Galey v. Bd. of Com'rs of Montgomery Cnty.
| Decision Date | 29 April 1910 |
| Docket Number | No. 21,444.,21,444. |
| Citation | 91 N.E. 593,174 Ind. 181 |
| Parties | GALEY v. BOARD OF COM'RS OF MONTGOMERY COUNTY. |
| Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Montgomery County; Jere West, Judge.
Action by Charles F. Galey against the Board of Commissioners of Montgomery County. A demurrer to the complaint was sustained, and plaintiff appeals. Affirmed.
John F. McHugh, for appellant. Hanley, McAdams & Artman, R. C. Minton, and E. E. Ballard, for appellee.
Appellant, as a taxpayer of Montgomery county, and as the owner of a saloon of the alleged value of $2,000, which it is alleged would be injured by a vote under the local option temperance law approved September 26, 1908 (Acts 1908, Sp. Sess. p. 4), in favor of prohibiting the sale of intoxicating liquors as a beverage in Montgomery county, brought an action against the board of commissioners of that county to enjoin them from ordering an election upon that question, under a petition therefor under that act. The basis of the complaint, sustaining the demurrer to which is urged here as error, is that each of the members of the board of commissioners had signed the petition for the election, and at the time of filing the complaint, and at the time such board was threatening to order such election, were and had constituted such board from the time the petition was filed, and were “not competent to act therein and determine the same, because they had signed said petition asking for such election, and at the time of such signing were members of said board, and are biased and prejudiced, by reason of said signing, in favor of said petition; that more than 20 per cent. of the voters of said county, exclusive of the members of said board of county commissioners, have signed said petition.” To this complaint a demurrer was sustained. It is urged (a) that no man can be a judge in his own cause; (b) that it follows that the statute prohibits persons from acting when they are required to be disinterested or indifferent, within certain degrees of consanguinity or affinity within the sixth degree, or within the degree of second cousin; (c) that proceedings under petition for a local option election are judicial proceedings.
Taking the last proposition first, it is tacitly conceded by appellee that the order for an election is a judicial proceeding. We do not determine or consider the question, for the reason that, if it is a judicial proceeding, it is manifest that the remedy is not by injunction, for a court will not as a rule enjoin another tribunal from acting in a matter over which the latter has jurisdiction, or where there is a right of appeal. Board v. Conner (1900) 155 Ind. 484, 495, 58 N. E. 828;Kirsch v. Braun (1899) 153 Ind. 247, 53 N. E. 1082; Black on Intoxicating Liquors, § 175; 22 Cyc. of Pl. & Practice.
The maxim that one shall not be a judge in his own case is a sound and salutary one, and should not be relaxed, except when necessity requires or its application is doubtful, but we are not able to perceive that it has any application here. If the proper petition is signed by the necessary number of legal voters, the board of commissioners has no discretion but to order an election. The complaint alleges “that more than 20 per cent. of the voters of said county, exclusive of the members of said board of county commissioners, have signed said petition.” This allegation takes the question of interest, bias, or prejudice affecting their action out of the case, and removes the application of the maxim that no one shall be a judge in his own case; for there is nothing to call for any action by them other than of a purely ministerial character. As defined in Flournoy v. Jeffersonville (1861) 17 Ind. 169, 174, 79 Am. Dec. 468: “A ministerial act may, perhaps, be defined to be one which a person performs in a given state of facts in a prescribed manner, in obedience to the mandate of legal authority without regard to, or the exercise of, his own judgement upon the propriety of the act being done.” Rains v. Simpson (1878) 50 Tex. 501, 32 Am. Rep. 609.
It has been settled in other jurisdictions that signing a petition for a...
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Peavler v. Board of Com'rs of Monroe County
...of judgment upon the propriety of the act. Coghill v. Badger (1981), Ind.App., 418 N.E.2d 1201, 1211 n. 9; Galey v. Board of Commissioners (1910), 174 Ind. 181, 183, 91 N.E. 593, 594; Flowney v. Jeffersonville (1861), 17 Ind. 169, 174. Ministerial acts "are those done by officers and employ......
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Hodge v. Town of Kingman
...v. State, supra at 416 citing Adams v. Schneider (1919), 71 Ind.App. 249, 124 N.E. 718, 720 and Galey v. Board of Comm'rs. of the County of Montgomery (1910), 174 Ind. 181, 91 N.E. 593, 594; State Dept. of Mental Health v. Allen (1981), Ind.App., 427 N.E.2d 2, 4 citing Galey, supra and Adam......
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