#### Eccles, Respondent, vs. Free High School District of the City of Kaukauna, imp., Appellant.

*December 10, 1915*

January *11, 1916.*

*Judges: “DisabilityDisqualification by prejudice: Statute construed.*

The word “disability,” as used iu sec. 9, ch. 23, Laws 1907, as amended by sec. 1, ch. *54,*Laws 1913, — providing in substance that “in case of sickness, temporary absence or disability” of the municipal judge of Outagamie county he may appoint the county judge to discharge his - duties, — includes a disqualification of the municipal judge by reason of prejudice. The maxim *noscitur a sociis*does not apply.

Appeal from a judgment of the municipal court of Outa-gamie county: Hehry Kreiss, Acting Municipal Judge.

*Affirmed.*

The plaintiff brought this action to recover wages alleged to be due her on a written contract with the board of education of the city of Kaukauna, Wisconsin.

The action was commenced by the service of a circuit court summons and was brought to trial on the 21st day of January, 1915, before Judge Thomas H. RyaN of the municipal court of Outagamie county. When the case was called for trial the defendant filed an affidavit of prejudice *163against Judge Thomas LI. Ryah. Judge RyaN then made a written order requesting Judge Kreiss of the Outagamie county court to try the case. Defendant took no further part in the trial, and upon the evidence adduced by the plaintiff in support of her complaint the court, presided over by the county judge, made its findings of fact and conclusions of law and entered judgment that the plaintiff recover from the defendant $332.50 damages and $59 interest; together with the costs and disbursements of the action. The judgment was signed Henry Kreiss, County Judge, Acting Municipal Judge. From such judgment this appeal'is taken.

*George II. Kelly,*for the appellant,

cited, among other cases, *Western D. & I. Go. v. Eeldmaier,*111 Fed. 123; *Turnipseed v. Hudson,*50 Miss. 429, 19 Am. Rep. 15.

For the respondent the cause was submitted on the brief of *Marie Gatlin.*

SiebecKee, J.

The record shows that the judge of the county court, pursuant to a written order of the municipal judge, acted as judge of the municipal court, tried and determined the issues between the parties, .and rendered judgment in plaintiff’s favor. This judgment is assailed on appeal as void upon the ground that the municipal judge, under the facts of the case, had no power to appoint the county judge to discharge the duties of the municipal judge, and hence the county judge acted without jurisdiction in rendering the judgment appealed from. The statute conferring power on the municipal judge to appoint the county judge to discharge his duties is sec. 9, ch. 23, Laws 1907, as amended by sec. 1, ch. 54, Laws 1913. It provides:

> “ . . . In case of sickness, temporary absence or disability of said judge he may, by order in writing filed and recorded in said court, appoint the county judge of said county to discharge the duties of such judge during such sickness, temporary absence or disability, who shall have all the powers of such judge while administering such office. In all *164cases any circuit judge may bold, court as tbe judge of tbe municipal court in tbe event of tbe absence, sickness or other disability of tbe municipal judge or upon bis special request. . . .”

It is contended by tbe appellant that tbe pbrase “In case of sickness, temporary absence or disability of said judge,” when considered in connéction with tbe other parts of tbe statute, does not include tbe disqualification of tbe municipal judge on account of bis prejudice in tbe case. Tbe argument is that tbe “disability” contemplated by this statute is one like tbe sickness or absence of tbe judge and that it does not include a disability arising from prejudice of tbe judge. Tbe legislature evidently intended to make provision for tbe discharge of tbe municipal judge’s duties when be was unable to discharge bis judicial duties, and when so interpreted and applied to tbe subject matter of tbe statute tbe language employed includes in its general meaning all disqualifications of tbe municipal judge, and tbe word “disability” aptly expresses such intent as inclusive of all disqualifications in adfc dition to sickness and absence. In ordinary language tbe condition of a 'judge who cannot act because be is not indifferent in tbe case is spoken of as a disqualification which legally disables him to perform tbe judicial function. Bias or prejudice of a judge as to tbe parties constitutes in tbe law a disability of such judge for tbe discharge of bis duties. This interpretation is corroborated by tbe provision of sec. 35, cb. 23, Laws 1907, as amended by sec. 1, cb. 54, Laws 1913, which provides that in case tbe municipal judge is disqualified to act in tbe instances there enumerated, including tbe one of his prejudice in tbe cause, be is authorized to “call in tbe circuit judge or county judge” to perform bis duties, and under such conditions “tbe provisions of said section 9 of this act shall apply in all their force and effect.” This indicates that tbe legislature understood that a disqualification from prejudice was included in sec. 9, and is necessarily ref*165erable to the word “disability” as tlie only term thereof which comprehends this idea. The terms of the statute indicate that it was intended by the legislature that the word “disability” as used here was not to be restricted in meaning by the words preceding it. We are of the opinion that the municipal judge gave a correct interpretation to the act and that the county judge had jurisdiction to try and determine the issue in the case.

*By the Court.*— The judgment appealed from is affirmed.