Trustees Internal Improvement Fund, Appellant, vs. William Bailey, Appellee, 10 Fla. 213

FORWARD, J., delivered the opinion of the Court. The appeal in this case was argued before this Court on the 14th and 15th days of January, A. D.1862, and-on the 51st day of said month and year this Court delivered its opinion affirming the decree which had been rendered in the case-by the Judge, of the Middle Circuit. —See 10 florida, page 125. Fifteen days were then granted to counsel tp file petition for a rehearing, and on the 19th of April, 1862, the prayer if the petition was denied.

And now at the opening of the present term, on the 7th December, 1863, the Attorney General presents another application for a rehearing, and stated that he did so, not as the attorney of the appellants, but solely in obedience to the 8th

section of

an act of the General Assembly, passed since tbe decision of that case, to wit: on the 10th December, 1862, and entitled “An act to repeal am act to facilitate the construction of the St. John’s and Indian Diver Canal, approved January 1st, 1857, and for other purposes,” which reads as follows, viz: “ That the Attorney General shall file an application before'the Supreme Court for a rehearing in the case of the Trustees of the Internal Improvement Fund vs.

William Bailey, before a competent tribunal, or by bill or otherwise, to be filed by him, shall come before a competent tribunal to have the questions, in the above case settled, and the questions arising out of this. act in regard to the Indian River Canal.” Tbe Attorney General, simultaneously with the presenting of the petition, and as an initiatory step to its hearing, moved to, docket the case of the Trustees of the Internal Improvement Fund, appellants, vs. William Bailey, appellee, whérenpon M. D.

Papy, Esq., who had been Attorney and Solicitor for said William Bailey in said cause and still representing him, being present, objected to said motion on the ground that so much of said eighth

section as directs the interference in a suit between said litigant in this Court, is a Legislative interference with the Judicial Department by attempting to exercise a power properly belonging to tbe Judiciary, violative of the vested rights of said William Bailey, and therefore unconstitutional. A question of the unconstitutionality or constitutionality of said enactment being thus presented, the Chief Justice and Associate Justice Walker severally ■stated that they had learned, since the .said case of the Tn» tees of the Internal Improvement Fund vs.

William Badcy was decided, that it was the opinion' of one of. the counsel for the Trustees that they had an interest in the questions involved in said cause such as disqualified them from sitting therein, and severally made the following statement, to wit •. The Chief Justice stated that he was not, nor is not now, a stockholder in said Company ; but that, in the organization of said Company, he subscribed to the amount of $3,000, taking the certificates of stock payable to his six children, in equal proportions. Five of said children were minors at the time, and four of them still under age.

That the stock was paid for out of his individual funds and not out of any trust fund — that the said shares were a gift to his children. . Associate Justice Walker stated that he was a stockholder in the Pensacola and Georgia Rail Road Company at the time said cause was decided, but that"since said decision he had transferred his stock to another person and was not now a stockholder; and they severally submitted for the decision of the Court whether, undér this statement of facts, an order should be made calling in two.Circuit Court Judges to sit on the hearing of said application.

At the request of the Court,- the question of disqualification of said Judges was fully and ably discussed by the Hon. T. Baltzell and M. D. Papy, Esq. The Court, having taken the question under advisement and duly considered the same, delivers the following opinion : It is provided in the 5th

section Of the act organizing the ■Supreme Court of Florida, passed the 11th January, 1851, “ That whenever, from any cause, any one or two Justices “ of the Supreme Court are disqualified 'or disabled from u hearing and determining any cause brought before them, u it shall be the duty of the Justices of the said Court to no- “ tify the same to any one or two Judges of the Circuit “ Court, as the case may be, and at the time and place where “ such causes shall be set for hearing, and it is hereby made “the duty of said Circuit Judge or Judges, Upon receiving “ such notice, to attend at the time and place designated,- “ and he or they shall be and are hereby invested with full “ authority, in conjunction with the remaining Justice or “ justices of the Supreme Court, to hear and determine the “ causes of which they were notified as aforesaid.” By

an act passed the 4th December, A. D. 1862, entitled “

An act in relation to the qualification of Judges,” it is enacted “That no Judge of any Court or Justice of the “ Peace shall sit or preside in any cause to .which he is a “ party, or in which he is interested, or in which he would “be excluded from being a juror by reason of interest, consanguinity, or affinity to either of the parties; nor shall he “ entertain any motion in the cause other than to have the “sanie tried by a competent tribunal.” 2d, “That the “ Judge or Justice so incompetent shall retire of his own, “ motion, and without waiting for an. application to that “effect; that any and all judgments, decrees and orders, “ made by a Judge or Judges so incompetent, shall be of no “ force or validity, and are hereby declared to be null and “ void, except an order for the trial of the cause as herein-before provided.” It will -readily be seen that to render the Circuit Court judge eligible and competent to sit as one of the Supreme Court, it is absolutely necessary the retiring Justice of the Supreme Court should.be disqualified or disabled from hearing 'and determining the cause.

