The State ex rel. Reeder v. Foard

• Decision Date: 03 July 1916
• Citation: 188 S.W. 71,268 Mo. 300
• Parties: THE STATE ex rel. G. I. REEDER et al. and INTERRIVER DRAINAGE DISTRICT v. J. P. FOARD, Judge of Circuit Court
• Court: Missouri Supreme Court

188 S.W. 71

268 Mo. 300

THE STATE ex rel. G. I. REEDER et al. and INTERRIVER DRAINAGE DISTRICT v. J. P. FOARD, Judge of Circuit Court

Supreme Court of Missouri

July 3, 1916

Writ denied.

Herbert H. Freer, Oliver & Oliver and L. R. Thomason for relators.

(1) Any interest, "though it be ever so small and trifling," disqualifies the judge. Any order or judgment on the hearing of the exceptions to the commissioners' report that might be entered by the respondent would directly affect his pecuniary interest. Such being true, it was the duty of the respondent to have voluntarily called in some other judge who was not interested. Sec. 1928, R. S. 1909; Priddy v. MacKenzie, 205 Mo. 193; State ex rel v. Smith, 176 Mo. 97; Dimes v. Canal Co., 16 Eng. L. & Eq. 63, 3 H. L. Co. 759; Earl of Derby Case (1686) 12 Coke, 114; Coke on Littleton, sec. 212; Hesketh v Braddock, 3 Burr, 1847; Findley v. Smith, 42 W.Va. 299; State v. Call, 41 Fla. 442; Ex parte Cromwell, 144 Ala. 497; Meyer v. San Diego, 121 Cal 102; Heilbron v. Campbell, 23 P. 122; Nalle v. Austin, 85 Tex. 520; State v. Cisco, 33 S.W. 244; Wagon Works v. Melton, 125 S.W. 291; Woodmen of the World v. Hale, 120 S.W. 539; Morrisey v. Gray, 117 P. 442; Railroad v. Call, 145 S.W. 1098; 23 Cyc. 575; 12 Am. & Eng. Ency. Law, p. 40; Pierce v. Atwood, 13 Mass. 339; Stockwell v. Town Board, 22 Mich. 345; Mining Co. v. Kieser, 58 Cal. 315; Priddy v. MacKenzie, 205 Mo. 195. All exceptions filed by said landowners to the report of the commissioners in assessing benefits are tried by the court sitting as a jury. The decreasing of the assessed benefits or the refusal to lower the assessed benefits upon other landowners will increase or decrease the amount of taxes levied and assessed upon the respondent's lands in exact proportion as the changes are made, and, therefore, respondent is pecuniarily and directly interested. Any, even the slightest, pecuniary interest in the result renders the judge incompetent to sit. Steamboat Co. v. Livingston, 12 Cowan, 724; Hawes v. Humphrey, 20 Am. Dec. 381; Peck v. Freeholders, 20 N. J. L. 457. (2) The filing of the application for the change of venue duly verified and in proper form, made it mandatory on the respondent to grant the application, and call in another judge to hear the further proceedings. Douglas v. White, 134 Mo. 233; Gee v. St. Louis Ry. Co., 140 Mo. 318; State ex rel. v. Clenton, 128 Mo.App. 304; Railway v. Fowler, 113 Mo. 469; Dowling v. Allen & Co., 88 Mo. 300. (3) The granting of the application carries with it the entire case. The entire number of exceptions must be heard by one judge -- to permit a number of judges to hear the various exceptions and modify the commissioners' report as to them might seem proper would result in having the report measured by as many different rules as there were judges, and the ultimate result would be a modified report wholly out of proportion and unfair to the landowners. The whole intent of the drainage statute is to keep the hearing of the exceptions in one forum and before a judge who is not disqualified. Art. 1, chap. 41, R. S. 1909; Drainage District v. Tomlinson, 245 Mo. 11; State ex rel. v. Sheppard, 245 Mo. 64; Drainage Dist. v. Richardson, 237 Mo. 64; State ex rel. v. Riley, 203 Mo. 191; State ex rel. v. Haley, 99 Mo. 152; Fears v. Riley, 148 Mo. 61; Laws 1913, p. 241.

D. W. Hill, L. M. Henson, Abington & Phillips, Whaley & Ing, Leslie C. Green, Sheppard & Sheppard, Mozley & Woody, John A. Gloriod and H. R. Polak for respondent.

