same may be pending, the said court shall order and direct the record of proceedings in such suit or action, issue, presentment or indictment, to be transmitted to some other court having jurisdiction in such case for trial. * * * And such right of removal shall exist upon suggestion in cases when all the judges of said court may be disqualified, under the provisions of the constitution, to sit in any such case.” According to these provisions, either of the parties plaintiff or defendant in a civil suit pending in a court of law, upon suggestion and affidavit, has the absolute right to have the case removed to some other court of competent jurisdiction for trial. In such cases the court to whom the motion is addressed has no discretion as to removal, but must grant the motion. The same rule and practice is applicable where all of the judges of the court wherein suit is instituted are under constitutional disqualification.

Under what facts does the Constitution declare a judge to be disqualified? These are prescribed by section 7 of article 4 of the Constitution, and section 31 of article 26 of the Code. Section 7 of article 4 of the Constitution provides: “Xo judge shall sit in any-case wherein he may be interested, or where either of the parties may be connected with him by affinity or consanguinity within such degrees as now are or may hereafter be prescribed by law, or where he shall have been of counsel in the case;” and the provisions of section 31 of article 26 of the Code are: “Any judge of the court of appeals, or any judge of a cir ³²⁶ cuit court, or any judge of the supreme bench of Baltimore City, who shall be connected by consanguinity or affinity with any party to a cause within the third degree, counting down from a common ancestor to the more remote, shall be disqualified from sitting in such cause.” Applying the test thus prescribed, we find that Judge Wagaman was not disqualified in the slander case then pending. He had no such interest in the case as would disqualify him under the constitutional provisions (the word “interest” as therein employed having reference to a pecuniary interest in the litigation or the result thereof); he was not connected with either of the parties by affinity or consanguinity within the prohibited degrees; nor had he been of counsel in the case.

There may be, and doubtless are, many circumstances in which a delicate sense of propriety would, and probably should, induce a judge to decline to sit in a given case and, upon his own motion or upon motion of either of the parties, remove the cause to another jurisdiction or request some other judge of the same jurisdiction to preside at the trial. However, if the presiding judge, under such circumstances, refuses to do this, he is within his legal rights; and his action in that respect is not the subject of review. Where the alleged disqualification does not amount to a constitutional or legal disqualification, the question is left to the enlightened conscience, delicacy of feeling, and sense of fairness possessed by the individual judge. The long and honorable history of the judiciary of this state impels the belief that the decision of such questions can be safely left where the responsibility now reposes.

Judges are selected to be useful public servants, and no judge’s view of the proprieties in such questions should be carried to such an extent as would result in the serious curtailment of his usefulness as a public officer. We have always had, and will continue to have, situations where young men are practicing attorneys before the court presided over by their fathers; and what we have said is not to be construed as indicating a belief on the part of this court that justice, fairness, or delicacy of feeling should require, ³²⁷ or even permit, the retirement of the judge in all such cases. The interest of the litigants and the public must at all times be kept in mind as the real and substantial object to be attained. It may be that in Baltimore City, where one judge can be substituted for another without inconvenience, delay, or expense, a practice by which no judge would sit where his son was of counsel is proper; while in the counties, if such a rule were established and adhered to, it would result in one of two things, the serious curtailment of the usefulness of the court, or the prohibition of the attorney practicing before the court in the county of his residence.

What is true in respect to a son might be, and doubtless is, true in respect to other close relationships, such as