187 Iowa 1342 | Iowa | 1920
I. The board of supervisors of Ringgold Countj consists of three members. The defendant Vorhies is one member. On the vote upon whether said drainage district should be established, one member of the board other than Vorhies voted “aye,” another member “ño,” and the defendant Vorhies voted “aye.” It is manifest, then, that the vote of Vorhies was decisive. The principal com
For the moment, omitting reference to exceptions to the rule, had Mr. Vorhies acted as the judge of a court, in doing any act which would substantially promote his pecuniary interest, he would have been disqualified. It would be sheer affectation to make an extensive citation of authorities for the proposition that one may not be “judge in his own cause.” But see In re Ryers, 72 N. Y. 1. In Case v. Hoffman, 100 Wis. 314 (74 N. W. 220), a Supreme Court decision was held void, because one judge who had tried the cause below, before he became a member of the Supreme Court, cast the deciding vote. Indeed, courts have gone so far as to hold that an act of assembly which authorizes one to judge his own cause would be void, because such an enactment is a denial of due process of law. Commissioners v. Smith, 233 Ill. 417 (84 N. E. 376); Day v. Savadge, Hobart 85; Cooley on Constitutional Limitations (5th Ed.) *page 175; Coke on Littleton, Section 212.
1-a
The rule is not challenged, but avoidances are attempted. One of these avoidances is that what Vorhies did was the performance of an administrative, rather than a judicial duty. Many distinctions resting on such difference may be found in the books.
A Wisconsin statute empowers political committees to determine what candidates shall have place on the official ballot. It was held in State v. Houser, 122 Wis. 534 (100 N. W. 964, 971), that the members will not be disqualified because they were active partisans and prejudiced. And there is a line of cases which allows ministerial officers to act because the legislature contemplated that those empowered to act would be prejudiced. State v. Houser, supra, is one of those, and a leading case. To like effect is People v. Magee, 55 App. Div. 195 (66 N. Y. Supp. 849); People v.
1-b
Another avoidance is the urging of decisions which sustain quasi judicial action by commissioners or members of boards on the ground that no statute demands that these members or commissioners shall be disinterested, and other
1-c
Citations for appellees indicate reliance upon the fact that an appeal lies to the district court. But such appeal does not afford a free review of the merits. Every reasonable presumption is indulged to support the action of the board (see Temple v. Hamilton, 134 Iowa 706; Denny v. Des Moines County, 143 Iowa 466; Prichard v. Board of Supervisors, 150 Iowa 565, at 584; In re Ryers, 72 N. Y. 1; Chicago, M. & St. P. R. Co. v. Monona County, 144 Iowa 171, 176; Mittman v. Farmer, 162 Iowa 364, 382), and it could well happen that the appellate court would be constrained to hold that it could not interfere on the merits. Denny v. Des Moines County, 143 Iowa 466, is a case in
1-d
But these were distinguished in Vandalia v. Hutchins, 234 Ill. 31 (84 N. E. 715); and the later Illinois case of Commissioners v. Smith, 233 Ill. 417 (84 N. E. 376, at 378), disposed of the right to appeal as an avoidance, by holding that, though there be a right to trial by jury, “still it is entirely clear that, in providing for a commission to determine the amount of money that shall be collected from each property owner, the law of the land forbids the enactment of a statute that permits the selection of a commissioner who personally has a property interest in the result of the deliberations of the body of which he is a member.” And it is held in Bradley v. City, 99 Ind. 417, that? though appeal lies, a person who is financially interested in the opening of a street, or who is a father-in-law to a person whose property will be affected by such opening, is incompetent to act as a commissioner in the assessment of the benefits and damages.
But if free review de now were an avoidance, such review as is permitted in this jurisdiction does not cure the evil of interested action below. Appeal which is closely restricted, in which the merits are, in effect, not considered, in which it is almost conclusively presumed that the action below was right on the merits (see Maben v. Olson, 187 Iowa 1060), surely affords no reason for permitting an interested
1-e
Upon the fact that review of the action of the board is colored by treating such action as a legislative one is build-ed the argument that the interest of the members cannot be considered. Public policy demands that even what is, in strictness, legislation shall be free from improper influence. See Wood v. McCann, 6 Dana (Ky.) 366; Richardson v. Scott’s Bluff County, 59 Neb. 400 (81 N. W. 309), and the cases collected in Dodson v. McCurnin, 178 Iowa 1211, 1216. Now, while it is true we may not set aside an act of the legislature because it is tainted with improper influences, the public policy which condemns such influence commands that we shall not amplify a mere rule of appellate review, which gives the act- of the board the aspect of a legislative act for the purpose of review on the merits, into a rule that we cannot interfere with the establishment of a drainage district on the ground that the board member who cast the deciding vote was unduly influenced. When it comes to that, the action of the board is not beyond our power, as is an act of assembly.
