Decatur Tp. v. Bd. of Com'rs of Marion Cnty.
| Decision Date | 13 February 1942 |
| Docket Number | No. 16555.,16555. |
| Parties | DECATUR TP. et al. v. BOARD OF COM'RS OF MARION COUNTY et al. |
| Court | Indiana Appellate Court |
DECATUR TP. et al.
v.
BOARD OF COM'RS OF MARION COUNTY et al.
No. 16555.
Appellate Court of Indiana, in Banc.
February 13, 1942.
Appeal from Shelby Circuit Court; James A. Emmert, Judge.
Action for injunction by Decatur Township and others against the Board of Commissioners of Marion County, Indiana, and others, wherein the defendant filed a cross-complaint. The action was consolidated with an action by George Burkhart against Charles Grossart, Auditor of Marion County, and others, for a writ of mandate. From an adverse judgment, plaintiffs appeal.
Affirmed.
[39 N.E.2d 480]
Johnson, Zeichel & Johnson, of Indianapolis, Herbert Jones, of Shelbyville, and Frances E. Thomason, of Indianapolis, for appellants.
Geo. Burkhart and Kriner & Harman, all of Indianapolis, for Perry Tp. Trustee.
Kivett & Kivett, of Martinsville, for Perry Tp. of Marion County and Perry School Tp.
BEDWELL, Presiding Judge.
By this action the appellants sought to have declared void an order of the Board of Commissioners of Marion County, Indiana, entered on November 3, 1933, fixing the boundary line between Perry and Decatur Townships of Marion County, Indiana, and to restrain the appellees from recognizing the boundary fixed by such order and from taking any steps to assess or collect taxes on property transferred to Perry Township by such order.
The appellees filed an answer in two paragraphs, paragraph one of which was in general denial and paragraph two of which was an answer of former adjudication. Part of the appellees filed a crosscomplaint to compel the Auditor of Marion County to place the property changed from Decatur Township to Perry Township, by such order of the Board of Commissioners, on the tax duplicates as property of Perry Township. A similar action was filed by George Burkhart in which he sought to mandate the Auditor and Treasurer of Marion County to transfer the same property from Decatur Township to Perry Township. This action was consolidated with the other action and issues were closed by answers or replies of denial to aforesaid pleadings.
The matter was submitted to the trial court for determination, and it made a general finding in favor of the appellees and rendered judgment thereon. The appellants filed timely motion for a new trial and on appeal they are relying on the grounds thereof specifying that, (a) the decision of the court is not sustained by sufficient evidence, and (b) the decision of the court is contrary to law.
Appellants admit that there is but one fundamental question involved in the appeal, and that is the legal right of the Board of Commissioners of Marion County to change the boundary line between Perry and Decatur Townships, as such boundary line was changed by the order of such Board on the 3rd day of November, 1933.
It appears from stipulated facts that such change in boundary line would result in transferring from Decatur Township to Perry Township certain property of the Indianapolis Power & Light Company of the assessed valuation of $5,926,230. It further appears that the order making such change in boundary line was adopted by the votes of two members of the Board of County Commissioners of Marion County, and that one of such two members approving such order was a resident freeholder and a taxpayer of Perry Township.
Appellants first attack the validity of such order upon the ground that the member of the Board of County Commissioners who voted for such order, and who was a taxpayer and freeholder of Perry Township, was disqualified because of interest from acting thereon. It is not suggested or claimed that such member was interested or affected by the proposed change in boundary line, except, indirectly, as the rate of taxation upon his taxable
[39 N.E.2d 481]
property might be reduced because of an increase in the amount of the taxable property of Perry Township resulting from the addition thereto of the property of the Indianapolis Power & Light Company.
[1] The rule requiring fairness, impartiality and disinterestedness on the part of judges or of those officials who exercise judicial or quasi judicial functions, is as old as the history of the courts. It is imposed in the constitution of some of the states. In the case of Carr v. Duhme, 1906, 167 Ind. 76, 79, 78 N.E. 322, 323, 10 Ann.Cas. 967, in discussing the subject of the disqualification of judges and judicial tribunals, the Supreme Court said:
“It is an ancient maxim of the law that no man should be a judge in his own cause, and this principle still prevails wherever judicial tribunals are maintained. Winters v. Coons [1904], 162 Ind. 26, 69 N.E. 458. It is of such potent force that, under our Constitutions and enlightened sense of justice, a legislative act which should undertake to make a man arbiter of his own cause would be held void. Cooley's Const. Lim. (5th Ed.), §§ 403-410.
“At common law the disqualification of a judge because of interest in the subject-matter brought before him did not affect his jurisdiction, and his acting in the cause was regarded as a mere irregularity or error on account of which a timely recusation would afford ground for the reversal of his judgment upon appeal or writ of error.”
Next in importance to the duty of rendering a righteous decision is that of doing it in such a manner as will beget no suspicion of the fairness and integrity of the judge. Crook v. Newborg & Son, 124 Ala. 479, 27 So. 432, 82 Am.St.Rep. 190.
Although there may be the legal right to act...
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