General Principle. from civil liability exists for the benefit of the community, which VIII. DISQUALIFICATION OF JUDGES-1. General Principle.-That no man can be a judge in his own cause is a maxim universally accepted. "The learned wisdom of enlightened nations, and the unlettered ideas of ruder society are in full accordance upon this point." "Next in importance to the duty of rendering a righteous judgment is that of doing it in such a manner as will beget υ. Lenox v. Grant, 8 Mo. 254; Fray v. Blackburn, 3 Best & Sm., Q. B. (113 Eng. Com. L. Rep.) 576; Pratt Gardner, 2 Cush. (Mass.) 63, 70. see Chitty on Pleading 69. And see And also the tenor of opinion in Yates v. Lansing, 5 Johns. (N. Y.) 291. Contra dicta in Gault v. Wallis, 53 Ga. 675; Gregory v. Brown, 4 Bibb (Ky.) 28; State v. Prescott, 31 Ark. 39; Welsh v. Lloyd, 5 Ark. 370; 1 Bish. Cr. Law, § 299 and note. On certiorari, wherein a justice of the peace was excepted to because he had formed opinion, McDowell v. Van Deusen, 12 Johns. (N. Y.) 356, the court say: "It is a general principle that a judge cannot be excepted to or challenged for corruption; but must be punished by indictment or impeachment." Citing 1 Inst. 294, and 2 Inst. 422. Judges of courts of record or general jurisdiction are not liable to civil actions for their judicial acts, even when such acts are in excess of their jurisdiction and are alleged to have been done maliciously or corruptly. A distinction is to be drawn between acts done by them in excess of their jurisdiction and acts done by them in the clear absence of all jurisdiction over the subject matter. Bradley v. Fisher, 13 Wall. (U. S.) 335; explaining Randall Brigham, 7 Wall. (U. S.) 523. v. And see on the general subject East River Gas Light Co. v. Donnelly, 25 Hun (N. Y.) 614; Pickett v. Wallace, 57 Cal. 555; Turpen v. Booth, 56 Cal. 65; Londegan v. Hammer, 30 Iowa 508; Pratt v. Gardner, 2 Cush. (Mass.) 63, 68. 1. Old Cases.-Judge cannot be questioned for corrupt act as judge either at the suit of the parties or of the king. cited; Barnardiston v. Saome, 6 How, Floyd v. Barker, 12 Coke 23, and cases ferior courts, the plaintiff in a writ of State Tr. 1096. But as to judges of infalse judgment shall have a direct averment against that which they have done Henry VI, 34. as judges quia recordum non habent. 21 by Parliament adjudged just and legal; tion. Jones v. Brown, 54 Iowa 74. 3 で。 3. Slanderous Words.-Thomas county court judges would be liable for Hopk. Ch. (N. Y.) 1. no suspicion of the fairness or integrity of the judge." JUDGE COOLEY says that "to empower one party to a controversy to decide it for himself is not within the legislative authority; because it is not the establishment of any rule of action or decision."2 The decisions stated below show that the principle of disqualification is to have no technical or strict construction, but is to be broadly applied to all classes of cases where one is appointed to decide the rights of his fellow-citizens.3 Doctrine of Necessity.-Where the constitution has conferred exclusive jurisdiction, and no provision is made for hearing elsewhere if the judge is disqualified, there, the constitution, being the paramount law, the judge, it has been said, must from the necessity of the case hear and decide even though related to a party, or interested, to prevent the failure of justice otherwise existing. But it has been suggested that a legislative tribunal cannot come within the exception; as the legislature cannot make a judge an arbiter in his own cause. But the objection does not apply where the interest is minute and remote, as in the authorizing appointment of draining commissioner.6 2. Disqualification at Common Law.-For general purposes, it is sufficiently accurate to say that the interest disqualifying at common law was that which would have disqualified as a witness or juror. It was not a legal objection that a judge had been of 2. Cooley Const. Lim. 412. See also Ames v. Port Huron Co., 11 Mich. 139; State v. Crane, 36 N. J. L. 394; Schroder v. Ehlers, 2 Vroom (N. J.) 44. 3. Hall. Thayer, 105 Mass. 219, 223. 