This disqualification must •be a legal one, not an imaginary one, nor one of feelings of delicacy, nor of mocked inconsistency, but must be valid in law. Were a Circuit Court Judge to sit in a case in which .the retiring Supreme Court Justice was not in law disqualified, a decision made by him would be just as much coram non judice as it would be where a Supreme Court Justice sits in a cause in which he was disqualified. . It is the disqualification of the Supreme Court Justice that -authorizes the order for calling in a Circuit Court Judge.

The act of December, 1862, in relation to the qualification of Judges, is nothing more than what was the law before, and has always been so considered in this State, excepting, it may be,'in so much thereof as declares judgments, decrees and orders, made by ah incompetent Judge, void instead of voidable.

Nor is the provision that an incompetent Judge shall retire of his own motion, &c., anything but what has been the uniform practice of this Court, in eas'es where the incompetency of the Judge for any cause, was clear, certain and manifest; so in cases where there has been a doubt or question as to the disqualification of one of the Justices, the question has' been referred to the decision of the Court. This seems to be the practice of other States, where, like our own, no provision is made as to how and iii what manner the question of disqualification is to be determined.

Such is the course pursued in Tennessee, as will be seen by reference to Waterhouse vs. Martin — Peck, 374 — wherein the Court say it does not rest with the Judge alone, whose right to sit is questioned. A proper administration of justice requires that no Circuit Court Judge shall sit in a case where there is no disqualification, as much as it does that no disqualified Supreme Court Judge shall act.

There being no mode of determining this question, provided for by statute, we hold that the safest and legal way of determining the same is by a decision of the Court, in cases where there is any question or doubt as to the qualification of the Judge. The degrees of Consanguinity, affinity, and the question as to whether a Judge has an interest or not, is one in which the purest and best legal minds may in all honesty differ. Such has been found to bo the case in other States, ' not only as-to qualification of Judges, but as to competency of jurors and witnesses.

There is no doubt but that the same objection must lie against a Judge as against a juror; because one is to judge of the law, the other of á fact — 19 Johnson, 172; Pearce vs. Atwood, 13 Mass., 341. With jurors, a principal challenge is such that where the cause assigned is such that'it carries with it prima facie evident marks of suspicion, either of malice or favor, as that a juror is of lrin to either party within the ninth degree — that ho has been formerly a juror in the samo cause — that he has an interest in the cause. — 3 Blackstone’s Com., 363.

Interest, in the issue to be tried, is a good and sufficient ground of challenge to a juror ; so interest, in the question to be determined by a Judge in this Court, is a good and sufficient disqualification. No man can sit in judgment in his own case. Natural reason and natural justice forbid it, and so does the common law. No matter how slight the interest which a juror may have in the issue; if ho has any, the common law will not permit him to try the cause — so with a Judge. Says Lord Mansfield, in Hesketh vs.

Braddock, 3 Burrows, p. 1856 : “ The law has so watchful an eye to the pure and unbiassed administration of justice, that it will never trust the passions of mankind in the decisions of any matter of right. If, therefore, the Sheriff, a juror, or a witness be m cmy sort interested in- the matter to be tried, the law considers him as under tin influence which may warp his integrity, or pervert his judgment, and therefore will not trust him. The mi/rmtmess of the interest won’t relax the objection.

Por, the degrees of influence can’t be measured— no line can be drawn, but that of a total exclusion of all degrees whatsoever.” A Judge, as well as a juror, must be inwnadiatel/y interested in the very issue in question, and not remote and uncertain or speculative. A mere speculative possibility of such an interest is no sufficient ground for a principal challenge to a juror or Judge. In the case last above quoted, the learned Judge says; “The case of the City of London vs. Wood was cited on both sides. Mr.

Davenport relied on the words of Lord Chief Baron Ward, that the objection to the Mayor’s sitting as Judge in a cause of the corporation was not so much in point of interest as inconsistency. But is not the interest a great ingredient in that inconsistency ? And hence comes the rule that no man shall be a Judge in his own cause.’ ” From this we may infer that if there was an apparent inconsistency, in which interest was not mingled, that therefore inconsistency would not, of itself, be a cause of challenge.

It would then amount to a question of sensitiveness or delicacy, which would not disqualify a juror or render a Judge of the Supreme Court so incompetent as to make a Circuit Court Judge competent to try the issue. The case of Wood vs. Stoddard, 2 Johnson, 194, was a qui 'tarn action to recover usurious interest, one moiety of which, by statute, went to the use of the poor of the town where it was received. That Court would not permit inhabitants of the town to try the action.

