Decatur Tp. v. Board of Com'rs of Marion County

• Decision Date: 13 February 1942
• Docket Number: 16555.
• Citation: 39 N.E.2d 479,111 Ind.App. 198
• Parties: DECATUR TP. et al. v. BOARD OF COM'RS OF MARION COUNTY et al.
• Court: Indiana Appellate Court

39 N.E.2d 479

111 Ind.App. 198

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

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 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.

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, it is the duty of all officials called upon to exercise judgment and discretion as between litigants to foster and build up confidence in the impartiality, integrity and disinterestedness of the functioning of our democratic form of government. This cannot be done when the litigants feel that the official deciding is personally interested. Despite those facts there are, and of necessity must be, certain legal limitations upon the disqualification because of interest of officers acting in a judicial or quasi judicial capacity.

A judge or an official exercising judicial functions may act in the proceeding where he is disqualified by interest, or for other reasons, if his jurisdiction is exclusive and there is no legal provision for supplying a substitute and his refusal or failure to act would prevent determination. Galey v. Board of Com'rs of Montgomery County, 1910, 174 Ind. 181, 91 N.E. 593, Ann.Cas.1912C, 1099; Metsker v. Whitsell, 1914, 181 Ind. 126, 127, 103 N.E. 1078; Evans v. Gore, 253 U.S. 245, 40 S.Ct. 550, 64 L.Ed. 887, 11 A.L.R. 519; Annotations: 39 A.L.R. 1476; 42 L.R.A.,N.S., 788; L.R.A.1915E, 858; Ann.Cas.1917A, 1061.

Where the judicial officer is a citizen or taxpayer of a municipality and he is called upon to determine a controverted matter in which the municipality is a party, his disqualification is dependent largely upon the manner and extent to which his interest will be affected. In the case of Foreman et al. v. Town of Marianna, 43 Ark. 324, 329, the question presented was whether a judge was disqualified to act upon an application to annex territory to a municipal corporation of which the judge was a resident, when he had voted upon the question of annexation as a voter of the municipality. In the course of its opinion the court said: "This is not a suit of a personal nature, concerning property or rights of persons. A general interest in a public proceeding, which a Judge feels in common with a mass of citizens, does not disqualify. If it did, we might chance to have to go out of the State, at times, for a Judge. The 'interest' which disqualifies a Judge, under the Constitution, is not the kind of interest which one feels in public proceedings, or public measures. It must be a pecuniary or property interest, or one affecting his individual rights; and the liability or pecuniary gain or relief to the Judge must occur upon the event of the suit, not result remotely, in the future, from the general operation of laws and government upon the status fixed by the decision."

See, also, Sioux City v. Western Asphalt Paving Corp., 223 Iowa 279, 271 N.W. 624, 109 A.L.R. 608; Metsker v. Whitsell, 1914, 181 Ind. 126, 103 N.E. 1078; Annotations: 6 Ann.Cas. 408; 33 A.L.R. 1322.

In the case of Metsker v. Whitsell, supra [181 Ind. 126, 103 N.E. 1082], the Supreme Court said: "A judge's direct, pecuniary interest in the result of the litigation furnishes sufficient ground for his recusation, regardless of whether such interest is great or small. [Cases cited.] However, where the interest is indirect, such as that of a general taxpayer, it does not ordinarily disqualify. [Cases cited.]"

In the case of Carr v. Duhme, supra, the board of commissioners rendered a final judgment establishing a drain and ordering its construction. One of the commissioners, as a landowner was assessed for the construction thereof and he had filed a remonstrance against the same. Upon appeal to the Circuit Court it refused to assume jurisdiction of the matter and ordered it certified back to the board because of the participation of the interested commissioner. The Supreme Court, although admitting that the commissioner was disqualified to act in the particular matter, held that the Circuit Court erred in returning the cause to the board of commissioners. It held that the disqualification of the particular commissioner did not make the proceedings of the board void, but rendered them voidable only, and that the disqualification and consequent error might be waived by failure to make seasonable objection to the same. The court in its opinion said: "It was appellees' duty, if they desired to object to his acting because of...