Stahl v. Bd. of Sup'rs of Ringgold Cnty.

• Decision Date: 12 January 1920
• Docket Number: No. 32486.,32486.
• Citation: 175 N.W. 772,187 Iowa 1342
• Parties: STAHL ET AL. v. BOARD OF SUP'RS OF RINGGOLD COUNTY ET AL.
• Court: Iowa Supreme Court

187 Iowa 1342

175 N.W. 772

STAHL ET AL.

v.BOARD OF SUP'RS OF RINGGOLD COUNTY ET AL.

No. 32486.

Supreme Court of Iowa.

Jan. 12, 1920.

Appeal from District Court, Ringgold County; Thomas I. Maxwell, Judge.

Establishment by Board of Supervisors of Ringgold County of Grand River Drainage District No. 1 was confirmed on appeal to district court, and Grand Stahl and others appeal. Reversed.Carr, Carr & Evans, of Des Moines, and Spence, Beard & Hayes, of Mt. Ayr, for appellants.

Fuller & Fuller and Chas. J. Lewis, all of Mt. Ayr, for appellees.

SALINGER, J.

I. The board of supervisors of Ringgold county consists of three members. The defendant Vorhies is one member. On the vote upon whether said drainage district should be established one member of the board other than Vorhies voted “Aye,” another member “No,” and the defendant Vorhies voted “Aye.” It is manifest then that the vote of Vorhies was decisive. The principal complaint of the appellant is that Vorhies was disqualified by interest, and that the court held him qualified so to act.

[1] For the moment omitting reference to exceptions to the rule, had Mr. Vorhies acted as the judge of a court in doing any act which would substantially promote his pecuniary interest, he would have been disqualified. It would be sheer affectation to make an extensive citation of authorities for the proposition that one may not be “judge in his own cause.” But see In re Ryers, 72 N. Y. 1, 28 Am. Rep. 88. In Case v. Hoffman, 100 Wis. 314, 72 N. W. 390, 74 N. W. 220, 75 N. W. 945, 44 L. R. A. 728, a Supreme Court decision was held void because one judge, who had tried the cause below before he became a member of the Supreme Court, cast the deciding vote. Indeed, courts have gone so far as to hold that an act of assembly which authorizes one to judge his own cause would be void because such an enactment is a denial of due process of law. Commissioners v. Smith, 233 Ill. 417, 84 N. E. 376, 16 L. R. A. (N. S.) 292; Day v. Savadge, Hobart, 212, 218; Cooley, Constitutional Limitations, *175; Coke on Littleton, § 212.

[2] I (a). The rule is not challenged, but avoidances are attempted. One of these avoidances is that what Vorhies did was the performance of an administrative rather than a judicial duty. Many distinctions, resting on such difference, may be found in the books.

A Wisconsin statute empowers political committees to determine what candidate shall have place on the official ballot. It was held in State v. Houser, 122 Wis. 534, 100 N. W. 971, that the members will not be disqualified because they were active partisans and prejudiced. And there is a line of cases which allows ministerial officers to act because the Legislature contemplated that those empowered to act would be prejudiced. State v. Houser, supra, is one of those, and a leading case. To like effect is People v. Magee, 55 App. Div. 195, 66 N. Y. Supp. 849;People v. Cooper, 139 Ill. 461, 29 N. E. 882, and Starkweather v. Council, 90 Wis. 612, 64 N. W. 304, other Wisconsin cases, and perhaps others. In the Starkweather Case a prejudiced council was permitted to remove the mayor. But as to all this there is a conflict even in Wisconsin. For it was held in Getchel v. Bradish, 95 Wis. 205, 70 N. W. 172, that a member of a town board who had hired a minor to purchase whisky of a saloon keeper, in violation of law, was incompetent to sit as a member of the town board while trying whether the saloon keeper's license should be revoked for that illegal act. But it must be conceded that there are cases which hold that there may be ministerial acts performed which involve some aspect of judicial or quasi judicial inquiry, and where those who make the inquiry are not in what may fairly be called a judicial frame of mind. On a more careful analysis it will, however, be found that, after all, these cases turn on the fact that the action of such bodies in so judging deals with office; that the right to hold office is not property; that the officers acting have even a less substantial financial interest involved than has the candidate; that in truth no substantial benefit to them depends on how they decide, and, finally, that since there is no vested right, say, to having one's name placed on a primary ballot as a candidate, and since the Legislature was not bound to provide a primary at all, it may, in granting mere privileges such as this, attach any condition to the use of the privileges even if it be one condition that certain contests over the right to use the privilege may be decided by ministerial officers who are partisan and prejudiced.

