Abbott v. Christopher, 50468

• Decision Date: 12 December 1961
• Docket Number: No. 50468,50468
• Citation: 253 Iowa 311,112 N.W.2d 310
• Parties: J. F. ABBOTT, Appellee, v. Albert CHRISTOPHER, individually and as a member of, and Chairman of the Board of Supervisors of Wright County, Iowa, Appellant, and ED. Kennedy, Harland E. Hill, Everett Nelson and Walter Weidemann as members of the Board of Supervisors of Wright County, Iowa, Appellees.
• Court: Iowa Supreme Court

Page 310

112 N.W.2d 310

253 Iowa 311

J. F. ABBOTT, Appellee, v. Albert CHRISTOPHER, individually and as a member of, and Chairman of the Board of Supervisors of Wright County, Iowa, Appellant and ED. Kennedy, Harland E. Hill, Everett Nelson and Walter Weidemann as members of the Board of Supervisors of Wright County, Iowa, Appellees.

No. 50468.

Supreme Court of Iowa.

Dec. 12, 1961.

Guthrie & Blackburn, Webster City, for appellant.

Blue & Blue, Eagle Grove, for plaintiff-appellee.

Robert Maddocks, County Atty. for Wright County, Clarion, for defendant--Bd. of Supervisors--appellee.

PETERSON, Justice.

This case involves an election contest. Appellee and appellant, Christopher, were opposing candidates for the Board of Supervisors in Wright County in the November 1960 election. The election officials reported 1219 votes for appellant Christopher and 1216 votes for appellee. Appellee filed a contest in accordance with statute. Chapter 62, 1958 Iowa Code, I.C.A.

Christopher was the incumbent and was chairman of the Board of Supervisors. As such, under the statute, he was chairman of the contest court. The other two members of the contest court were such persons as selected by each party, respectively. Section 62.1. Christopher refused to disqualify himself, and insisted on sitting as Chairman of the contest court.

Candidate Abbott filed petition for writ of prohibition, to prohibit Christopher from sitting on the contest court, and for writ of mandamus to require the members of the Board of Supervisors to elect a temporary chairman, other than Christopher, to act as chairman at the contest hearing.

Motion to dismiss plaintiff's petition was overruled by the District Court. The Board of Supervisors did not appeal. Albert Christopher appealed. The members of the Board of Supervisors were necessary parties to make the writ of mandamus effective. Appellant appealed, however as to writ of mandamus, so it needs our attention.

Appellant assigns three propositions relied upon for reversal. 1. The District Court is not authorized to issue a writ of prohibition. 2. The remedy provided by appeal de novo is adequate. 3. The writ of mandamus will issue only to require the performance of a mandatory duty, and cannot be used as a substitute for legislative action.

I. Appellant contends the District Court has no authority to issue a writ of prohibition. Section 604.1, 1958 Iowa Code, I.C.A., outlines the general powers of the District Court: 'The district court shall have general, original, and exclusive jurisdiction of all actions, proceedings, and remedies, both civil and criminal, except in cases where exclusive or concurrent jurisdiction is or may hereafter be conferred upon some other court or tribunal by the constitution and laws of the state, and shall have and exercise all the powers usually possessed and exercised by courts of record.'

The following is an acceptable definition of writ of prohibition: 'As its name imports, the writ is one which commands the person or tribunal to whom it is directed not to do something which, by the suggestion of the relator, the court is informed he is about to do. The writ is commonly defined, substantially, as one to prevent a tribunal possessing judicial or quasi-judicial powers from exercising jurisdiction over matters not within its cognizance, or exceeding its jurisdiction in matters of which it has cognizance.' 42 Am.Jur., Prohibition, Section 2.

In Iowa the petition and writ constitute a common law procedure. It has been referred to and recognized in several Iowa cases, although the specific question raised by appellant as to authority of the District Court has not been heretofore directly decided by this court.

There is no question about appellee's basis for his petition for prohibition and mandamus. Primarily it is based on a specific statutory provision. Section 605.17, 1958 Iowa Code, I.C.A., provides: 'A judge or justice is disqualified from acting as such, except by mutual consent of parties, in any case wherein he is a party or interested * * *.'

30A Am.Jur., Judges, Section 189 provides: 'In some states the mere filing of an affidavit of prejudice is sufficient to disqualify a judge, while in others provision is made for a hearing where it is sought to disqualify him on the ground of prejudice or on other grounds * * * while injunction may be invoked under some circumstances to prevent a disqualified judge from acting, it has been held not to be a proper remedy where prohibition is available.'

42 Am.Jur., Prohibition, Section 27, states: 'It is a well-recognized rule that other remedies being legally inadequate prohibition will lie to restrain a judge from proceeding in a cause which is technically within the jurisdiction of his court but as to which he is disqualified to act by reason of interest, bias, or prejudice.'

The question was exhaustively considered in the North Dakota case of State ex rel. Lucia v. Monson, 55 N.D. 892, 215 N.W. 680. The petition for prohibition was filed as against a county judge who was charged with 'willfully and unlawfully having in his possession intoxicating liquors.' An affidavit of prejudice was filed against the judge, but he refused to disqualify himself. An original petition for writ of prohibition was filed in the Supreme Court. The court said: 'In such case 'an appeal would not be a speedy and adequate remedy.' North Bloomfield Gravel Mining Co. v. Keyser, 58 Cal. 315. 'The writ of prohibition lies to restrain a judge from proceeding in a cause in which he is disqualified * * * although the court over which he presides has jurisdiction of the cause.' Forest Coal Co. v. Doolittle, 54 W.Va. 210, 46 S.E. 238. The filing of an affidavit of prejudice in the manner and form prescribed by section 8955 divested the judge of all further jurisdiction except to procure another judge or to certify the case to the district court. * * *'

The case of Stahl v. Board of Supervisors, 187 Iowa 1342, 175 N.W. 772, 11 A.L.R. 185, involves the disqualification of a member of the board with reference to the establishment of a drainage district in which district he had substantial property interests. This court held he was disqualified and used the following language: '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."

The question of a writ of prohibition was considered in the case of State ex rel. O'Connor, Attorney General v. District Court in and for Shelby County, 219 Iowa 1165, 260 N.W. 73, 75, 99 A.L.R. 967. This was necessarily an original petition filed in this court because it involved a District Court. The writ was denied on the facts of that particular case, but statements appear in the decision which are pertinent herein. The court made the following general statement: 'The power to issue a writ of prohibition can only be exercised by a superior court over an inferior court; it cannot be exercised by a court against another court of equal rank. * * *'

The court further states: 'It is conceded that neither the Constitution nor the statutes of this state expressly confer upon the Supreme Court the power to issue the writ of prohibition. * * * If, then, the legislature cannot, by direct action, deprive the courts of their inherent power to issue common law writs necessary to the exercise of their jurisdiction, it surely will not be held that legislative inaction amounts to a denial of this power. It must be assumed then, that our courts have the right to issue writs of prohibition. (Emphasis ours.) * * * If one seeks to restrain the action of a court because it proposes to act in excess of its jurisdiction, or because of an entire want of jurisdiction, he must do so by writ of prohibition and not by writ of certiorari.'

It will be noted that in the above quotation this court in connection with a writ of prohibition uses the plural word 'courts'.

In the case of Harris' Estate v. West Grove Savings Bank, 207 Iowa 41, 217 N.W. 477, 483, some significant language with reference to disqualification appears, as follows: 'Litigants have the right to the judgment of a court who is above reasonable ground of suspicion of being actuated by self-interest or subject to hostile influence. Public policy imperatively demands that no judge shall act under circumstances which will create distrust or cast doubt upon his...