115 P. 924 | Idaho | 1911
Lead Opinion
This action was brought by the plaintiffs to recover damages on account of the lands of the plaintiffs being overflowed by water, caused, as alleged, by a dam constructed by the defendant. The action was commenced in Kootenai county, and, after the cause was at issue, the defendant, the Washington Water Power Company, moved the trial court for a change of the place of trial from Kootenai county, on account of the bias and prejudice of the citizens of that county. Affidavits were filed in support of the motion and in opposition thereto; the trial court made an order overruling the motion, from which an appeal was taken to this court. The only question presented is as to whether the facts disclosed are such as to show that the trial court abused its discretion in refusing to grant the motion.
In support of the motion six affidavits were filed by the appellant, and the same number by the plaintiffs and respondents in opposition thereto. The principal affidavit in support of the motion is made by H. L. Bleeker. Said affiant states that he is the secretary of the Washington Water Power Company, gives a history of the building of the dam, whereby it is claimed the water was raised above its normal level upon streams and lakes affected by the construction of the dam, shows certain permits granted by the government of the United States granting to the Washington Water Power Company the right to overflow and hold waters upon certain low lands on the Coeur d’Alene Indian Reservation; shows that a large number of persons along the St. Joe and Coeur d’Alene rivers and different lakes have claimed to be damaged by the overflowing of their lands, which they claim was caused by the said dam, and that a large number of such persons petitioned the Secretary of the Interior to revoke the permit which had been given to the Washington Water Power Company to overflow the Indian lands, and procured hundreds of signers thereto; that at the hearing of this application in Coeur d’Alene City, Idaho, the county seat of Kootenai county, a large number of such persons appeared as witnesses; that public meetings were held during said hearings,
The affidavit further states, in substance, that during the said hearing, and at different times, various newspapers published articles concerning the effect of the said dam. These articles are shown to have been published in several papers. Only two of those mentioned were located in Kootenai county, the others being published in the city of Spokane, Washington, and having a circulation in Kootenai county.
Exhibit No. 16, which is made a part of the affidavit of Bleeker published in the “Spokane Daily Chronicle,” is as follows:
“Coeur d’Alene, Jan. 28. — (Special Correspondence.) — ■ Kootenai County and the State of Idaho will be lined up together against the Washington Water Power Company in the backwater fight. A petition signed by all taxpayers along the St. Joe, St. Maries and Coeur d’Alene rivers was presented to the County Commissioners today, asking that*642 steps be taken to prevent the overflow of land from Harrison to Cataldo, due to the dam at Post Falls.
“They further stated in the petition that the county roads had been overflowed, bridges destroyed, making a total damage to the county of $6,000 in the last two years. If the dam is not done away with, a further damage of $5,000 will be incurred, they declare. The commissioners approved the petition, and referred the matter to the County Attorney, C. H. Potts, instructing him to take the necessary legal steps to protect the county’s interest. This action practically makes the County and State against the Washington Water Power Company.”
Exhibit No. 11, from the “Daily Spokesman Review,” is as follows:
“That the people of Idaho must ultimately win in their fight with the Washington Water Power Company for the reclamation of the thousands of acres of farming land submerged by the back-waters from the Post Falls Dam is the belief of Paul Clagstone, Speaker of the Idaho House of Representatives. This is not a question between the land owners and the Washington Water Power Company, but a question for all of the people of Northern Idaho, said Mr. Clagstone, yesterday. The destruction of from 30,000 to 60,000 acres of rich agricultural land is a question of great importance. It affects not only settlers, but all the merchants of Northern Idaho and Eastern Washington. Idaho has taken up the fight as a matter of public policy. At a mass meeting at Coeur d’Alene Tuesday, a committee of three was appointed to put the matter before the proper authorities at once. This committee was composed of Boyd Hamilton, Mayor of Coeur d’Alene; Mr. Darknell, one of the settlers, and myself.” The article closes with the statement, in substance, that the resolutions have been sent to Senators Hey burn and Borah, asking them to make protests to the Interior Department.
