State v. Aldridge

• Decision Date: 26 March 1925
• Docket Number: 3 Div. 697
• Citation: 103 So. 835,212 Ala. 660
• Parties: STATE ex rel. MILLER v. ALDRIDGE et al., State Board of Public Accountancy.
• Court: Alabama Supreme Court

103 So. 835

212 Ala. 660

STATE ex rel. MILLER v. ALDRIDGE et al., State Board of Public Accountancy.

3 Div. 697

Supreme Court of Alabama

March 26, 1925

Rehearing Denied April 30, 1925

Appeal from Circuit Court, Montgomery County; Walter B. Jones Judge.

Petition of the State of Alabama, on the relation of H.S. Miller, for writ of mandamus to Mayer W. Aldridge and others, composing the Alabama State Board of Public Accountancy. From a judgment denying the writ, relator appeals. Reversed rendered, and remanded.

Miller & Graham and Weatherly, Birch, McEwen & Hickman, all of Birmingham, for appellant.

James J. Mayfield, of Montgomery, for appellees.

GARDNER J.

H.S Miller, appellant, is a certified public accountant; certificate having been issued to him by the Alabama state board of accountancy, as provided by General Acts 1919, p. 124, now to be found in Code of 1923, §§ 16-21.

Petition was filed before said board seeking to have his said certificate revoked. Section 21, supra. His bill seeking injunctive relief restraining the members of the board from hearing and passing upon said petition was held to be without equity. Miller v. Ala. State Board of Public Accountancy, 210 Ala. 619, 98 So. 893. The opinion discloses that the court entertained the view the decision in Lehmann v. State Board of Public Accountancy, 208 Ala. 185, 94 So. 94, subsequently affirmed by the Supreme Court of the United States (Lehmann v. Board of Accountancy, 263 U.S. 394, 44 S.Ct. 128, 68 L.Ed. 354) was controlling and decisive.

At a meeting of said board on April 21, 1924, held at the state capitol, Miller appeared in person and by counsel presenting a petition and motion to the members of the board, praying that each member thereof recuse himself and refuse to participate in the hearing of the petition then pending against him, by reason of disqualification from interest, bias, and prejudice. The grounds of disqualification were set out in detail. One of the members, who was alleged to have been the author of the charges against said Miller, did recuse himself, but the two remaining members, Aldridge and Rosson, declined to do so upon the ground that the reasons stated in the petition or motion were insufficient. Miller then filed his petition in the circuit court of Montgomery county, seeking a writ of mandamus to compel the said two remaining members of the board to recuse themselves. The respondents demurred to the petition, and, their demurrer being sustained, relator, declined to plead further, and judgment was rendered dismissing the petition. From this judgment, Miller has prosecuted this appeal, and the ruling of the court on demurrer presents the pivotal question for determination here. For the purpose of this review, therefore, the averments of the petition are to be considered as admitted.

For the sake of brevity, we summarize the grounds of disqualification as follows: That appellees as individuals and also as members of the social organization known as the Alabama Society of Certified Public Accountants, of which they are members, contributed money to the prosecution of the charges against appellant, then pending before the board; that they had been active, personally and professionally, against appellant, and were biased and prejudiced against him; that they had theretofore taken an active part in procuring his expulsion from said Alabama Society of Public Accountants, and which expulsion appellees, sitting as members of the board, without notice to appellant, had determined was sufficient cause for revocation of the certificate; that "one or more" members of the board had stated that in the hearing of this proceeding against appellant the board would revoke his certificate, irrespective of any proof or defense, and that so far as the board was concerned "such certificate now stood as revoked."

That the rule of disqualification applicable to judges extends also to every tribunal exercising judicial or quasi-judicial functions is established by the decided weight of authority (23 Cyc. 590; Stahl v. Board, 187 Iowa, 1342, 175 N.W. 772, 11 A.L.R. 185), and it is not questioned that the rule so applies to the board of which appellees are members sitting for the purpose of hearing the petition for revocation of appellant's certificate. Nor is it questioned that the revocation of such certificate would deprive appellant of a valuable property right.

"According to the stern morality of the common law, a judge is required to be legally indifferent between the parties. Any, the slightest, pecuniary interest in the result disqualifies." Gill v. State, 61 Ala. 169.

"Any interest, the probable and natural tendency of which is to create a bias in the mind of the judge for or against a party to the suit, is sufficient to disqualify. The judge is human, and human nature at best is weak, and as far as it is possible a perfect equipoise should always be preserved in the administration of justice by the courts. Pecuniary interest in the result of the suit is not the only disqualifying interest." Ex parte Cornwell, 144 Ala. 497, 39 So. 354.

In Medlin v. Taylor, 101 Ala. 239, 13 So. 310, the probate judge, whose qualifications to sit in the cause were under review, was held not to have any disqualifying interest in the result of the case within the provisions of the Constitution or statute. He had, however, a personal interest in the similarity of the contest then being heard and that of his own pending in the circuit court, and the opinion concludes:

"It is the opinion of the court, however, that under the doctrines of the common law, aside from our constitutional and statutory provisions, he had such a personal interest in the questions involved in the contestation of Medlin, in the nature of things, such a bias in favor of one of the parties to the case, as disqualified him to hear and determine the same, and justified his action in declining so to do."

See, also, Bryce v. Burke, 172 Ala. 219, 55 So. 635.

In Moses v. Julian, 45 N.H. 54, 84 Am.Dec. 118, is the following pertinent language:

" 'It is the right of every citizen to be tried by judges as impartial as the lot of humanity will admit.' This is but the expression of a well-known rule of universal justice everywhere recognized. *** It is one of the great principles of the common law, for which the people of England had struggled for ages, and which they ultimately succeeded in establishing against the strenuous efforts of a tyrannical government. We can have no higher authority than this for denouncing as illegal everything which interferes with the entire impartiality of every legal tribunal."

And, in Castleberry's Case, 23 Ala. 85, this court said:

"The law wisely withholds from every judge all temptations to depart from the strict line of duty, from considerations of interest, by rendering him incompetent to sit in any cause in which he is interested. The maxim is 'Nemo judex in causa propria,' and it is alike founded in common sense, and a just desire to preserve from impurity the fountains of justice."

The authorities abound with expressions to like effect as found in the foregoing quotations, and stress the importance of an adherence to the ancient maxim that "no man is to be judge of his own cause." Cooley's Const. Limit. p. 593.

It is well recognized by all thoughtful minds that nothing shakes the stability of government so much as the people's lack of confidence in the fairness, impartiality, or integrity of the courts of the country, constituting, as they do, one of the very foundation stones upon which our government rests.

The averments of the petition disclose that these appellees have been active in the prosecution of these charges which they are called upon to hear and determine, and have contributed funds to further the prosecution. It may be conceded, as suggested by counsel for appellees, that the petition should be construed as showing their activity and contribution of funds to have occurred prior to their appointment as members of the board, but this would not materially affect the situation. In addition to these averments, it is charged that they are inimical to appellant, both personally and professionally, have prejudged his case, and stated that, so far as they were concerned, his certificate "now stood as revoked." Under these averments appellees are charged with a direct interest in the proceedings against him, and are both prosecutors and judges in the same cause. These averments, for the present purposes, being considered as admitted, we think very clearly place appellees within the influence of the rule of disqualification.

But a question of more difficulty is presented. The act establishing this board and granting to it the power to cancel certificates theretofore issued contains no provision for supplying the place of a member who recuses himself from sitting in such a proceeding on account of being disqualified. If, therefore, appellees are required to so recuse themselves, there will be no tribunal left to...