167 Ind. 76 | Ind. | 1906
This proceeding was commenced before the Board of Commissioners of the County of White upon a petition by appellants for the construction of a ditch. In the absence of one of the members of the board the remaining members, Joseph Taylor and George T. Ins-keep, appointed viewers, who viewed the proposed ditch, made and filed their report finding the same to be of public utility, and assessed benefits for its construction. Notice of the pendency of said petition and report, and of the time fixed for the hearing of the same, was given as required by law. This report disclosed that lands of said Joseph Taylor would be benefited by, and should be assessed for, the construction of the proposed drain. Taylor thereupon filed a remonstrance against the proposed ditch, and remonstrances were also filed by the appellees and others. Reviewers were appointed by the board, who subsequently made their report, to which certain objections were made by appellees. These objections were heard and overruled, and final judgment entered establishing the ditch and ordering its construction, from which an appeal to the circuit court was taken by appellees. In the circuit court appellees objected to the jurisdiction of the court, and moved that the cause be certified back to the board, with instructions to set aside the appointment of viewers and all subsequent proceedings, for the reason that said Taylor participated as a commissioner in said proceedings, when because of interest in the subject-matter he was disqualified from so acting. This motion was sustained, to which ruling appellants excepted. The decision of the court refusing to assume jurisdiction and ordering the proceedings and papers certified back to the office of the auditor is assigned as error.
In support of their contention that the proceedings in question were absolutely void, appellees’ counsel cite cases from Michigan and California. Section 7245 Howell’s Statutes of Michigan provides: “No judge of any court shall sit as such in any cause in which he is a party, or in which he is interested, or in which he would be excluded from being a juror by reason of consanguinity or affinity to either of the parties.” The supreme court of that state said upon this subject: “This statute, mandatory in its terms, voices the universal sentiment of mankind excluding judges from sitting in cases where they are parties or are interested. * * * The authorities are numerous, and nearly uniform, which hold that a judgment or decree rendered by a judge contrary to a statute like ours is void, and may be attacked collaterally.” Horton v. Howard (1890), 79 Mich. 642, 44 N. W. 1112, 19 Am. St. 198.
The decisions of the California supreme court rest upon a statute which reads as follows: “No justice, judge, or justice of the peace shall sit or act as such in any action
Mr. Freeman in his authoritative work on judgments has collected many cases, from which he announces the following conclusion: “But the general effect of the statutory prohibitions in the several states is undoubtedly to change the rule of the common law so far as to render those acts of a judge, involving the exercise of judicial discretion, in a case wherein he is disqualified from acting, not voidable merely, but void.” 1 Freeman, Judgments (4th ed.), §146.
It follows that the court erred in sustaining appellees’ motion and in remanding the cause to the board of commissioners without a trial. The judgment is reversed, with directions to overrule appellees’ motion to remand, and for further proceedings in accordance with this opinion.