24 Fla. 209 | Fla. | 1888
delivered the opinion of the court:
I. Judge Broome, of the Seventh Circuit, on the presentation of the bill to him on the 6th day of April of the present year, made an order enjoining, until the further order of the court, the defendants, appellees, from moving the county records from Enterprise, the old county site. Three days afterwards he dissolved the injunction and dismissed the bill. From the latter order complainants appealed to the June term. In view of the public interests involved and by consent of parties we consented to hear the case at the present-term.
II. The first question to be disposed of is that of Judge Broome’s legal qualification to entertain the mandamus proceedings set up in the bill. He, according to the allegations of the bill, signed the petition to the County Commissioners for an election on the question of changing the location of the county site. It is claimed that from the fact of
The statute of 1862, sec. 28, p. 337, McC’s. Digest, provides that no Judge of any court or Justice of the Peace shall sit or preside 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 interest, consanguinity or affinity to either of the parties; nor shall he entertain any motion in the cause other than to have the same tried by a competent tribunal. Sec. 28, McC’s. Dig. The act 1870. sec. 30 of the Digest, declares that no Justice, Judge or juror shall be disqualified from sitting in the trial of any suit in which any county or municipal corporation is a party by reason that such Justice, Judge or juror is a resident or tax-payer within such county or municipal corporation.
The statute of 1862 is cited by counsel for appellants, and it is argued by them that no signer of the petition would have been a competent juror, had an issue of fact in the mandamus been sent to a jury. Issues of fact in mandamuses are tried in this State by the Judge or court, and not by a jury, (State ex rel. vs. Commissioners of Suwannee County, 21 Fla., 1,) but it is yet true that the same interest that would disqualify persons as jurors, were they triers'of facts in mandamus proceedings, will disqualify a Judge.
The first section of our statute regulating the change of county sites is as follows: The registered voters of any county in this State wishing to change the location of their county site shall present to the Board of County Commissioners of such county a petition signed by one-third of the registered voters praying for a change of the location of such county site. The other sections make it the duty of the commissioners to order an election upon receiving such pe
The location of county site is a public question in which all the registered voters and citizens of a county have a common interest. The fact that a person signs a petition “ praying for a change of location ” of the county site is evidence that he desires a change and that in his opinion the public convenience and welfare demand that an election shall be held, at which the judgment of the registered voters of the county as to whether there shall be a change, and to what place the change shall be made, shall be taken ; but it is not evidence of what particular place he may desire the change to be made to, nor-that his wish for a change is characterized by any motive other than the promotion of the public good and common convenience. It is not evidence that he has any pecuniary interest in any place that may be voted for as the county site, nor is the issue in itself one of pecuniary interest, but it is a public question in which each elector may express his judgment and desire upon the question of calling an election, by signing or refusing to sign the petition, and, at the election, by voting for whatever place he may please, without thereby subjecting himself to the imputation of acting under the influence of improper motives or personal interest.
It is true that the same interest that would disqualify a juror will, under our statute, disqualify a judge,but the fact of having signed such a petition is not evidence of any interest within the meaning of the term as used in the statute. Whatever effect it may in its consequences lead to, as to such signers, would result also as to any other citizen similarly situated, though not a signer.
The interest meant by the statute is property interest. In Inhabitants of Northhampton vs. Smith, 11 Metcalf, 395, it is said that the interest must be a pecuniary or proprietary
In Rogers vs. Cypert, Judge, decided by the Supreme Court of Arkansas in 1881, and cited and explained in Foreman et. al., vs. Town of Marianna, 43 Ark., 331, there was an application for a mandamus to compel a Circuit Judge to entertain and act upon a petition for a writ of certiorari to bring up the record of proceedings had in the County Court under a local option liquor law. The Circuit Judge answered the mandamus by stating that he had not refused the certiorari in the exercise of his sound discretion, but had refused to take any cognizance of the application for it, for the reason that “ his wife and children had signed the original petition to the county court for the prohibition, and that he supposed he was thereby disqualified from acting in the case under that clause of the Constitution which forbids a judge from presiding where either of the parties shall be connected with him by consanguinity or affinity within such degree as may be prescribed by law.” The mandamus was granted, the view of the court being that although the wife and children of the judge were technically parties, as being
In Foreman et al., vs. Town of Marianna, Supra, it was held that a judge of a county court was not disqualified to act upon an application to annex territory to a municipal corporation by reason of being a resident of the corporation and having voted for or against the annexation. Eakin, J., speaking for the court, says : The judicial ermine does not absolve the individual from the duty, nor deprive him of the right to participate with other citizens in public movements for the public good which do not in any particular manner affect his private interests more than those of other citizens. How far he may do so in anticipation of the probability or chance that he maybe called to decide upon the legality of such proceedings, is with him a consideration of prudence or good taste, to be determined in his own breast. If he were thereby disqualified he would be required to renounce all civic privileges. He could not even try a contested election case where he had voted for one of the contestants.