Exhibit No. 10 is from the “Coeur d’Alene Press,” and is in part as follows:
*643 “Last evening the settlers in controversy with the Washington Water Power Company pnt force to their oft repeated resolution by effecting a permanent organization, and delegating its powers to a central committee consisting of delegates from communities along the Coeur d’Alene, St. Maries and St. Joe River valleys to secure relief' collectively from the Water Power Company by the removal of the dam at Post Falls. This committee is to be delegated largely with discretionary powers in the manner of procedure. .... After the purpose of the meeting had been explained, reports of committees were called for. Delegate Blessing, from the Coeur d’Alene river valley, presented a report of settlers’ meeting containing a set of resolutions pledging support to the warfare on the Washington Water Power Company, and signed by Wm. Doty and thirty-six others. Several speeches were made, the key-notes to which were: ‘Unite to cope with the Washington Water Power Company’ and ‘Immediately to formulate some definite plan of action.’ .... Hon. T. T. Kerl said: ‘Public health is a strong point with which to fight the Washington Water Power Company; but I’m inclined to think the company will rely upon its vested rights to maintain the dam.’ ....
“Clarence Butler, who owns a farm on the river below St. Maries, said: ‘Mosquitoes, the carriers of disease, were so numerous last summer that I had to go to St. Maries to sleep. ’ . . . . Mr. Andrews: ‘Am interested here, though I have settled with the Washington Water Power Company. It was a case of half a loaf, or no loaf at all. ’ ’ ’
The meeting finally closed with the adoption of a resolution addressed to the state board of health, asking that body to order an investigation.
These publications are a fair sample of the matters purporting to have been published.
In addition to the affidavit of Bleeker, the secretary of the-company, the affidavit of John P. Gray was filed, in which Mr. Gray states that he has been for a number of years, and now is, an attorney for the Washington Water Power Company, and that he is well acquainted with the citzens of'
The affidavit of Henry P. Knight, also one of the attorneys for the defendant, shows in substance that he has been a resident and citizen of the county of Kootenai, and that there are a large number of actions pending in Kootenai county similar to this action, and that on account of the investigations and hearings heretofore had, and the statements made by the public press, it is his opinion that the defendant could not have a fair trial.
In addition to the said affidavits, there were filed the affidavits of H. M. Strathern, who resides at Post Falls, and that of M. D. Wright, who resides in the city of Coeur d’Alene, in which affidavits each affiant states that affiant is well acquainted throughout Kootenai county, and that on account of the •articles published in the “Spokesman Review” and the ‘“Spokane Chronicle,” the “Coeur d’Alene Evening Press” •and the “Journal,” the latter two of which are published at «Coeur d’Alene, Idaho, and the hearing held, heretofore men
The affidavit of Charles L. Heitman, also an attorney for the Washington Water Power Company, is filed in support of the application for a change of venue, and is very similar to that of attorney Knight to which attention has been heretofore called.
In opposition to the motion, the affidavit of one of the plaintiffs, Henry Gibbert, is filed, in which he says, in substance, that his land has been overflowed; that the defendant, the Washington Water Power Company, has refused to pay him any damages, and endeavored to prolong the litigation and postpone the trial of the cause; that the land is situated on Coeur d’Alene lake within less than two miles of Coeur d’Alene City; that all of the plaintiff’s witnesses reside in the immediate vicinity of Coeur d’Alene; that he is a man without means, and that a change of the place of trial would involve great and additional expense in procuring witnesses, and getting his witnesses to go to another county, which he is unable to bear, and that he could not take all of his witnesses to another county. He alleges that there is no such feeling in Kootenai county as would prevent the defendant having a fair trial; that he has observed the publications in the newspapers, and especially the Spokane papers, in regard to the hearing being held and the testimony submitted at Coeur d’Alene, Idaho, and that in the opinion of affiant said newspapers printed and published the defendant’s side of the ease, and the testimony submitted upon the part of the defendant, in a fair, impartial manner, as well as the testimony submitted adverse to the defendant in said action, and states that he is informed and believes that all of the parties who have submitted affidavits in support of the defendant’s motion for a change of venue are either attorneys for the defendant, or in some way connected with the defendant company, either as an officer of the company or otherwise; and in the opinion of said affiant, the defendant can have a fair and impartial trial in Kootenai county.
