104 N.E. 624 | NY | 1914
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The unfortunate controversy resulting in the expulsion of the deceased grew out of an attempt by the supreme council to increase rates, which this court held to be illegal. (Green v.Royal Arcanum,
The learned judge at Trial Term and four of the learned justices of the Appellate Division were agreed upon the proposition that the members of the trial committee were disqualified. The difference between the courts below was limited to the single question whether the jurisdiction of the trial committee could be attacked collaterally in this action on the benefit certificate. As that question lies at the threshold of the case it may properly be examined first.
The ruling of the trial court that the expulsion proceedings were voidable only, and not open to collateral attack, was made on the authority of Foot v. Stiles (
In this state the statutory disqualification of a judge deprives him of jurisdiction (Oakley v. Aspinwall, *378
The rule that no man should be a judge in his own cause is so founded on common right and reason that both Lord COKE and Chief Justice HOLT asserted the power to declare acts of Parliament repugnant to it void. (Bonham's Case, supra; City of London v.Wood, 12 Modern, 669, 688.) The important question in this case is, what interest will disqualify. The appellant asserts that a direct pecuniary interest is necessary to disqualify a judge at common law. There are expressions in the books which seem to support that view, but as a rule they have been used in contradistinction to mere bias resulting from a remote interest in the question to be decided and in cases in which pecuniary interests constituted the subject-matter. In this case the subject-matter was the charge which the deceased was alleged to *379
have made against the members of the supreme council, three of whom were his judges. It is asserted that the only question before the committee was whether the charge was made and that the publication in the newspapers of the defamatory interviews was a violation of section 612, subdivision 2, quoted in the above statement of facts, regardless of whether they were true or false Even assuming that position to be well taken, it ignores the third specification, to which the truth would plainly constitute a defense. Moreover the general charge was of improper conduct, violative of his duties or of his obligation and unbecoming his profession as a member of the order. Undoubtedly it would injure the order temporarily at least, to accuse its officers of being "grafters," but if the charge were well founded and impartial judge might conclude that it was made in the discharge of the highest duty to the order, and that the temporary injury resulting from the exposé of wrongdoing was more than offset by the permanent good. It is no longer the law that the greater the truth the greater the libel. At any rate one of the issues presented by the pleadings was the truth of the defamatory charges against the members of the supreme council, and of course the question of jurisdiction must be determined by the issues framed for trial, not by the evidence produced on the trial. It would seem plain that the trial committee had a direct interest in the determination of the question whether they themselves were grafters, unless the law places property above reputation. It is as though a judge defamed were to try the defamer for a criminal libel. While there is authority to support the view that he would not be disqualified in such a case (State v. Sutton,
There are cases in which it is suggested that the rule applicable to jurors applies, and that mere bias or prejudice will suffice. (Moses v. Julian,
The rule of necessity cannot apply in this case, as the trial committee could have been composed of members of the order who were not members of the supreme council. Certainly if all the latter were disqualified, it would not be practicable to appoint a committee from among their members.
The judgment of the Appellate Division should be affirmed, with costs.
WILLARD BARTLETT, Ch. J., WERNER, HISCOCK, CHASE and COLLIN, JJ., concur; HOGAN, J., not sitting.
Judgment affirmed.