McCoy v. Handlin, No. 3812.

CourtSupreme Court of South Dakota
Writing for the CourtPER CURIAM.
Citation35 S.D. 487,153 N.W. 361
Docket NumberNo. 3812.
Decision Date18 June 1915
PartiesMcCOY v. HANDLIN, State Auditor.

35 S.D. 487
153 N.W. 361

McCOY
v.
HANDLIN, State Auditor.

No. 3812.

Supreme Court of South Dakota.

June 18, 1915.


Application for mandamus by James H McCoy against J. E. Handlin, as State Auditor. Writ granted.

[153 N.W. 362]

Gaffy, Stephens & Fuller and John Sutherland, all of Pierre, for plaintiff.

Joe Kirby, of Sioux Falls, for defendant.


PER CURIAM.

Chapter 239, Laws 1911, provides:

“That whenever a judge of the Supreme Court whose legal residence shall be at some place other than the state capital shall have changed his place of actual residence to the capital, there shall be paid to such judge in consideration of expenses incident to removal to the capital, the increased expenses of living at a place other than his legal residence, the expenses of traveling to and from such legal residence the fixed sum of fifty dollars for each month payable upon the certified vouchers of such judge filed in the office of the state auditor.”

[153 N.W. 363]

This law, if valid, went into effect on July 1, 1911. Ever since that date, and up to April, 1915, the judges of this court, having changed their places of actual residence to the city of Pierre in order that they might better discharge the duties of their office, did, at the end of each month and upon warrants issued by the state auditor, each receive the said sum of $50. The present state auditor refused to issue warrants to the several members of this court for the amounts claimed by them to be due, under the above law, for the month of April, 1915, wherefore the plaintiff, one of the judges of this court, instituted this proceeding in this court, and seeks a writ requiring the issuance to him of a warrant for the sum of $50, being the amount claimed to be due him as aforesaid. Defendant, in answer to the alternative writ issued herein, contends: (1) That the writ should be vacated, quashed, and set aside (a) because plaintiff has a plain, speedy, and adequate remedy in the ordinary course of law; (b) because, under section 25, C. C. P., plaintiff is compelled to proceed in an action against the state and not against the state auditor. (2) That, owing to their interest in the question involved herein, all the judges of this court are disqualified from hearing, considering, and participating in this proceeding. (3) That said chapter 239, supra, is unconstitutional, being in conflict with section 2, art. 21, and section 30, art. 5, of the Constitution of this state. While defendant contends that plaintiff has a plain, speedy, and adequate remedy in the ordinary course of law, the only remedy suggested, either in defendant's answer or brief, is an action against the state under section 25, C. C. P., which action can be brought in this court only. Thus we have three questions presented: (1) Has plaintiff sought the proper remedy? (2) Has this court, owing to the interest of its members in the ultimate question raised, the right and power to consider and determine the same? (3) In chapter 239, Laws 1911, constitutional?

[1][2] The question which would naturally suggest itself as the one to be first determined is whether this court is without right or power to sit, owing to the undisputed fact that each member thereof has a direct and financial interest in the ultimate question before it. Defendant says:

“It is true that, if this court does not act, there is probably no other tribunal that can try Judge McCoy's case. *** Judge McCoy will in this case, I am certain, have to wait until the people have provided some other tribunal. At present they have provided only one. That one is the state auditor. His judgment is now final. No appeal is provided from him, and you, the honorable judges of this court, on account of your interest, cannot sit. It is not left to your discretion to determine whether or not you shall be fair. It becomes an absolute ban prohibiting you from acting.”

It is certainly a novel and a startling proposition that, under a constitution vesting the judicial powers of the state in her courts, an inferior executive officer has the right and power to disregard the plain provisions of a statute and refuse to perform a purely ministerial act required of him thereunder, thus depriving another of a property right conferred by such statute; and, when the proper judicial tribunal directs that he perform such act or show cause why he shall not do so, he can rightfully say in his return:

“I believe the statute to be constitutional, and I deny to the judiciary of the state the right to determine the correctness of my views, because it chances that the judges in whom is vested the power to direct my acts all have a financial interest in the question to be determined.”

The mere statement of such a proposition makes plain its fundamental weakness. This is not the first time that the right of this court to act in a matter wherein its members were interested has been questioned. Believing that the terms of office of a majority of the judges of this court would expire in January, 1913, an election had been called for the selection of their successors, and nominations of candidates had been filed in the office of the secretary of state. The relator in State ex rel. Null v. Polley, 138 N. W. 300, 42 L. R. A. (N. S.) 788, contended that there was no authority, under the Constitution of this state, for electing successors of said judges prior to November, 1917. If such contention were correct, the then current term of office of said judges would continue until January, 1918. These judges were therefore directly interested in the issue raised. Their right to sit and determine such issue was questioned. If such judges could not act, it left the secretary of state the final “tribunal” to determine when such terms of office expired, because, without these judges, there was no court to determine such issue. The then members of this court unanimously held that, embarrassing though it was to determine an issue wherein a judge was directly interested, the interested judges were in duty bound to act, as the relator was entitled to have his contention passed upon. Let us suppose that the then secretary of state had thought that there was no authority for holding an election for judges that year, and had refused to call an election and certify the nominations filed with him. Let us suppose further that, when a wit was asked of this court requiring him to make return as to why he did not call an election and certify such nominations, this court had said:

“This court refuses to act because a majority of its members are disqualified, owing to interest.”

