41 Fla. 442 | Fla. | 1899
Per Curia,
The Honorable R. M. Call, Judge of the Fourth Judicial Circuit, adjudged himself disqualified to preside in and try a certain cause pending in the Duval Circuit Court, and this is an original proceeding by mandamus to compel him to vacate the order of disqualification and to proceed with the hearing and determination of the case.
It is made to appear that an election was held in the city of Jacksonville on the 20th of June, 1899, to deter
S. H. Hart, a registered voter and tax-payer of the city of Jacksonville, filed a bill against the County Commissioners of Duval county alleging that said election was void for reasons stated, and seeking to restrain the levy of the special three mill tax on the property of any tax-payers of the city, and it was in this suit.that the judge held himself to be disqualified on account of interest, he being the owner of real property situated in the city of Jacksonville subject to taxation.
Section 967, Revised Statutes, provides that "no judge of any court shall sit or preside in any cause to 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 qualified tribunal.” Section 970 provides that “any and all judgments, decrees and orders, except an order for the trial of the cause as hereinbefore provided, made by a judge so disqualified, shall be of no force or validity, and shall be null and void.” These provisions were enacted in December, 1862.
The supposed establishment of the school sub-district in the city of Jacksonville appears to have been under the act of 1895, Chapter 4336, as the election is alleged to- have taken place on the 20th of June, 1899, before the act of this year, 1899, Chapter 4678, went into effect. To- what extent this latter act will affect the district if properly organized is not a matter of concern now. Under the act of 1895, supra, it seems that the millage to be assessed and collected on the property of the district, and to be submitted for that purpose by the district trustees to the County Commissioners, must receive the approval vote of a majority of the qualified voters of the district having real or personal property therein subject to taxation. The commissioners have no discretion as to the amount of the tax levy, and are required to assess and have collected the millage submitted in the estimate of the trustees and approved by vote of the qualified voters.
It is evident that Judge Call was directly interested in the result of the suit instituted before him by Hart, as-a successful termination of it in the latter’s favor will
Some eight years after the passage of the act of 1862 the legislature enacted what is now found in Section 968, Revised Statutes, as follows: “No judge 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 judge is a resident or tax-pajmr within such county or municipal corporation.” Was it the purpose of this provision to qualify a judge to sit in a case in which a county or municipal corporation is a party when he is directly interested in the result by reason of being a resident or tax-payer of the county or corporation ? Lord Coke said the principle that a party could not be judge in his own case was so fundamental that Parliament could not lawfully invest him with authority so to do. Cooley’s Constitutional Lim. (6th ed.), page 506. Judge Cooley says (ibid, page 508): “It has been held that where the interest was that of corporator in a municipal corporation, the legislature might provide that it should constitute no disqualification where the corporation was a party. But the ground of this ruling appears to be that the interest is so remote, trifling and insignificant that it may fairly be supposed to be incapa
There are other authorities bearing upon the power of the legislature to remove disabilities of judges by reason of interest, but a reference to them need not be made, as ‘it is not deemed necessary to determine how whether the legislature intended by Section 968, Re>vised Statutes, to make a judge qualified in the cases therein' mentioned when he was directly interested in. the result of the suit, and if so, whether it was competent for the legislature .to so- provide.
In the opinion of the court the suit of Hart against the County Commissioners for the purposes therein disclosed is not one in which a county or municipal corporation is a party within the meaning of Section 968, and as Judge Call is clearly disqualified by reason of'interest, independent of that section, any further construction of it becomes unnecessary. This section, declaring what are not disqualifications, should not be so construed as to embrace cases not clearly within its letter and spirit, especially so if its purpose was to make a judge sit in the trial of a case in which he is directly interested, though as a tax-payer in common with others. The county of Duval as a county entity is not a party to the suit instituted by Hart, nor is the county in the capacity mentioned a party in interest. The school sub-district is made a corporate being by the statute, but it does not stand for or represent the county.
No question was raised as to the remedy in this case, and, without reference to- it, the opinion of the court is that the Circuit Judge properly held himself to be disqualified to sit in the cause; and it is, therefore, ordered that the peremptory writ of mandamus be denied.