The affidavit of J. M. Elder, filed in opposition to the motion, states that he is a resident of Kootenai county, and has been for more than seven years; that he is postmaster at the city of Coeur d’Alene, and has been such for more than two years; that he is well acquainted with the city and the county and the taxpayers, and those who would serve as jurors; that in his opinion the defendant can have a fair trial.
The affidavit of John F. Steele, filed in opposition to the motion, shows that he has been a resident of Kootenai county for fifteen years, and is acquainted with those who would serve as jurors in said county; that from the knowledge and information that the affiant has, the defendant can, and will, have a fair and impartial trial in Kootenai county.
The affidavit of Horace H. Hubbard, filed in opposition to the motion, states in substance that he is a resident of Kootenai county, and has been for more than five years; that in his opinion there is not a prejudice against the defendant in said county existing to such an extent as will prevent the defendant from having a fair and impartial trial.
The affidavit of E. A. McCarty states that he has been a resident of Kootenai county for nineteen years, and, in other respects, is similar to that of the affiants, Hubbard and Steele.
An application for a change of venue is addressed to the sound discretion of the trial court, and the decision reached by the trial court will not be reversed upon appeal unless the showing made is such as convinces the appellate court that such discretion has been abused. A trial judge may be pre
In the matter in question the motion for a change of venue was overruled by the trial court upon the same affidavits that are now before this court. It will be noticed that the chief reliance of the defendant for a change of venue is based upon the fact that four or five newspapers, at least two of which were published in the city of Spokane, state of Washington, published numerous articles as news items, which, it is claimed, either directly or indirectly criticised the action of the Washington Water Power Company, or so stated the facts as to create a prejudice among the citizens of Kootenai county to such an extent that a fair and impartial jury could not be had in said Kootenai county to hear and determine the cause.
The growth and improvement of the facilities for delivering mail, and the great desire of the public for information and enlightenment, which is always increasing, has within the past decade, been marvelous, and at this time there are but few communities where there is any centralization of the people, which the daily papers fail to reach. The rural mail delivery system, and other improvements in the delivery of the mail, have brought about such conditions as make it possible for persons who live in rural communities to be in daily intercourse with what is going on at other places.
The principal affidavit in this case, giving the details and copies of the articles published in the different papers, was made by Bleeker, who is secretary of the Washington Water Power Company, and his opinion is based almost entirely upon the fact of the publication of such articles and statements made in public utterances by public speakers. Three other affidavits were made by three of the attorneys for the defendants, and these three attorneys base their opinion upon the publication of such articles, and also upon their acquaintance throughout Kootenai county. The other two affidavits filed in support of the motion are based almost wholly upon said pub
A citizen is not disqualified from sitting as a juror merely because he has read articles published in the newspapers, detailing what purports to be the facts in the case; and the opinion of the juror as to the merits of the cause, based solely upon what has been read in the newspapers, published as matter of news, should rarely, if ever, be accepted by the court as a sufficiently unqualified opinion to disqualify the juror. In this age every person of intelligence reads the newspaper to a greater or less extent, and to adopt a rule disqualifying men to serve as jurors who have formed some kind of an impression or opinion from reading articles published in the public press would be, in effect, relegating intelligent jurors to the background, and would result in the selection of a less intelligent and a less efficient jury. In determining a question for a change of venue, where the affidavits in support of a motion are based merely upon the fact that such articles were published, the court must keep in view what the law requires as grounds to disqualify a person from sitting as a juror. (See sec. 4380, Rev. Codes.)
It may be that every citizen in Kootenai county has read the articles published in these different newspapers, and yet that none of them, on account of the mere reading of such articles, would be disqualified from sitting as a fair and impartial juror in the trial of the cause. The place where the juror resides, whether he has ever talked it over with his neighbors or with his family, and whether he has ever expressed his views about it, all have to be considered; and while it might require greater care upon the part of the trial judge, and upon the part of counsel in the case to obtain a jury of fair minds to try the case, when such publications have been made, yet the fact that such articles were published and were read by a juror would not, of itself, necessarily disqualify the juror.
