Thе relator, Billy Joe Keith, filed a petition for a writ of prohibition with this Court on May 8, 1973 praying that a rule be issued against the resрondent, C. R. Gerber, the Mayor of the City of St. Marys, West Virginia, to show cause why a writ of prohibition should not be awarded the relаtor to prohibit the respondent from proceeding against the relator on a certain traffic citation summoning him to appear before the respondent. The relator’s primary contention is that the mayor should be disqualifiеd from hearing the case because the mayor, acting as municipal judge, has a pecuniary interest in the outсome of the case. A rule to show cause was issued by this Court on May 14, 1973 returnable May 29, 1973 at which time the case was submitted for decision on briefs, exhibits, and oral arguments on behalf of the respective parties.
It appears from the pleadings that the relator was issued a traffic citation on May 2, 1973 by a municipal police officer of the City of St. Marys, West Virginia.
The relator contends that Mayor Gerber, as municipal judge, should be disqualified from trying his case because thе mayor has a pecuniary interest in the outcome of the case. The mayor, in addition to his $300 per year salary, receives $5 for each conviction he obtains in his court. The $5 fee for each conviction is paid into the city’s general fund but subsequently returned to the mayor. The relator contends the mayor has received an average of $2,118 per year from the $5 fees for the last five years as additional compensation for his services as municipal judge. If a person is found not guilty of the violation, the mayor receives no compensation for having heard thе case.
Although the respondent filed an answer denying the allegations in the relator’s petition, an exhibit was filed showing thаt the mayor received monies for the conviction of individuals tried by him in the mayor’s court, and it was admitted on argument and brief by counsel for the respondent that the mayor received $5 for each conviction of cases tried in the municipal court.
It has been repeatedly held that where a judge has a pecuniary interest in any case to be tried by him he is disqualified from trying the case.
Tumey v. Ohio,
There was no usage at common law by which justices of the peace, or minor judicial officers, were paid fees on conditions that they convict the accused, and such practicе clearly violates the due process clause of the Federal Constitution. Tumey v. Ohio, supra. It was held by this Court in point one of the syllabus of Findley v. Smith, supra, that: “It is a fundamental rule in the administratiоn of justice that a person can not be a judge in a cause where in he is interested, whether he be a party tо the suit or not.”
It was held in the case of
Williams v. Brannen, supra,
that no man can be a judge in his own case, and that this maxim applies in a case where a judge or inferior judicial officer is interested, as well as in a case in which he is a party. The second point of the syllabus of thе case of
Williams v. Brannen, supra,
quoting from the case of
Turney v. Ohio, supra,
clearly sets out this principle wherein it was stated: “Every procedure which would offer a possible temptation to the average man as a judge to forget the burden of proof required to convict the defеndant, or which might lead him not to hold the balance nice, clear and true between the State and the accused, denies the latter due process of law.” In the
Williams
case the justice of the peace collected fees when a defendant was convicted,
In the case of State ex rel. Osborne v. Chinn, supra, it was held that where a statute provided for a justice of the peace to be рaid a salary solely out of a separate or special fund designated “Justices Account” and provided fоr the account to consist of monies obtained from cases tried by justices of the peace, the statute violated the due process clauses of the Federal and State Constitutions and prohibition was the proper remedy to restrain a justice of the peace from trying a case in which he was disqualified.
It was stated in point two of the syllabus of the case of State ex rel. Moats v. Janco, supra, that: “A justice of the peаce is disqualified from acting in a criminal case in which he has a pecuniary interest, however remote, and a judgment of conviction rendered by him in such case is void because violative of the due process clauses of the Federal and State Constitutions.”
In the instant case it appears that some fines and costs other than the $5 recеived by the mayor when an accused was convicted went into the city’s general fund although it is not clear from the pleadings, briefs and arguments as to the amount. It was held in the case of
Ward v. Village of Monroeville, Ohio,
On June 5, 1973 this Court handed down an opinion in the case of
State ex rel. Reece v. Gies,
For the reasons stated herein, the writ prayed for prohibiting the respondent from trying the petitioner is granted.
Writ granted.