Keith v. Gerber

• Decision Date: 26 June 1973
• Docket Number: No. 13363,13363
• Citation: 156 W.Va. 787,197 S.E.2d 310
• Court: West Virginia Supreme Court
• Parties: Billy Joe KEITH v. C. R. GERBER, Mayor of the City of St. Marys.

Page 310

197 S.E.2d 310

156 W.Va. 787

Billy Joe KEITH v. C. R. GERBER, Mayor of the City of St. Marys.

No. 13363.

Supreme Court of Appeals of West Virginia.

Submitted May 29, 1973.

Decided June 26, 1973.

Syllabus by the Court

1. Where a judge has a pecuniary interest in any case to be tried by him he is disqualified from trying the case, and prohibition is the proper remedy to restrain such trial.

2. 'It is a fundamental rule in the administration of justice that a person can not be a judge in a cause where in he is interested, whether he be a party to the suit or not.' Point 1, syllabus, Findley v. Smith, 42 W.Va. 299. (26 S.E. 370)

3. 'Every procedure which would offer a possible temptation to the average man as a judge to forget the burden of proof required to convict the defendant, or which might lead him not to hold the balance nice, clear and true between the State and the accused, denies the latter due process of law. Tumey v. Ohio, 273 U.S. 510, 524, 47 S.Ct. 437, 71 L.Ed. 749.' Point 2, syllabus, Williams v. Brannen, 116 W.Va. 1. (178 S.E. 67)

Campbell & Hanlon, David G. Hanlon, Harrisville, for relator.

Carl P. Bryant, St. Marys, for respondent.

BERRY, President:

The relator, Billy Joe Keith, filed a petition for a writ of prohibition with this Court on May 8, 1973 praying that a rule be issued against the respondent, C. R. Gerber, the Mayor of the City of St. Marys, West Virginia, to show cause why a writ of prohibition should not be awarded the relator to prohibit the respondent from proceeding against the relator on a certain traffic citation summoning him to appear before the respondent. The relator's primary contention is that the mayor should be disqualified from hearing the case because the mayor, acting as municipal judge, has a pecuniary interest in the outcome of the case. A rule to show cause was issued by this Court on May 14, 1973 returnable May 29, 1973 at which time the case was submitted for decision on briefs, exhibits, and oral arguments on behalf of the respective parties.

It appears from the pleadings that the relator was issued a traffic citation on May 2, 1973 by a municipal police officer of the City of St. Marys, West Virginia.

The relator contends that Mayor Gerber, as municipal judge, should be disqualified from trying his case because the mayor has a pecuniary interest in the outcome of the case. The major, in addition to his $300 per year salary, receives $5 for each conviction he obtains in his court. The $5 fee for each conviction is paid into the city's general fund but subsequently returned to the mayor. The relator contends the mayor has received an average of $2,118 per year from the $5 fees for the last five years as additional compensation for his services as municipal judge. If a person is found not guilty of the violation, the mayor receives no compensation for having heard the case.

Although the respondent filed an answer denying the allegations in the relator's petition, an exhibit was filed showing that the mayor received monies for the conviction of individuals tried by him in the mayor's court, and it was admitted on argument and brief by counsel for the respondent that the mayor received $5 for each conviction of cases tried in the municipal court.

It has been repeatedly held that where a judge has a pecuniary interest in any case to be tried by him he is disqualified from trying the case. Tumey v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749; Findley v. Smith, 42 W.Va. 299, 26 S.E. 370; Williams v. Brannen, 116 W.Va. 1, 178 S.E. 67; State ex rel. Osborne v. Chinn, 146 W.Va. 610, 121 S.E.2d 610; State ex rel. Moats v. Janco, W.Va. 180 S.E.2d 74.

There was no usage at common law by which justices of the peace, or minor judicial officers, were paid fees on conditions that they convict the accused, and such practice clearly violates the due process clause of the Federal Constitution. Tumey v. Ohio, Supra. It was held by this Court in point one of the syllabus of Findley v. Smith, Supra, that: 'It is a fundamental rule in the administration of justice that a person cannot be a judge in a cause wherein he is interested, whether he be a party to the suit or not.'

It was held in the case of Williams v. Brannen, Supra, that no man can be a judge in his own case, and that this maxim applies in a case where a judge or inferior judicial officer is interested, as well as in a case in which he is a party. The second point of the syllabus...