Williams v. Brannen

• Decision Date: 15 January 1935
• Docket Number: 7989.
• Citation: 178 S.E. 67,116 W.Va. 1
• Parties: WILLIAMS v. BRANNEN, Justice of the Peace.
• Court: West Virginia Supreme Court

178 S.E. 67

116 W.Va. 1

WILLIAMS v. BRANNEN, Justice of the Peace.

No. 7989.

Supreme Court of Appeals of West Virginia.

January 15, 1935

Submitted January 9, 1935.

Syllabus by the Court.

1. "The maxim of the common law 'Nemo debit esse judex in propria causa,' (No man can be judge in his own case) remains inviolate in this state." City of Grafton v Holt, 58 W.Va. 182, 187, 52 S.E. 21, 6 Ann. Cas. 403. The maxim applies to a case in which a judge or a justice of the peace is interested as well as to one in which he is a party.

2. "Every procedure which would offer a possible temptation to the average man as a judge to forget the burden of proof required to convict the defendant, or which might lead him not to hold the balance nice, clear and true between the State and the accused, denies the latter due process of law." Tumey v. State of Ohio, 273 U.S. 510 524, 47 S.Ct. 437, 71 L.Ed. 749, 50 A. L. R. 1243.

3. The system of compensating justices of the peace provided by Code 1931, 50-17-14 and 7-5-15, is unconstitutional.

4. Inasmuch as a judge or a justice of the peace is without authority to try a case in which he is disqualified prohibition is the proper procedure to restrain him.

Original prohibition proceeding by John H. Williams against P. L. Brannen, Justice of the Peace.

Writ granted.

Melville Stewart and S. Grover Smith, Jr., both of Charleston, for petitioner.

Koontz Hurlbutt & Revercomb, Brown, Jackson & Knight, W. Elliott Nefflen and Herman Bennett, all of Charleston, for respondent.

HATCHER Judge.

This is a proceeding in prohibition to restrain the respondent, a justice of the peace, from trying the petition on a charge of violating Code, 22-2-63. If found guilty, the petitioner would be subject to a fine of from ten to five hundred dollars. He takes the position that the justice would be pecuniarily interested in the result.

Under Code, 50-17-14, the fees of a justice in misdemeanor cases not paid "by the parties" shall be "charged and recovered" as provided in Code, 7-5-15, the pertinent part of which follows: "The sheriff shall enter all fines paid to him by justices, under the names of the justices making the payments, respectively, to the credit of an account to be kept by him under the heading "general school fund.' All claims by justices and constables for fees due them in misdemeanor proceedings in the county where the accused is acquitted, or when such fees could not be collected on executions or fee bills, by the exercise of proper diligence, shall be audited and examined by the county court, and if found correct, and if submitted as provided in section fourteen, article seventeen, chapter fifty of this Code, the county court shall cause orders to be issued therefor on the sheriff to be paid out of that part of such fund to the credit of the particular justice before whom such fee bill arose, if sufficient, and charged to such account, but neither the county nor the general school fund shall be liable for the fees or costs of any justice in such cases beyond the balance in the hands of the sheriff from fines paid by that justice."

The effect of these provisions is that a justice has only two sources of compensation in misdemeanor cases-costs paid by the accused when convicted, and the fund accumulated in the hands of the sheriff from fines assessed by the justice. It is obvious that a justice must convict in an appreciable number of such cases where fines and costs are collected in order to secure payment of his fees in those cases wherein he collects no costs.

Petitioner's trial was set for June 16, 1934. Prior to that date, respondent had deposited with the sheriff since the present statute became effective (January 1, 1931) the sum of $3,574.87 from fines collected. The respondent and his constables had been paid from that fund on account of uncollected fee bills in misdemeanor cases tried before him the sum of $3,573.65, leaving a balance in the fund of $1.22. He had on file with the county court at that time unpaid fee bills amounting to $256. Counsel for petitioner resolve the situation as follows: "If the petitioner were acquitted, the amount of unpaid fee bills would be increased; if he were convicted, the fine imposed, if collected, would go to decrease the bills lodged with the court, and incidentally would go into the pocket of the justice, at least to the extent of the unpaid fee bills. * * * It is submitted that it would have been to the respondent's interest to have reached a conclusion against this petitioner, and much against his interest to have acquitted him." We are of opinion that counsel's position is sound, and that respondent had a direct and a material pecuniary interest in convicting the petitioner.

The common law of England (to which we are committed by our Constitution) has a hoary maxim "Nemo debit esse judex in propria causa" which Broom, Legal Maxims (9th Ed.) 81, translates "No man can be judge in his own case." The maxim applies to a case in which the judicial officer is interested, as well as to one in which he is a party. Cooley, Const. Limitations (8th Ed.) pp. 870, 871. A leading case illustrating the inflexibility of the maxim is Dimes v. Gr. Junc. Canal, 111 H. L. C. 759, 793 (decided in 1854), which held that a decree even by the Lord Chancellor of England in a case where he had an insignificant interest "was not according to law" and should be set aside. Chief Justice Lord Campbell said: "No one can suppose that Lord Cottenham (the Lord Chancellor) could be, in the remotest degree, influenced by the interest that he had in this concern (the Canal company); but, it is of the last importance, that the maxim that no man is to be a judge in his own cause, should be held sacred. And that is not to be confined to a cause in which he is a party, but applies to a cause in which he has an interest." The attitude of the common law against intrusting the scales of justice to an interested tribunal is well reflected in the philosophy of Burns:

"If self the wav'ring balance shake,

It's rarely right adjusted."

The Supreme Court of the United States in Tumey v. State of Ohio, 273 U.S. 510, 524, 525, 47 S.Ct. 437, 441, 442, 71 L.Ed. 749, 50 A. L. R. 1243, noted "the greatest sensitiveness" at common law concerning the existence of any pecuniary interest ("however small or infinitesimal") of any judicial officer "in the resolving of the subject-matter which he was to decide." The maxim was specifically recognized by this court in Findley v. Smith, 42 W.Va. 299, 305, 26 S.E. 370 and in City of Grafton v. Holt, 58 W.Va. 182, 187, 52 S.E. 21, 22, 6 Ann. Cas. 403. In the Findl...