City Of Grafton v. Holt

• Decision Date: 31 October 1905
• Citation: 52 S.E. 21,58 W.Va. 182
• Court: West Virginia Supreme Court
• Parties: CITY OF GRAFTON . v. HOLT, Judge.

52 S.E. 21

58 W.Va. 182

CITY OF GRAFTON .

v.HOLT, Judge.

Supreme Court of Appeals of West Virginia.

Oct. 31, 1905.

1. Judge—Disqualification.

A judge, who is a quasi party to a suit in equity under the description of the bill filed by certain named plaintiffs suing on behalf of themselves and all others similarly situated, and who will be bound by or has the right to come into the suit and take the benefit of the decree which may be pronounced therein, and thereby derive a pecuniary benefit, is disqualified from acting as judge in the hearing and determination of the suit.

[Ed. Note.—For cases in point, see vol. 29, Cent. Dig. Judges, §§ 190-207.]

2. Prohibition — Order — Disqualification of Judge.

An order made by such judge awarding a temporary injunction in such suit is not void, but voidable, and the order cannot be vacated or annulled, or its enforcement prevented by writ of prohibition, on the ground alone that the judge was disqualified by reason of interest at the time he entered the order.

3. Taxation—Water Rates.

Water rates exacted by a public corporation from actual consumers are not taxes, but merely the price of a commodity. (Syllabus by the Court.)

Petition by the city of Grafton for writ of prohibition to John Homer Holt, judge of the circuit court of Taylor county. Writ granted.

Dent & Dent and Eugene Somerville, for petitioner.

J. L. Hechmer, C. P. Guard, and Ira E. Robinson, for respondent.

COX, J. This is a petition by the city of Grafton for a writ of prohibition to prohibit Hon. John Homer Holt, judge of the circuit court of Taylor county, from interfering with the city in the management and control of its waterworks plant, and from fixing the rates that said city shall charge consumers of water, and from preventing the city from shutting off the water from such consumers as refuse to pay therefor.

The city of Grafton under its charter authority owns the waterworks supplying the inhabitants and others of the city with water for compensation. On the 27th day of May, 1905, the city, upon recommendation of a committee of its council, adopted a schedule of rates for water to be charged the consumers, uniform as to each class of consumers, but increasing the rates theretofore charged. The increased rates were afterwards embodied in a formal ordinance adopted by the common council, and were required to be collected from and after July 1, 1905. It is claimed that this formal ordinance was not adopted until after the 1st of July, 1905, but that is immaterial here. After the adoption of the new schedule of rates a bill was filed in the circuit court of Taylor county by George M. Whitescarver and certain other persons named, citizens, taxpayers, and consumers of water, on behalf of themselves and the other citizens, taxpayers, and consumers of water of said city, similarly situated, against the city as defendant, for the purpose of setting aside the order of the common council increasing the water rates, and for an accounting to ascertain the amount justly payable, applicable to all consumers of the same class with the plaintiffs, and for the purpose of restraining the city, its officers and agents from shutting off the water on the premises of the plaintiffs, and the other inhabitants of the city similarly situated; it being alleged in the bill that the city is threatening to turn off the water for failure to pay the increased water rates. Upon presentation of this bill to the said judge of the circuit court on the 8th day of July, 1905, a temporary injunction was awarded, practically as prayed for. Afterwards, on the 12th day of July, 1905, pursuant to notice, a motion was made by the defendant city to dissolve the injunction on the ground, among others, that the said judge was without legal authority to act in the suit by reason of being a consumer of water within the city and personally interested in the subject-matter of the litigation. The motion to dissolve was overruled by Judge Holt in vacation, and this proceeding followed.

The petition proceeds upon the theory that Judge Holt, being a consumer of water supplied by the city waterworks, is in the same situation as the plaintiffs in said bill, and disqualified from acting as judge in that suit, or touching the subject-matter of that litigation, by reason of interest. The fact is not denied, but conceded, that Judge Holt is a consumer of water from the city waterworks, and in the same situation as the plaintiffs in said bill, although not made a party therein by name. The first question for us to determine is whether or not Judge Holt, being so situated, is disqualified by reason of interest from acting as judge in that suit. In order to disqualify, the interest of the judge must not be merely an interest in the legal question involved in the suit, but an interest in the subject-matter to be determined thereby. Forest Coal Co. v. Doolittle, Judge, etc., 54 W. Va. 210, 46 S. E. 238.

We must see if this is the kind of a suit which, if maintainable at all, could be maintained by the plaintiffs named, suing on behalf of themselves and all others similarly situated. The general equity rule is that all parties in interest must be before the court; but there are certain exceptions to this rule, which are as clearly established and as well settled as the rule itself. In cases to which the exceptions apply one or more persons representing a class or common interest or common rights are permitted to sue on behalf of themselves and all others in the same situation. The exceptions to the rule have grown up as matters of necessity to meet the ends of justice. To undertake to review all the authorities defining and sustaining the exceptions would be impracticable in this opinion. We shall content ourselves with the citation of a few of those most pertinent to the case at hand: "The rule requiring allparties interested in the subject-matter or object of the suit to be made parties, however numerous, is relaxed when its observance becomes extremely difficult or inconvenient, and a person holding a common interest with numerous others may sue in his own name in behalf of himself and such other persons without joining them in the suit." Hogg's Equity Proced. § 39. "In some cases the persons who hold a common relation to the subject are so numerous that to attempt to unite them all in one suit would be, even if practicable, very inconvenient, and would subject the proceedings to the danger of perpetual abatement and other impediments from intermediate deaths, marriages, incompetency, or change of interests. * * * In such cases the court will allow a bill to be brought by some of the parties on behalf of themselves and all others, taking care that there shall be a due representation of all substantial interests before the court." Bart. Ch. Prac. § 47. A clear statement of exceptions is contained in Judge Story's work on Equity Pleading. This eminent author says: "The most usual cases arranging themselves under this head of exceptions are: (1) Where the question is one of common or general interest, and one or more sue or defend for the benefit of the whole. (2) Where the parties form a voluntary association for public or private purposes, and those who sue or defend may fairly be presumed to represent the rights and interests of the whole. (3) Where the parties are very numerous, and, although they have or may have separate, distinct interests, yet it is impracticable to bring them all before the court." In speaking of the third class of cases mentioned above, the same author says: "In this class of cases there is usually a privity of interest between the parties; but such a privity is not the foundation of the exception. On the contrary, it is sustained in some cases where no such privity exists. However, in all of them there always exists a common interest or a common right, which the bill seeks to establish and enforce, or a general claim or privilege, which it seeks to establish or to narrow or take away. * * * In all these classes of cases it is apparent that all the parties stand, or are supposed to stand, in the same situation, and have one common right or one common interest, the operation and protection of which will be for the common benefit of all and cannot be to the injury of any. It is under such circumstances and with such objects that the bill is permitted to be filed by a few on behalf of themselves and all others, or against a few and yet to bind the rights...