This application for a change of venue lacks strength in that the expression of individual citizens throughout Kootenai
This court, in the case of State v. Rooke, 10 Ida. 388, 79 Pac. 82, stated as follows:
“An application for change of venue will be denied when it is based on the ground of the bias and prejudice of the people of the county, where it is shown that an equal number of the citizens testify that in their opinion a fair and impartial trial can be had in the county. ’ ’
In that case it was shown that the defendant was arrested for the stealing of livestock, and there was an organization existing in the county known as the Idaho County Stock Association, which had over 300 members, and that the association had offered a reward of $300 for the arrest and conviction of anyone charged with the crime of stealing livestock; that the total number of votes cast in the county was about 4,500, and that, therefore, the members of the association constituted one-fifteenth of the total number of electors of the county, and the court used the following language:
“On the other hand, an equal number, and, so far as we are informed, equally as good citizens, testify that in their opinion there is no necessity for the change, and that from their conversation and acquaintance with the people of that county, the defendant can have a fair and impartial trial. All this evidence, as well as many facts that we apprehend are*650 not shown by the record, were before the learned trial judge, and, in the discharge of his duties, he refused to grant the motion for change of venue, and we find no error in such ruling.”
In the case at bar, it is shown that four of the sis persons who aid this court by their opinions in support of the motion for a change of venue were, at the time of making their affidavits, and for some time prior thereto had been, associated with and interested in the Washington Water Power Company in this particular ease, one of the affiants as secretary of the company, and three as attorneys. The opinions of the men who might be called upon to serve as jurors are absent from this case. The most that can be said for the showing made in the case at bar is that some localities in Kootenai county are shown to have some feeling against the manner in which the defendant has conducted its business, and that some of the citizens are not qualified to sit as jurors, but the conclusion does not follow that the defendant cannot have a fair jury and a fair trial in Kootenai county.
It is well known that every business institution investing large amounts of capital and employing large numbers of men in any community, generally receives criticism, and that some of the citizens become biased against the institution; they make public their criticism and bias through the public press and otherwise, but to conclude that the citizen reading or hearing such matters is necessarily biased so that he cannot sit as a fair and impartial juror in a cause wherein the institution is a party, is to attack the intelligence of the average American citizen.
The bias or formed opinion which would disqualify jurors is not shown by the affidavits filed in this case.
There is another matter which should not be overlooked in this ease, and that is the issue to be tried by the jury. This is an action to recover damages. The defendant company admits the cause of action; admits that it has appropriated and flooded the plaintiffs’ land, and that plaintiffs have sustained damages by reason thereof, but denies that the damage
The order made by the trial court denying the motion for a change of venue is affirmed. Costs awarded in favor of respondent.
Dissenting Opinion
Dissenting. — I dissent. It clearly appears to me from the affidavits filed in support of said motion that the feeling in said county had been very bitter against the appellant corporation. Several affidavits were filed by respondents in opposition to the motion, whieh are similar in form. They are to the effect that in the opinion of the affiants “sufficient prejudice” does not exist in said county to prevent appellant from having a fair trial therein, thereby admitting that some prejudice exists. In nearly all of the opposing affidavits it is stated by the affiants that in their opinión “there is not a prejudice against the defendant in said county existing to such an extent as will prevent defendant from having a fair and impartial trial in said case in said county of Kootenai.” Those affidavits do not deny that many public meetings were held in said county attended by
This court, in the ease of Day v. Day, 12 Ida. 556, 86 Pac. 531, 10 Ann. Cas. 260, held that it was absurd and a mere pretense to say that a party to an action could secure a fair and impartial trial when the minds of the people all over the county were excited and -prejudiced against him. It is well recognized that the legal discretion of the court must be governed by rules and not by humor or caprice. A change of venue should be granted upon proper application when it is made to appear that persons are active in forming public opinion against the defendant; that exaggerated reports have been circulated concerning the conduct of the defendant; that a bitter feeling exists in the county and that there is great excitement in regard to the matter among the citizens of the county; that numerous persons have made repeated and special efforts to incite a feeling of hostility against the defendant.
Petition for rebearing denied.
