Barnett v. Ashmore

• Decision Date: 03 November 1892
• Citation: 31 P. 466,5 Wash. 163
• Parties: BARNETT, SHERIFF, v. ASHMORE, COUNTY AUDITOR.
• Court: Washington Supreme Court

31 P. 466

5 Wash. 163

BARNETT, SHERIFF, v. ASHMORE, COUNTY AUDITOR.

Supreme Court of Washington

November 3, 1892

Appeal from superior court, Lewis county; EDWARD F. HUNTER, Judge.

Application by J. W. Barnett, as sheriff, for a writ of mandamus to compel R. N. Ashmore, as auditor of Lewis county, Wash to issue a warrant for the payment of certain expenses incurred by the applicant in providing a place for holding the superior court of Lewis county. Writ granted, and defendant appeals. Reversed.

Reynolds & Stewart, for appellant.

H S. Elliott, for respondent.

DUNBAR J.

The first contention of the appellant is that the court erred in not granting the change of venue prayed for. We think the record supports this contention. While it must be conceded that a question of change of venue is a matter very largely discretionary with the trial judge, where this discretion is evidently abused the appellate court will not hesitate to give relief. In this case the affidavit on which the motion was based shows such a state of facts that the judge ought not for a moment to have hesitated to grant it. According to the judge's own statement, he was interested financially in the result of the case, and even if, as claimed by respondent, his statement did not make him legally responsible to the sheriff, but only morally responsible, the whole record in the case incorporated in the affidavit shows conclusively that the judge was not only not a disinterested party, but that he was a very intense partisan. It is a primary idea in the administration of justice that a judge must necessarily be free from bias, prejudice or partiality. As was well said by the supreme court of Michigan in Stockwell v. Township Board of White Lake, 22 Mich. 341: "The court ought not to be astute to discover refined and subtle distinctions to save a case from the operation of the maxim, when the principle it embodies bespeaks the propriety of its application. The immediate rights of the litigants are not the only objects of the rule. A sound public policy, which is interested in preserving every tribunal appointed by law from discredit, imperiously demands its observance."

We are also clearly of the opinion that the court erred in sustaining the demurrer to defendant's answer. The law ^[1] provides that if the proper authorities neglect to provide any supreme court or superior court with rooms, furniture fuel, lights, and stationery, suitable and sufficient for the transaction of its business, and for the jury attending upon it, if there be one, the court may order the sheriff to make such provisions, and the expense incurred by the sheriff in carrying such order into effect shall, when ascertained and ordered to be paid by the court, be a charge upon the county. But it must be borne in mind that this authority can only be exercised by the court when the proper authorities neglect to make such provision. In this instance the board of county commissioners were the proper authorities. It clearly appears from the respondent's answer that the condition of affairs did not exist which warranted the assumption of authority exercised by the court. The board of county commissioners had neither refused nor neglected to provide suitable rooms and furniture, etc., for the use of the court. It is alleged in the answer that a large and commodious courthouse was...