4. Stuart v. Farmers' etc. Mechanics' Bank, 19 Johns. (N. Y.) 496; Matter of Leefe, 2 Barb. Ch. (N. Y.) 39; Paddock v. Wells, 2 Barb. Ch. (N. Y.) 331; Heydenfeldt v. Towns, 7 Ala. 423; People v. Edmonds, 15 Barb. (N. Y.) 529, 531; Baldwin v. McArthur, 17 Barb. (N. Y.) 414, 423; Converse v. McArthur, 17 Barb. (N. Y.) 401, 413; Ten Eick v. Simpson, 11 Paige (N. Y.) 177-179; Movers v. White, 6 Johns. Ch. (N. Y.) 360. Opinion of LORD LANGDELL, M. R., in Grand Junction Canal Co. v. Dimes, 12 Beav. 77; Great Charte v. Kennington, 2 Stra. 1173; Thellusson v. Rendlesham, 7 H. of L. Cas. 429; Peck v. Freeholders, 1 Spenc. (N. J.) 457. See State v. Crane, 36 N. J. L. 394. Contra, Washington Ins. Co. v. Price, Hopk. Ch. (N. Y.) 1; State v. Castleberry, 23 Ala. 85. (3 Ap In the Dimes case, above mentioned H. of L. Cas. 759) it was held that the lord chancellor, though disqualified by interest, could enroll decree of the vice chancellor so there could be appeal, notwithstanding the act involved the exercise of discretion, for it was a case of necessity. proved in Ranger v. Gt. West. R. Co., 5 H. of L. Cas. 88. But compare Anony mous, Salk. 396. See apparently the same case at p. 201: LORD HOLT's opinion would not admit of the judge's acting even in such a case. Mayor . Markwick, 11 Mod. 164. See Com. v. Ryan, 5 Mass. 90, 92, affirming a judge's right to sit in such a juncture. Approved in Pearce v. Atwood, 13 Mass. 324, 340. 5. Cooley's Const. Lim., § 175; Co. Litt., § 212; Day v. Savadge, Hobart 212, 218. See Matter of Ryers, 72 N. Y. 1, 13. 6. Matter of Ryers, 72 N. Y. 1, 13; Com. v. Ryan, 5 Mass. 90; Pearce v. Atwood, 13 Mass. 324, 340. See also State v. Crane, 36 N. J. L. 394. 7. Dimes v. Grand Junction Canal Co., 16 Eng. L. & Eq. 63. 2 counsel in the case, or was related to a party; for favor would not be presumed in a judge. At the older common law, personal interest formed the only ground for challenging a judge.3' 3. Disqualification by Statute.-Disqualification has, however, commonly been imposed by statute, where the judge is related by blood or marriage, or has been connected with the case as counsel. This disqualification, under most statutes, is an absolute one rendering void judgments and decrees rendered by the judge affected; excepting in matters of form, etc. Privilege to suitors has been accorded in most States of obtaining change of venue, in case of prejudice in the judge. The disqualifying statutes are not to be construed in a strict technical sense, but broadly with liberality. The term "party" used to indicate persons to whom the judge is related and who are connected with the litigation, is not confined to parties of record; thus, if the judge is related within the prohibited degree to the distributees of a decedent's estate, he is not to sit. But as the interest must be immediate, relationship to stockholders of a litigating corporation does not ordinarily disqualify.6 Relationship to a party interested as trustee does not disqualify. 1. Owings v. Gibson, 2 A. K. Marsh. (Ky.) 51; Denn v. Tatem, 1 N. J. L. 164, holding that such a one could preside at striking of jury (altered by New Jersey Pat. Laws 254. anno 1797); Townsend v. Hughes, 2 Mod. (Eng.) 151. And see Co. Litt. 294a; 3 Black. Com. *361. Perhaps Millar v. Taylor, 4 Burr. 2303, 2411, is an illustration. Surprise. Excuse will not be thought sufficient, an early Kentucky case held, in that a party failed to prepare for trial because he supposed the judge, having been of counsel, would not sit. Owings v. Gibson, 2 A. K. Marsh. (Ky.) 517. 2. Russell v. Belcher, 76 Me. 501; Matter of Dodge & Stevenson Mfg. Co., 77 N. Y. 101, 112; Brooke and the Earl of Rivers, Hardress Rep. (Eng.) 503; Winchester v. Hinsdale, 12 Conn. 94. 3. Bouv. Law Dict., Incompetency; Russell v. Belcher, 76 Me. 501. Though in the times of Bracton and Fleta a judge might be refused for good cause; but the law altered. 3 Black. Com. *361. 