In Webster vs. County of Washington, 26 Minn., 220, the conclusion reached is that an ownership of lands contiguous to the line of a proposed county highway, which may affect or enhance the value of such lands, is not such an interest as legally precludes the owner from acting, as a member of the Board of County Commissioners, upon a petition signed by himself and others fur establishing the road. The road as proposed did not pass over this Commissioner’s land; his only interest was that of an adjacent proprietor of land indirectly benefited by the proximity of a new road, and the additional facilities it might give to
The Supreme Court of Missouri decided in Bowman’s Case, 67 Mo., 146, that a Judge was not disqualified to sit in the trial of a case instituted by persons composing a committee of a corporation by reason of the fact that he was an honorary member of the corporation.
In Commonwealth vs. O’Neal, 6 Gray, 343, it was held that members of an association to prosecute violations of the statutes prohibiting the manufacture and sale of intoxicating liquors, who have each by subscribing a certain sum to the funds of the association rendered themselves liable to pay, to the extent of their subscription, their proportion of expenses incurred in such prosecutions, are not incompetent to sit as jurors on the trial of such a prosecution commenced by the agent of the association and carried on at its expense, if it does not appear but that they have paid their subscription before this prosecution was commenced. For aught that is shown, says this opinion, each of them may have paid before this prosecution was commenced the full sum he had subscribed ; it therefore does not appear that either of the jurors had any, even the smallest, pecuniary interest in the event of the prosecution and the court cannot presume without evidence that they had. They might have been interrogated on oath whether they had expressed or formed any opinion in the case or were sensible of any bias or prejudice, and their answers might possibly have been such as to exclude them from the panel, but this was
There is nothing in the record indicating that Judge Broome has advised or in any manner encouraged the institution of the mandamus proceeding.
It is of course not pretended that the Judge has any prejudice, nor has any action under the statute authorizing a challenge ot a Judge on such ground been taken.
We do not think if an issue of fact in the mandamus proceeding could have been sent to a jury for trial that one of the signers of the petition would have been rendered incompetent as a juror on the ground of interest by the mere fact of being such signer. Whether in his connection with the petition a signer of it may have expressed or formed such an opinion as would disqualify him as a juror, or had through such connection become possessed of prejudice or bias, are questions to be decided when they are presented.
We conclude upon the principles of law governing in such eases that Judge Broome was not disqualified by reason of any interest to sit in the mandamus case; yet we feel that he would not have signed the petition had it occurred to him at the time of signing it that his competency to sit in any litigation involving the election thereunder might, on that account, be challenged.
III. The next question to be disposed of is whether or not the complainants are concluded from asking relief upon their bill by the mandamus judgment.
The alternative writ of mandamus, set up in the chancery bill, recites that it has been suggested that Isaac A. Stewart, J. B. Jordan, J. J. Banta, G-. A. Dreka, F. S'
Three of the Commissioners, D. Freeman, J. G. Poppell and J. D. Ross, answered, stating that said Isaac A. Stewart, J. B. Jordan, J. J. Banta, G. A. Dreka, F. S. Goodrich, J. G. Owen and Samuel Lowrie, being registered voters of said county, with others, registered voters of Volusia county, to the number of 825, did sign and present a petition to the Board of County Commissioners of Volusia, county on February 7th, 1888, while said board was in session, and that the petition contained the names of more
That the only reason an election was not ordered on presentation of the petition, was that G. D. Bryan, one of the members of the board, said that ho had information from an attorney that an election could not be ordered, and that another attorney advised them to the same efiect. Both attorneys are designated.
That -the said D. Freeman was chairman of the board,, and said J. D. Ross made a motion to order an election, but the same was lost and the said matter was postponed on the advice of an attorney.