II. Will any or all of these avoidances serve here? Assume that Mr. Vorhies would not be disqualified if his interest were not tangible and pecuniarily substantial; assume that the mere interest of the members of a political committee in the steps that may tend to promote the election of the candidate of their choice will not disqualify them; assume that the interests and prejudices of members of a city council will not disqualify them from acting on a tribunal which considers whether or not a city officer shall be removed from office, — and yet, the case before us is not decided. None or all of these things involve the deciding by.a member of the board of supervisors of matters which will take substantial benefits from the mem
2-a
We held, in Temple v. Hamilton County, 134 Iowa 706, that establishment involved the question whether the district or a large part thereof will be benefited in some degree; that, while there will be tracts benefited more largely than others, and while some will receive no very perceptible benefit, “all these things are subject to adjustment, when the board shall come finally to pass upon the classification of the land and the assessment of the cost of the improvement upon the property within the district. All matters of alleged unequal or improper assessment will then be considered, and the board is authorized upon such hearing to increase, diminish, annul, or affirm the apportionment made by the commissioners.” This makes clear that, in the first instance, the board is given the power to determine the following questions of fact: (1) Whether public utility and general welfare will be benefited by the
III. So far, we have, in a way, assumed that judges alone were disqualified by interest. At any rate, no great stress has been laid upon how interest might affect acts that are not, in strictness, judicial acts. But an interest-less than Mr. Vorhies had, has set aside actions in substance like his. See Bradley v. City, 99 Ind. 420; Appeal of McClure, 137 Pa. 590 (20 Atl. 711); Betts v. City of Naperville, 214 Ill. 380 (73 N. E. 752); Chase v. City of Evanston, 172 Ill. 403 (50 N. E. 241); Shreve v. Town of Cicero, 129 Ill. 226 (21 N. E. 815).
As to judges, it has been held that a decision was void upon which one who had been of counsel, or tried the cause at nisi prius, or was in interest, gave the casting vote. Case v. Hoffman, 100 Wis. 314 (74 N. W. 220); Oakley v. Aspinwall, 3 N. Y. 547; Converse v. McArthur, 17 Barb.
3-a
In Illinois, where earlier cases attached importance to the fact that it was customary (and therefore permissible) for boards, say, to audit the accounts of the members, we find the case of Commissioners v. Smith, 233 Ill. 417 (84 N. E. 376). Therein it was held that selecting one who owns lands within a district to make an assessment of the benefits accruing from the improvement by a drainage ditch, deprives other property owners of due process of law. It seems to us this Illinois case and the one before us are identical, except for the immaterial differentiation that the Illinois case deals with the qualifications of a commissioner appointed to apportion assessments, and that Vorhies acted as a member of a board of supervisors. Indeed, it would seem that such difference militates against the order before us; because, while the officer dealt with in the Illinois case was merely a commissioner to apportion assessments, Vorhies cast the deciding vote on finding the essential facts upon which assessment on part of anyone could be predicated, and that he, in effect, established the improvement. The said Illinois decision is approved in the Vandalia case, 234 Ill. 31 (84 N. E. 715). And it is said in the Vandalia case that the reasoning of Chase v. City of Evanston, 172 Ill. 403 (50 N. E. 241), Murr v. City of Naperville, 210 Ill. 371 (71 N. E. 380), Betts v. City of Naperville, 214 Ill. 380 (73 N. E.
“Where public officers are clothed with important powers, subject to but few effectual restraints, so that the rights of private property are almost at their mercy, it must be held that the acts of such officers must be free from the motives of special pecuniary interest, and courts should open the way to a proper investigation of the sources of such improper motives; and to do otherwise would be to encourage a prostitution of their powers to their own private ends, by a judicial shield, which should be applied to the protection of the oppressed.”
3-b
The constitutional guaranties recognize, as a primal necessity, that there be laws providing impartial tribunals for the adjudication of rights. Commissioners v. Smith, 233 Ill. 417 (84 N. E. 376, at 378). The underlying reasoning is self-evident. The cases that voice it will be found collected in Dodson v. McCurnin, 178 Iowa 1211, 1216. Roughly speaking, the reasoning is that it is not material that evil results actually follow the influence brought to bear; that, even if such evil did result, it would naturally be concealed; that the courts are concerned, not with what is. actually accomplished, but with the tendency of improper influences — are concerned with the natural temptation, and with the fact that, while some might resist, many would not. Nor does it matter the act be not penalized as a crime,
IV. There are some exceptions to the general rule. For instance, a judge disqualified to try the merits may still make a formal order remanding the litigation to a competent judge. Or he may carry out the provisions of an order of remand from a higher tribunal. In Walker v. Rogan, 1 Wis. 511, two of the three judges of the court were disqualified; but it is stipulated that the remaining justice might hear and decide the cause, and that such decision should be entered as the decree of the court. He did this
We have disposed of every element in this summary except whether Mr. Vorhies was so placed by statute as that, unless he acted, justice would fail. Where that is the situation, judges have been permitted to judge their own cause; and there is one noted case wherein the entire membership of the court was impleaded as defendants, and the court acted ex necessitate. It is not action ex necessitate merely because, if one judge do not act, there will not be a given decision, or because, without his acting, the other members of the court may be unable t^agree upon a decision. The legislature may provide a method under which an appellate court shall proceed, if its membership be equally divided. But in the absence of such provision, inability to agree upon a decision is, as seen, not to be cured by letting an interested party cast the deciding vote. In the case before us, two of the three members of the board were qualified to act. • If they agreed, these two could establish the district, or settle, for the time being, that it could not then be established. There was a body competent to act and to decide. It follows that Mr. Vorhies was not acting ex necessitate. Then, too, he could resign as soon as it became apparent that his public duty and his private interests might clash. It is unlikely that, if he resigned for that reason, that his successor, chosen from the entire body of the county, would be a person who also was disqualified. And, unlike the situation in Walker v. Rogan, 1 Wis. 511, it
It may be conceded that much that is said in State v. Fisk, 15 N. D. 219 (107 N. W. 191), In re Cranberry C. D. Dist., 128 Wis. 98 (107 N. W. 25), and some few other cases, runs contrary to the views we have expressed. But we decline to follow these cases.
V. Upon careful consideration, we are unable to find anything in either Shreve v. Town of Cicero, 129 Ill. 226 (21 N. E. 815), or State v. Mayor, 48 N. J. L. 101 (2 Atl. 627), that is relevant to or aids in solving this controversy.
VI. In view of the conclusions reached, we find it unnecessary to determine objections of the appellant other than to the disqualification of Vorhies. — Reversed.