4. See note 3, p. 48. A narrow construction of the term "party," confining it to the very person named on the docket as such, would often defeat the end in view. Hodde v. Susan, 58 Tex. 398; Gains v. Barr, 60 Tex. 678. Relationship to person killed in a murder case, while not covered by statutory provision as to relationship to "party," does fall within another provision that "legal cause" shall disqualify. Gill v. State, 61 Ala. 169. Compare Reed v. State, 11 Tex. App. 587. "Any Reason."-Where a statute provides for a special judge in case the regular judge cannot properly preside, "for any reason," the quoted words are not to be confined to instances of interest, kinship, or relation as counsel; but apply to cases of prejudice or any other proper reason. Barnes v. McMullin, 78 Mo. 266. See also Turner v. Com., 2 Met. (Ky.) 628; In re Peyton, 12 Kan. 407. 5. See this section, sub. 7. See also Gains v. Barr, 60 Tex. 676; Brantley v. Greer, 71 Ga. 11. 6. See VIII, 4, (c). 7. Fowler v. Byers, 16 Ark. 196; cited by the court in Trustees of Internal etc. Fund 2'. Bailey, 10 Fla. 233; and see Underhill v. Dennis, 9 Paige (N. Y.) 202. See also DISQUALIFICATION AS FORMER COUNSEL, VII, 10, where cases are given explaining the meaning of "the cause" in statutes prohibiting the sitting therein of judges who have been of counsel. See also DISQUALIFICATION FOR PREJUDICE, VIII, S. Formal acts, however, have been upheld, though by a disqualified judge. See V. Such exception of ability arising out of interest or relationship is implied in the most comprehensive grant of jurisdiction by statute, or by constitution.2 Constitutional requirements as to qualification couched in terms applicable more properly to the judges of courts created by the constitution, do not always extend to the judicial officers presiding over courts created by the general assembly; the more especially since the power of the State legislatures does not rest upon the constitution, which instrument is as to them a limitation, and not a grant, of power.3 But the division of power among the three departments, executive, legislative and judicial, would seem to imply a prohibition of the legislature's enabling a judge to sit in a matter in which he is interested; which would not be the creation or maintaining of a court, or authorizing action by an official of the judicial department in a matter judicial. But the legislature is not prohibited from giving jurisdiction to an inhabitant of a municipality party to an action, where, in their judgment, his interest as inhabitant is too minute or remote to affect him as judge.1 But where the judge's interest is peculiar and direct, the legislature cannot remove the disqualification of interest.5 "The general effect of the statutory prohibitions in the several States is undoubtedly to change the rule of the common law so far as to render those acts of a judge, involving the exercise of judicial discretion, in a case wherein he is disqualified from acting, not voidable merely, but void. Injunction Protecting Judge's Property-A judge is disqualified to grant injunction which will protect his own as well as plaintiff's property. North Bloomfield etc. Min. Co. v. Keyser, 58 Cal. 315. See also. generally, Stockwell v. White Lake etc. Board, 22 Mich. 341; Rivenburgh v. Huness, 4 Lans. (N. Y.) 208; Converse v. McArthur, 17 Barb. (N. Y.) 410; Matter of Dodge etc. Co., 77 N. Y. 101. 1.5 Coke Rep. 118b; Wingall's Maxims 170. 2. Oakley v. Aspinwall, 3 N. Y. 547. 3. Respublica v. Dallas, 3 Yeates (Pa.) 300; People v. Wilson, 15 Ill. 388, 390. 4. Cooley Const. Lim. *412; State v. Intoxicating Liquors, 54 Me. 564, 568; Com. v. Ryan, 5 Mass. 90; Hill v. Wells, 6 Pick. (Mass.) 104; Com. v. Reed, 1 Gray (Mass.) 472; Com. v. Emery, 11 Cush. (Mass.) 411; Com. v. Burding, 12 Cush. (Mass.) 506. Where exclusive jurisdiction is vested in a magistrate, that by implication annuls objection of interest. Com. v. Ryan, 5 The rule is explained to be that Mass. 90. And SHAW, C. J., laid down that giving a jurisdiction by an act which also created some remote municipal interest evinced intent to defeat objection based on the interest. Com. v. Emery, 11 Cush. (Mass.) 406, 411. Statutory Removal of Disqualification. In Massachusetts, Gen. Stat., ch. 119, § 4, limited the disqualification of judge of probate from interest arising from claim against estate, to cases of claim exceeding $100 exclusive of interest. Hall v. Thayer, 105 Mass. 219, 222. "Proceeding."