(1) The organization of a drainage district, under the drainage laws of this State, is one proceeding, and one case, regardless of the number of exceptions which may, during its progress, incidently be filed to the report of the commissioners. Drainage District v. Tomlinson, 245 Mo. 11; State ex. rel. v. Sheppard, 245 Mo. 64; Drainage Dist. v. Richardson, 237 Mo. 64; State ex rel. v. Riley, 203 Mo. 191. (2) The exceptions filed to the report of the commissioners are a mere continuation of the case, and are simply auxiliary or ancillary thereto, and exceptors to said report cannot take a change of venue. Sutton v. Cole, 155 Mo. 206. (3) In a drainage proceeding no change of venue can be had after the decree organizing the district is rendered. Drainage Dist. v. Richardson, 237 Mo. 49. (4) The remote contingent interest of respondent will not disqualify him to hear the exceptions in this case. 23 Cyc. 579. (5) Even if this court should hold that relators' affidavit for a change of venue was timely filed, the trial court could only award a change of venue to the exceptors whom Reeder had authority to represent, and after such exceptions had been heard, Hon. J. P. Foard, regular judge, would have full jurisdiction. Laws 1913, p. 252, sec. 34.

GRAVES, J. Walker and Blair, JJ., concur; Faris and Revelle, JJ., concur as to paragraphs one and two and in result. Woodson, C. J., absent; Bond, J., not sitting.

OPINION

In Banc.

Prohibition.

GRAVES J.

Original action in prohibition. The respondent filed return to our preliminary rule to show cause why our writ of prohibition should not go, and relators have filed a motion for judgment on the pleadings. In such a case the facts must be gathered from the return in so far as the facts therein stated contravene the statements of relators' petition. In other words, the motion for judgment filed by relator is taken as admitting all well pleaded facts in the return. Gathering the facts of the case, with this rule in view, they are about as follows:

Proceedings were regularly instituted in the Butler Circuit Court for the incorporation of relator, "Inter-River Drainage District." Of this court the respondent, Hon. J. P. Foard, was then and is now, the judge. The proceeding went along regularly until the relator, "Inter-River Drainage District," was duly organized by final decree of said court. Up to this point in the proceeding the Hon. J. P. Foard owned no lands in the drainage district. After the decree of organization and before the report of the commissioners, the respondent acquired by purchase a small tract of land (sixty acres as we recall) in the district. The commissioners to assess the damages and benefits were appointed by respondent, and their report has been filed. Afterward a great number of exceptions to this report were filed, and among them the exceptions of relators G. I. and G. L. Reeder. These exceptions were due for trial at the April term, 1915, of said court, but owing to sickness in the family of the judge of the court, passed over until the July term following. At the July term relator G. I. Reeder filed his amended affidavit for a change of venue in which he charged:

"That at the time of the organization of said district the Honorable J. P. Foard, Judge of the Circuit Court of Butler County, Missouri, did not own any of the lands within said district, but that since the date of the decree and judgment incorporating the said Inter-River Drainage District, the said J. P. Foard, judge of this court, has acquired some of the land within said district and is now the owner thereof.

"Your affiant further represents and states to the court that the report of the commissioners assessing benefits and damages to the land and property within said district has been filed in this court and that there is now pending and undetermined a large number of exceptions and objections to the report of said commissioners, and that among the said exceptions and objections there is undetermined and pending an exception and objection filed by affiant to said commissioners' report.

"Your affiant further represents and states to the court that he has good cause to believe and does believe and charges that he cannot have a fair and impartial trial of his exceptions and objections to said commissioners' report assessing benefits and damages to his said lands and property within said district before the said Honorable J. P. Foard, Judge of the Circuit Court of Butler County, Missouri, and that none of the other defendants and exceptors to said report can have a fair and impartial trial before the said judge for the following reasons:

"1. That the said J. P. Foard is interested in the formation of said Inter-River Drainage District and is interested in the result of any judgment or order that might be rendered on the hearing of the exceptions and objections so filed by this affiant and all other persons filing objections and exceptions to said report.

"2. That the said judge is biased and prejudiced in favor of the opposite party, the drainage district, the plaintiff, and against this defendant and other defendants.

"3. That the opposite party, the plaintiff drainage district, through its officers and employees, has an undue influence over the mind of the said judge."

The return of respondent touches the matter which we have italicized above, i. e. whether or not relator Reeder was authorized to speak for the other exceptors. The return reads:

"That at the time G. I. Reeder filed the application for change of venue it was denied orally and in writing in said circuit court that G. I. Reeder had any authority to represent any exceptor other than himself and wife in making affidavit for change of venue, and that counter affidavits are on file in said circuit court to the effect that the following part of G. I. Reeder's affidavit is false and untrue, . . . and that none of the other defendants or exceptors to said report can have a fair and impartial trial before the said judge."

The question of fact whether or not G. I. Reeder had authority to represent other exceptors in making such affidavit is still pending and undetermined in said circuit court, and all exceptions were ordered docketed at the foot of the October,...