That the Commissioners all acted in good faith. That they have attempted to get a meeting of the board since the discovery of the error, caused by the advising attorney and Bryan, but have failed to have a full meeting on account of Bryan disregarding the call of the chairman, and his promises to meet with them.
Judge Broome held the answer to be insnfficint, and granted a peremptory writ commanding the Commissioners to meet on a day to he specified by the chairman, for the purpose of ordering the election.
If there was any fatal deficiency in the petition filed before the Couuty Commissioners, or any other good reason in law why the election should not have been called, it could have been interposed as a defence to the alternative writ of mandamus, and it was the duty of the Commissioners to do so. They are the representatives of the county in the matter of their duties under the statute, and if they failed to avail themselves of any legal defence to the writ, the complainants and other people of the county are pre
A judgment against a county or its legal representatives in a matter of general interest to all the people thereof as one respecting the levy and collection of a tax is binding, not only on the official representatives of the county named in the proceeding as defendants, but upon all the citizens thereof, though not made parties defendant by name. Clark vs. Wolf et al., 29 Iowa, 197; Freeman on Judgments, sec. 178. In Gaskill vs. Dudley, 6 Metcalf, 546, D. recovered judgment by default against a school district in an action on a contract with the district to build a school house, and levied his execution on the goods of G., a member of the district, and it was held that G. could not give evidence that D. had not performed his contract, and therefore ought not to have recovered judgment against the district; and in Lane vs. Inhabitants of School District in Weymouth, 10 Metcalf, 432, the decision was that individual members of a school district had no right to appear and be heard in defence of an action against the district.
If the judgment in mandamus was not as effectual, upon the principle of res adjudícala, against the inhabitants of the county as it is against the County Commissioners, there would be no end to litigation in such cases or in any cases against county officials as such. Terry vs. Town of Waterbury, 35 Conn., 526, 534.
Everyquestionsuggested bythebillas to the validity of the petition, including those as to the names of some of the signers being on the registration lists, and those as to the legality of the registration of others, could, in so far as they were the subjects of judicial inquiry, have been raised by
The award of the peremptory writ adjudicated the legality of the petition, in all respects and settled the question of the duty of the Commissioners to call the election.
When they met pursuant to such call the legality of the petition was in no wise open for their consideration, and nothing more than this need be said of the allegations of the bill as to what they did or did not do in the line of such consideration at their meetings subsequent to the award of peremptory writ.
This bill seeks to open again what had already been adjudicated. In Cromwell vs. County of Sac, 94 U. S., 351, speaking of the effect of a former judgment on the same claim, it is said that it, “ if rendered on the merits, constitutes an absolute bar to a subsequent action. It is a final" ity as to the claim or demaud in controversy, concluding parties and those in privity with them not only as to every matter which wa$ offered and received to sustain or defeat the claim or demand, but as to any other admissible matter which might have been offered for that purpose.” Aurora City vs. Wirt, 7 Wall., 82; People vs. Board of Supervisors, 27 Cal., 655; Durant vs. Essex, 7 Wall., 109. Neither the fact of the admissions in the return to the alternative writ, nor the absence of any issue of fact from the mandamus pleadings, constitute any exception to the rule, for it makes “ no difference in principle whether the facts upon .which the court proceeded were proved by deeds and witnesses or whether they were admitted by parties. And an admission by way of demurrer to a plea ling in which the facts are alleged must be just as available to the opposite party as though the admission had been made ore tenus
IV. The only other ground of appeal requiring consideration at our hands is that as to the dismissal of the bill.
The only relief prayed is an injunction and it is apparent on the face of the bill that there is no ground for such relief. It sets up the proceedings at law which preclude the complainauts from the relief they seek. They can derive no benefit from having the defendant answer, and it would be both useless and a hardship to require the defendants to answer. 2High on Injunctions,secs. 1580 and 1706. Had the bill been filed to restrain the proceeding in mandamus, pending such proceedings, it would have been dismissed for reasons indicated above, - as was done in County Commissioners vs. Bryson, 13th Fla., 281. Had this bill not been dismissed by the Chancellor it would be our duty to direct a dismissal, as, considering the whole of it, there is no equity in it. Freeman vs. Timanus, 12th Fla., 393; 1 D. C. P. & P., 557, note 4.
The order appealed from is affirmed, and it will be decreed accordingly.