101 Ala. 239 | Ala. | 1893
Thos. J. Taylor, the probate judge of Madison county, declined to take jurisdiction of a contest instituted before him of an election to the office of tax collector of that county, and refused to hear and determine the s'ame. Thereupon the contestant applied to the judge of the circuit court of that county for a writ of mandamus commanding the said judge to hear and determine said contestation. The petition for mandamus disclosed the grounds of Judge Taylor’s recusation to be that he, said Taylor, and the contestee, one Esslinger, were candidates at the general election in August, 1892, the former for the office of probate judge and the latter for the office of tax collector, that they were each returned as elected to these respective offices, and his, Taylor’s, election was at the time he refused to hear said contest between Medlin and Esslinger 1 ‘ being contested before the judge of the circuit court upon grounds, causes and for reasons in all respects similar to the grounds, causes and reasons specified in the statement” of contest filed by said Medlin against said Esslinger. A rule nisi was entered, and upon the coming in of the respondent he demurred to the petition assigning several grounds, two of which assignments were sustained. These were, first, that it appeared by the petition that respondent was “for legal cause incompetent” to hear and determine the contest; and, second, that it is shown by the petition for mandamus that said respondent, judge <&c., “in the exercise of the jurisdiction with which by
To consider the second assignment of demurrer first: It is manifest that the gist of it lies in the assumption that the finding of the judge of his own incompetency and the entry of his conclusion to this effect on the records of the probate court is determinative and conclusive of the inquiry of competency vel non whatever might be the real fact in that connection. That this is not the law, and that, of consequence, it was the duty of the circuit court, and our duty on this appeal, to determine the question of Judge Taylor’s competency on the facts stated in the petition and appearing by the exhibits thereto, wholly regardless of any adjudication he may have made in the premises, is thoroughly established by the decisions of this court. — Ellis v. Smith, 42 Ala. 349; Ex parte State Bar Association, 92 Ala. 113, 8 So. Rep. 768.
So that whatever view Judge Taylor may have entertained of his competency, and however he may have expressed it — in the form of a judgment entry on the records of his court or otherwise — and whether or not he certified his conclusion of incompetency to the register in chancery, the sole question presented by this appeal has to do with the facts out of which incompetency is supposed to be evolved, and must be determined accordingly as we find or do not find those facts to involve a disqualifying interest on the part of Judge Taylor in the result of the contestation he was called on to try.
That Judge Taylor did not have a disqualifying interest in the result of the case, within the provisions of our constitution and statutes, is virtually confessed in the argument of counsel and can not be doubted. To come within these inhibitions the interest must be a pecuniary one to be affected by the judgment in the particular case, and not merely an interest, pecuniary or other, in the question involved but not in the result of the particular case, and which, though not precluded by the judgment therein, may be affected by the "general operation of law on the status fixed by the decision.” Judge Taylor not only had no pecuniary interest in the result of this contestation, but he had no interest whatever that could
It is the opinion of the court, however, that under the doctrines of the common law, aside from our constitutional and statutory provisions, he had such a personal interest in the questions involved in the contestation of Medlin, in the nature of things, such a bias in favor of one of the parties to the case, as disqualified him to hear and determine the same, and justified his action in declining so to do. — Gill v. State, 61 Ala. 169, and authorities there cited.
The judgment of the circuit court denying the application for mandamus must be affirmed.