[3] I (b). Another avoidance is the urging of decisions which sustain quasi judicial action by commissioners or members of boards on the ground that no statute demands that these members or commissioners shall be disinterested, and other cases which disqualify officers who are interested, but do so on the ground that the statute demands they shall be disinterested. It is true we have no statute which in terms demands that a member of the board of supervisors whose vote really establishes a drainage system shall be disinterested. That is, there is no statute whose letter makes that requirement. But the spirit of all the statutes we have on the subject does make it. There is, first, the general statute policy declared by statute enactments which condemn contracts made by members of town councils or by officers of state institutions if these officers have an interest in such contracts. See Code 1897, §§ 189, 190, 5713 and section 668, subd. 14. Every person and every body other than the board of supervisors, that act on the establishment of a drainage system, are by statute required to be disinterested. This is true of the body of three appraisers whom the auditor appoints. It is true of the engineer whom the board of supervisors selects and whom the auditor must appoint as one of the appraisers. Neither the engineer nor the appraisers act finally; their work is, in the end, to be either validated or nullified by the action of the board of supervisors. Can it be possible that a part is greater than the whole; that the mere intermediaries shall be disinterested and the final arbiter need not be. We have said there is no statute expressly so requiring. But the fact that it is required of the intermediaries does not exclude it being demanded of the principal and final actor. All such statute law as this is merely declaratory. 29 Cyc. 1435. The failure to require it of the members of the board looks very much like a case of legislative oversight in not going farther with purely declaratory statutes than the statutes enacted do go. But that is not controlling. It was held in Markley v. Rudy, 115 Ind. 533, 18 N. E. 50, that under general principles of jurisprudence, as well as under statute, a county surveyor is incompetent to assess for the repair of a ditch if part of the land benefited and assessed belongs to himself and a part to his father. Be that all as it may, it is thoroughly well settled that the utmost difference there is between the cases where the statute does demand that the members shall be disinterested and those in which there is no such express demand is that, instead of the action of the board being void, it is but voidable. Carr v. Duhme, 167 Ind. 76, 78 N. E. 322, 10 Ann. Cas. 967, wherein are cited cases from Massachusetts, Michigan, Texas, and California. It is said in the case that, though the statute does not demand that a member be disinterested “a proper sense of propriety should in all cases prevent a member from acting in any proceeding to which he is a party, but if, disregarding such disqualification in a matter over which the board has jurisdiction of the subject and the parties, he does participate in rendering a judgment from which an appeal is allowed, his act and the action of the board will not be void, but only voidable”--citing Board v. Justice, 133 Ind. 89, 30 N. E. 1085, 36 Am. St. Rep. 528;Rogers v. Felker, 77 Ga. 46;Wilson v. Smith (Ky.) 38 S. W. 870;State v. Ross, 118 Mo. 23, 23 S. W. 196;Fowler v. Brooks, 64 N. H. 423, 13 Atl. 417, 10 Am. St. Rep. 425.

[4] I (c). Citations for appellees indicate reliance upon the fact that an appeal lies to the district court. But such appeal does not afford a free review of the merits. Every reasonable presumption is indulged to support the action of the board (see Temple v. County, 134 Iowa, 706, 112 N. W. 174;Denny v. County, 143 Iowa, 466, 121 N. W. 1066;Prichard v. County, 150 Iowa, 584, 129 N. W. 970;In re Ryers, 472 N. Y. 1, 28 Am. Rep. 88; Railroad v. County, 144 Iowa, 171, 176, 122 N. W. 820;Mittman v. Farmer, 162 Iowa, 364, 382, 142 N. W. 991, Ann. Cas. 1915C, 1)--and it could well happen that the appellate court would be constrained to hold that it could not interfere on the merits (Denny v. County, 143 Iowa, 466, 121 N. W. 1066)--in a case in which it happened to be the fact that there would have been no system established, and hence no occasion for appellate review of the establishment had the members of the board not been personally interested. True it is that, where the appeal may be tried to a jury, unembarrassed by the decision appealed from, it has led the courts to hold that the members of the board were not disqualified. See Stewart v. Mayor, 7 Md. 500;Scott v. People, 120 Ill. 129, 11 N. E. 715;People v. Cooper, 139 Ill. 461, 29 N. E. 872.

I (d). But these were distinguished in Vandalia v. Hutchins, 234 Ill. 31, 84 N. E. 408; and the later Illinois case of Commissioners v. Smith, 233 Ill. 425, 84 N. E. 378, 16 L. R. A. (N. S.) 292, disposed of the right to appeal as an avoidance by holding that, though there be a right to trial by jury, “still it is entirely clear that, in providing for a commission to determine the amount of money that shall be collected from each property owner, the law of the land forbids the enactment of a statute that permits the selection of a commissioner...