-Taking depositions was held a proceeding under the Connecticut statute, removing disqualification "in any proceeding." Hartford v. Canaan, 52 Conn. 166. 5. State v. Crane, 36 N. J. Law 394. 6. Freeman on Judg., § 146; Frevert v. Swift, 19 Nev. 400; People v. De La Guerra, 24 Cal. 73; Estate of White, 37 Cal. 190; Cottle, Appellant, 5 Pick. (Mass.) 483; Coffin v. Cottle, Pick. (Mass.) 287, 292; Hall v. Thayer, 105 Mass. 219 (s. c., 7 Am. Rep. 513); Converse v. McArthur, 17 Barb. (N. Disqualification by Statute. if the judge's authority is prohibited, the proceedings are void; otherwise, the common law rule obtains that the proceedings are voidable only, and valid until avoided.1 Again, in some States, the prohibition is absolute as to some proceedings, or for some reasons, and directory as to others.2 The rule of disqualification for the causes indicated is broad and is to be applied in all classes of cases where one is appointed to decide between conflicting rights.3 And where the statute pro Y.) 410, 411; Schoonmaker v. Clearwater, 41 Barb. (N. Y.) 200; Chambers v. Clearwater, 1 Keyes (N. Y.) 310; Darling v. Pierce, 15 Hun (N. Y.) 543, 546; Reams v. Kearns, 5 Cold. (Tenn.) 217; State v. Castleberry, 23 Ala. 85; Chambers v. Hodges, 23 Tex. 104; Gains v. Barr, 60 Tex.676; Newcome v. Light, 58 Tex. 141; Lacy v. Barrett, 75 Mo. 469; Ochus . Sheldon, 12 Fla. 138; Higbee v. Leonard, 1 Den. (N. Y.) 186. Mistaken supposition of disqualification will not validate order of sale by administrator made by substitute judge. It is coram non judice and absolutely void. Money paid into court thereon may be refunded. mett, 23 Wis. 30, 41. Compare Gay v. Morgan v. HamMinot, 3 Cush. (Mass.) 352; 1 Woerner on Adm., § 186. Correct decision will not overcome disqualification. Estate of White, 37 Cal. 192. 1. Heydenfeldt v. Towns, 27 Ala. 423. Judgment by confession is void, if rendered by prohibited judge. Chambers v. Hodges, 23 Tex. 104; Bates 7. Thompson, 2 Chip. (Vt.) 99; Hill v. Wait, Vt. 124. See also Low Rice, 8 Johns. (N. Y.) 409. 7'. Collateral Question hibited judge sits, since his judgment is -Where a procoram non judice, it may be questioned collaterally. Edwards v. Russell, 21 Wend. (N. Y.) 63; Schoonmaker v. Clearwater, 41 Barb. (N. Y.) 200, 203. Sale on execution to satisfy the judgment rendered passes no title; and the owner of the land may maintain suit against the purchaser to quiet the title. Fechheimer v. Washington, 77 Ind. 366. 2. See also infra, this title, VOID AND VOIDABLE ACTS. Thus in New Hampshire the acts of a probate judge who also acts as counsel are not void absolutely, but voidable on appeal, while other disqualifications totally prevent action by him. Stearns v. Wright, 51 N. H. 600. His acts as executor are Stearns v. Wright, 51 N. H. 600; Moses void. Bedell v. Bailey, 58 N. H. 62; sachusetts cases held that there was abv. Julian, 45 N. H. 52. So early Massolute prohibition where judge was interested, but that the acts of a judge of probate who had been agent or attorney were only voidable. Cottle, Appellant, 7 Gray (Mass.) 391. 5 Pick. (Mass.) 482; Bacon, Appellant, See also Morgan で。 で。 v. Hammett, 23 Wis. 40; State out ciple applies to county commissioners Police Court. And to police court. Williams v. Robinson, 6 Čush. (Mass.) 333. The surrogate is a “judge" within the judge who has been of counsel in a meaning of a statute prohibiting any acting in such cause as judge; and indecause, or who is interested therein, from pendently of any statute his acting would be improper. Darling v. Pierce, 15 Hun (N. Y.) 543. Justice of the peace is a "judge" ing interested "judges" from sitting. within the meaning of an act prohibitBaldwin . McArthur, 17 Barb. (N. Y.) 414, 422. Appraiser of Land.-Wolcott v. Elv, tion is known and waived. Fox v. Wilson v. Wilson, 36 Ala. 655. St. 519; Bank v. Porter, 2 Watts (Pa.) Fence Viewers.-Sanborn v. Fellows, |