Mayor of Lexington v. Long
31 Mo. 369
| Mo. | 1861
Napton, Judge,

delivered the opinion of the court.

The maxim that no person should be allowed to act as a judge in his own cause, or a cause in which he is interested, *372is founded on principles of natural justice, and is therefore enforced in the judicial systems of all civilized nations ; but it is a maxim which has its limits, and those limits are determined by the legislative department of the government. Its application may be carried to such refinements as, in the practical administration of justice, would produce the greatest inconvenience without being attended with the slightest benefit. We must therefore look to the statute law to ascertain where it is properly applied, and where its application is rejected.

By the charter of the city of Lexington, that portion of the body politic of the State, situated within certain defined limits, is incorporated by the name of “the mayor, councilmen and citizens of the city of Lexington,” and by that name all the functions entrusted to it by the charter are to be exercised. By the twelfth section of the charter, the corporation is empowered to widen a street, and the form of proceeding is pointed out. The proceeding is directed to be instituted and conducted in the name of the corporation, and is necessarily a proceeding in which one party is styled “ the mayor, councilmen, &c., of the city of Lexington,” and the opposite party consists of those citizens who own property on the street proposed to be widened. This is the mode prescribed in the law, and if this mode cannot be adopted by reason of its conflict with established principles of right and justice, no other can be substituted, and the act is useless. If the mayor is to be regarded as a party plaintiff in such a sense as would, upon principles of natural equity, prevent him from acting as judge, and the function assigned to him in the charter is substantially a judicious one, the whole proceeding falls to the ground. But we take it, that the mayor is no more plaintiff in such a case than the circuit judge is plaintiff in every case wherein the State is on one side and one of its citizens on the other. The judge being-one of the citizens of the State, may in State cases be said to have an interest on the side of the State, as in fact he is one of the persons composing the body politic called the *373State ; but every one sees that this is a refinement, tending to nothing but confusion and embarrassment, and producing no practical good whatever. We look to the statute law, to see where and in what cases the legislature thought a judge ought not to sit, and we do not undertake to interpose restrictions where the legislature has thought none to be necessary. Nor do we consider the mayor as a judicial officer, or as performing any judicial functions in the proceeding. His duties are administrative or executive — the jury is the body selected to perform all the judicial functions required. Hence the law requires them to be selected from the county outside of the corporation limits. The legislative power of the corporation first establishes the street, the mayor has nothing to do except to issue his precept to the constable, and the jury summoned assess the damages. He has no discretion whatever in the matter, nor has he any part assigned in the determination of any question of law or fact in the proceeding. The fact therefore that this officer was not only a nominal plaintiff, but was also a nolninal defendant, being the owner of a lot on the street, and therefore required by the law to be notified of the proceeding, does not disqualify him from the performance of. any duty assigned to him. What has his partiality or impartiality, his interest the one way or the other, to do with the result ? The jury settle the case, and if any party is dissatisfied, an appeal lies. In this case we see how utterly groundless is the complaint of the appellant on this point, when we look at the result of the trial in the circuit court, where the verdict of a second jury awarded smaller damages than were given by the jury summoned by the mayor.

We do not think there was any error in quashing the writ of summons, requiring the appearance of all the persons who were interested, and who refused or neglected to appeal from the assessment of the mayor’s jury. The defendant in the proceeding before the mayor had no joint interest in the subject of controversy, and therefore the twelfth section of the charter allows any person interested, who considers him*374self aggrieved by the verdict of the jury to appeal. Those who do not consider themselves aggrieved need not appeal. Nineteen out of twenty citizens living on a street proposed to be widened may be perfectly satisfied with the result of the proceeding; are they compelled to share the burthen find cost of an appeal, taken by the twentieth who is dissatisfied, and with whom the nineteenth has no interest in common whatever ? The question is not whether all who considered themselves aggrieved might not join in the appeal, but whether those who were satisfied should be compelled to join. The effect of an appeal by one might, it is true, defeat the whole proceeding, and we see no objection to the joinder of all who feel dissatisfied witli the verdict in the appeal, although their interests are entirely distinct. The proceeding is altogether statutory, and is not in the nature of an action at law or bill in chancery, but is to be governed by the act, and there is nothing in the charter which requires all the owners of lots on the street to be joined in an appeal whether they choose to acquiesce in the verdict of the mayor’s jury or not.

Upon the trial in the circuit court, the appellant’s counsel asked a witness “what he estimated to be the benefit to the lot owners on the south side of the street, by widening the street without taking anything from their lots and taking the whole sixteen feet from the north side.” This question was not allowed to be answered, and an exception was taken to the ruling of the court on this point. The question to be decided by the jury was, what damages the appellant would sustain by the proposed alteration of the street. These damages had to be paid by the corporation, whether the advantages of the opposite lot owners were of no value or should greatly exceed the estimated damages assessed. It was of no consequence, therefore, to the appellant how much her neighbors across the street might be benefited, provided she was not injured, or, if injured, the injury should be fully compensated. The amount of benefits to the owners of lots on the one side of the street would have no tendency to show *375the amount of damages sustained on the other side, and might, we can easily perceive, tend to erroneous conclusions. A lot owner on one side may have expended ten thousand dollars in buildings and other improvements, and the proposed change in the width of the street might be an advantage worth to him one thousand dollars, whilst the same change would only benefit the owner of a lot on the other side to the amount of one hundred dollars, or perhaps be an injury to him to that amount, because of the lot being entirely unimproved. Is the owner of the last named lot to be paid the thousand dollars where his injury is only one hundred dollars,'merely because the owner of the opposite lot has been benefited to that amount ? There would be no justice in such a course, and we think the question was properly excluded.

The fourth-instruction given for the respondents was erroneous, but the jury disregarded it, or rather they found the appellant to be the owner of the ground proposed to be taken. It is therefore no cause for a reversal.

Judgment affirmed;

Judge Ewing concurs. Judge Scott absent.