Would such a holding “ring true,” when its result would have been to perpetuate in office the members of this court until such time as the secretary of state might change his mind or “the people have provided some other tribunal”? We would be content to dispose of the contention that there is no tribunal to which plaintiff can go for relief,

[153 N.W. 364]

by a mere citation of the case of State ex rel. Null v. Polley, supra, if it were not for three things: (1) Because of what defendant's counsel has seen fit to say of this court's decision in the above case; (2) because of the deep and, in every respect, proper interest which the people of this state have in every question presented in the present case; and (3) especially because we recognize the supreme importance of our making the legality, the propriety, and, above all, the duty of our acting herein so clear that the people's confidence in the integrity of this court shall not be shaken.

With the maxim that “no man should be a judge in his own cause,” we take no issue. The law should never permit one to have the power, and therefore should never impose upon one the duty, of determining an issue wherein he is materially interested. Judges are but human and, like their fellow mortals, possessed of human frailties; like others, their judgments are liable to be warped and twisted, either consciously or unconsciously, through the influence of self-interest. Certainly no self-respecting jurist, unless duty demands it, will ever consent to sit in judgment upon a matter in issue, in the determination of which he may have any material interest. In fact, no self-respecting jurist would, of his own choice, sit in judgment upon any issue concerning which there might be any well-grounded suspicion of personal interest on his part. We quote with approval the following from the decision in State v. Bd. of Education, 19 Wash. 8, 52 Pac. 317, 40 L. R. A. 317, 67 Am. St. Rep. 706:

“The learned and observant Lord Bacon well said that the virtue of a judge is seen in making inequality equal, that he may plant his judgment as upon even ground. Caesar demanded that his wife should not only be virtuous, but beyond suspicion; and the state should not be any less exacting with its judicial officers, in whose keeping are placed, not only the financial interests, but the honor, the liberty, and the lives of its citizens, and it should see to it that the scales in which the rights of the citizen are weighed should be nicely balanced, for, as was well said by Judge Bronson in People v. Suffolk Common Pleas, 18 Wend. 550: ‘Next in importance to the duty of rendering a righteous judgment is that of doing it in such a manner as will beget no suspicion of the fairness and integrity of the judge.”

But one of the maxims of jurisprudence is: “For every wrong there is a remedy.” Section 2422, C. C. It would bring small comfort to any person to quote him this maxim, and yet advise him that, for reasons peculiar to his particular claim of wrong, there was no tribunal wherein he could seek the remedy the law has guaranteed him. The right, inherent in every member of organized society, to a court wherein he may seek a remedy for every wrong, be it real or imaginary, is a right second and inferior to none other, and is a right which organized society is bound to guarantee by providing some tribunal into which every one...

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3 practice notes
  • State ex rel. Lyons v. Guy, No. 7935
    • United States
    • United States State Supreme Court of North Dakota
    • January 18, 1961
    ...in official business or reimbursement to them for the expenses of such travel constitute neither salary nor emolument. McCoy v. Handlin, 35 S.D. 487, 153 N.W. 361, L.R.A.1915E, 858, Ann.Cas.1917A, 1046; Manning v. Sims, 308 Ky. 587, 213 S.W.2d 577, 5 A.L.R.2d 1154; 43 Am.Jur., Public Office......
  • State v. Kirby, 3862
    • United States
    • Supreme Court of South Dakota
    • October 8, 1915
    ...reporters to be reasons why Egan would not be disbarred, stated that it was: "That Egan could duck that (the McCoy v. Handlin case, 35 S.D. 487, 153 N.W. 361) and other things and he would be let, would have to be let, in out of the cold; ... that they (the political organization) woul......
  • Johnson v. Jones, No. 5591.
    • United States
    • Supreme Court of South Dakota
    • December 13, 1927
    ...but that plaintiff's remedy was by suit under section 2109, Rev. Code 1919. That question was so thoroughly answered in McCoy v. Handlin, 35 S. D. 487, 153 N. W. 361, L. R. A. 1915E, 858, Ann. Cas. 1917A, 1046, that we merely refer to pages 508-512 of that opinion (153 N. W. 361), and to pa......
3 cases
  • State ex rel. Lyons v. Guy, No. 7935
    • United States
    • United States State Supreme Court of North Dakota
    • January 18, 1961
    ...in official business or reimbursement to them for the expenses of such travel constitute neither salary nor emolument. McCoy v. Handlin, 35 S.D. 487, 153 N.W. 361, L.R.A.1915E, 858, Ann.Cas.1917A, 1046; Manning v. Sims, 308 Ky. 587, 213 S.W.2d 577, 5 A.L.R.2d 1154; 43 Am.Jur., Public Office......
  • State v. Kirby, 3862
    • United States
    • Supreme Court of South Dakota
    • October 8, 1915
    ...the reporters to be reasons why Egan would not be disbarred, stated that it was: "That Egan could duck that (the McCoy v. Handlin case, 35 S.D. 487, 153 N.W. 361) and other things and he would be let, would have to be let, in out of the cold; ... that they (the political organization) would......
  • Johnson v. Jones, No. 5591.
    • United States
    • Supreme Court of South Dakota
    • December 13, 1927
    ...but that plaintiff's remedy was by suit under section 2109, Rev. Code 1919. That question was so thoroughly answered in McCoy v. Handlin, 35 S. D. 487, 153 N. W. 361, L. R. A. 1915E, 858, Ann. Cas. 1917A, 1046, that we merely refer to pages 508-512 of that opinion (153 N. W. 361), and to pa......

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