State v. Polley

• Decision Date: 25 October 1912
• Citation: 138 N.W. 300,34 S.D. 565
• Parties: STATE ex rel. NULL v. POLLEY, Secretary of State.
• Court: South Dakota Supreme Court

138 N.W. 300

34 S.D. 565

STATE ex rel. NULL v. POLLEY, Secretary of State.

Supreme Court of South Dakota

October 25, 1912

Proceeding by the State, on the relation of T. H. Null, by prohibition to restrain Samuel C. Polley, Secretary of State, from certifying the nomination of candidates for the office of supreme judge. Demurrer to the petition sustained, and motion to quash the proceeding is granted.

The Attorney General and Perry F. Loucks, of Watertown, for defendant.

SMITH J.

Order to show cause why a writ of prohibition should not issue restraining defendant as Secretary of State from certifying to the county auditors of the several counties in the state the nomination of candidates for the office of supreme judge to be voted for at the general election to be held in November, 1912. The Attorney General, Royal C. Johnson consents to, and in effect joins in, the application for the writ in behalf of the state of South Dakota, on the ground that the questions involved are of great public interest and importance. The writ was returnable on the 16th day of September, 1912, at which time defendant Polley, as Secretary of State, appeared by the Attorney General and Perry F. Loucks, his counsel, and filed objections to further proceedings herein, and a motion to dismiss the same, and to vacate and discharge the order to show cause, upon the ground that three of the judges of this court, namely, Judges Corson, Haney, and Whiting are directly interested in the determination thereof, for the reason that they are incumbents of the office of judge of the Supreme Court, that their current terms of office may be extended by the effect of the decision, and that Judge Whiting is the Republican nominee for re-election.

The objection thus interposed that a majority of the judges of this court are disqualified to act in this proceeding presents a question embarrassing in its nature, but which must be decided and determined in this proceeding. It is elementary that no man may sit in judgment upon his own cause, and no citation of authorities is necessary to demonstrate the law. It is, however, almost universally held that the rule is one which must yield to necessity. In 23 Cyc. 581 (f), it is said: "The rule as to disqualification of judges must yield to the demands of necessity, where disqualification, if permitted to prevail, destroys the only tribunal in which relief may be sought and thus effectually bars the door of justice. The disqualified judge is bound to hear and decide the cause." The same rule is stated in 17 Am. & Eng. Enc. of Law (2d Ed.) 744 (6b).

It was suggested in argument by defendant's counsel that the rule as stated in 23 Cyc., supra, is not sustained by the authorities there cited. In this contention defendant's counsel are in error. In the recent case of Galey v Board of Commissioners, 174 Ind. 181, 91 N.E. 593, Ann. Cas. 1912C, 1099, the Supreme Court of Indiana adopted and laid down the rule as stated in Philadelphia v. Fox, 64 Pa. 170, where the court, speaking by Mr. Justice Sharswood, says: "The true rule undoubtedly is that whenever it becomes necessary for a judge to sit, even where he has an interest, where no provision is made for calling another in, and where no one else can take his place, it is his duty to hear and decide, however disagreeable it may be. Matter of Ryers, 72 N.Y. 1, 28 Am. Rep. 88." In State ex rel. Cook et al. v. Houser, Secretary of State, 122 Wis. 534, 100 N.W. 964, the court held as stated in the syllabus: "All common-law rules as to the disqualification of judges give way to the stern rule of necessity, permitting one to act judicially, though he would be disqualified otherwise, if, were he not to act, there would be no tribunal to furnish a remedy for the case in hand." In Bliss v. Caille Bros. Co., 149 Mich. 601, 113 N.W. 317, 12 Ann. Cas. 513, the court says: "It is well established that the rule of disqualification of judges must yield to the demands of necessity, as, for example, in cases where applied, it would destroy the only tribunal in which relief could be had. See cases collected in 23 Cyc. 581, note 76." In Philadelphia v. Fox, supra, Justice Sharswood says: "My brother Hare and myself were both members of the society, and would gladly have excused ourselves from taking any part in the decision, but it was impossible. Without one of us, at least, there could have been no court. We heard and tried the case in favor of the society, and that judgment was affirmed by this court. *** The true rule unquestionably is that wherever it becomes necessary for a judge to sit, even where he has an interest, where no provision is made for calling another in or where no one else can take his place, it is his duty to hear and decide, however disagreeable it may be. The rights of the other parties require it." The same rule obtains in the English courts. Dimes v. Grand Junction R. R., 3 H. of L. Cases, 759; Thelluson v. Rendlesham, 7 H. of L. Cases, 429; 11 Eng. Reprint, 172. Decisions of other states might be cited sustaining the rule as stated above, but we deem it unnecessary. The objection to the qualification of three of the judges of this court to act in this case, if sustained, would disqualify a majority of the court. Section 7, art. 5, of the Constitution of this state declares: "A majority of the judges of the Supreme Court shall be necessary to form a quorum, or to pronounce a decision, but one or more of said judges may adjourn the court from day to day or to a day certain." If three of the judges of this court are disqualified, the remaining two are powerless to pronounce a decision upon the rights of the parties in this case. Neither the Constitution nor any law of this state provides for the calling in of a judge of another court or member of the bar to act in the place of a disqualified member of this court. A clearer case of absolute necessity on the part of the judges to act could hardly be conceived. Under any other rule, the parties to this controversy would be without a forum in which their respective rights could be determined. Every circuit judge of the state is equally interested with the members of this court in the question of pending judicial elections. In view of the conclusion reached, the question under discussion becomes of little importance to the defendant who enters the objection. But, even if our conclusion had been the reverse, the rule of necessity would have been the same, and we should have felt compelled to disregard the objections and render a decision. Had we declined to act in such case, plaintiff would have been without a remedy, and defendant, whether his proposed acts were legal or illegal, would be out of reach of the law, and would be a law unto himself. In such cases the rule of disqualification of judges is deemed of less importance than the denial of the constitutional right to a forum in which rights may be adjudicated. And, however embarrassing the situation may be to us, we are...