The reason is obvious : there was an immediate interest in the issue — it was not remote, speculative, uncertain, or a mere possibility. .In the case of Page vs. the Contoocook Valley Rail Road, 1 Foster’s Reports, 438, the issue Was awarding damages for laying out a road across private lands. The juror challenged was a stockholder in another. Rail Road, which was not a party before the Court; but there was a contract between both roads, that the sums paid to land owners would be part of the expense of constructing and completing the roads. The Court very properly held the juror disqualified.

Iii tliis case, as in the last, there was an immediate interest — it was not a mere possibility. The case of Sanborn vs. Fellows, 2 Foster, 481, contains a very clear and instructive exposition of the law on this subject. That was a case where a relative of the judicial officer was related to one of the parties. The interest of the relative was immediately in the issue. The Court very properly held him disqualified. In Heydenfeldt vs. Towns et al., 27 Ala. Reports, p. 429, the Judge appointed commissioners to audit the claims against the estate of which he was a creditor.

The Court held that as he was interested in the distribution of the estate, he was incompetent to appoint commissionors to audit. And in this case that Court say: The g’eueral rule unquestionably is, that it is improper and irregular for a Judge to try any cause in which, under the law, he had an interest which would disqualify him as a witness.” In support of which they cite Dimes vs. the Grand Junction Canal Company. — 16 Eng. L. & Eq. Reports, p. 63.

And, in commenting upon that case, they say it “ is entitled to the highest consideration ; being the judgment of the House of Lords, consisting of the Lord Chancellor, Brougham and Campbell, assisted by the Judges, after full discussion by eminent counsel, the case itself being one of great interest, and importance.” ’ Now, .this is a limitation to the broad rule laid down by Lord Mansfield, in 3 Burrows, as' to interest; for we well know there are several cases in which a witness, having an interest in the issue, may testify. For instance, where his interest is equally balanced, &c.

The Supreme Court of Arkansas, in Fowler, Adm’r, vs. Byers, Adm’r, 16 Arkansas, 196, decided that a Circuit Judge is riot disqualified to preside, where he is related by affinity, within the constitutional degrees, to one of the parties in a cause, who is merely a Trustee, and has no interest in the determination of the cause. Because, they say, ho was but a Trustee, holding the mere legal title of a portion of the lands proceeded against, and the complainants sought no decree against him personally, nor against any thing in which he had any interest. — Underhill vs. Dennis, 9 Paige, 206.

Having laid down the above principles of law, which, we thmlc, should govern this case, we will proceed to inquire what was the question at issue between the parties in the said case of the Trustees of the Internal Improvement Fund vs.

William Bailey, and whether the Pensacola and Georgia Rail Road Company have any immediate and certain interest in thq issue in that case — that is to say, whether the said Company will gain or lose in either way it may be decided; which issue was, whether the General Assembly had the power to divert any portion of said fund to other purposes than those designated in said act, to wit: for the purpose of clearing out the mouth of the river Apalachicola, m derogation of the rights of said William Bailey as the holder of bonds issued by said Pensacola and Georgia Rail Road Company, under the said Internal Improvement act ?

The answer of the Trustees to the bill of complaint filed by said William Bailey — to enjoin them from paying-out of said fund, in derogation of his rights, the amount thus appropriated for the clearing out the mouth of said river, and the argument of their counsel — assumed that the said Internal Improvement act was unconstitutional in the following particulars, to wit: 1st. So much of the said act wherein it pledged the fund to a Canal and certain Rail Roads — leaving out navigable streams — and so much as. pledged the lands given to the State for Internal -Improvement. 2d.

Wherein it promised to jiay out of said fund, agreeably to the provisions of said act-, the interest from time to time, as it may become due on the bonds to be issued by the different Rail Road .Companies under authority of that act, if the Rail Road Companies did not pay said interest; and that, therefore, there was no contract to pay the interest on said bonds with any one. But all, we think, are embraced in the question as above stated. This leads us now to examine the provisions of the Internal Improvement act.

It enacts that the Companies which shall accept the act might issue bonds to a certain extent per mile, and that these bonds-of the Companies should contain a certificate on the part of the Trustees that they are issued according to the provisions of the act, and that the trust fund is pledged to pay the interest. — See

section 3. It will be noticed that the Trustees themselves assume no obligation in their certificate, but merely declare wliat the act proposes to do. The act requires the Companies to pay, during the progress of the construction of the road, 50 por cent, of their earnings, to be applied to the interest of tlieir bonds. — See

section 11. Before receiving their bonds from the Trustees, to whom they are delivered for the purpose of getting certificate of the pledge of the fund to pay interest, the Companies are required to pay the first six months’ interest or cut off the first coupon. — See

section 9. The 12th

section requires the company to pay to the Trus? tees of the Internal Improvement fund at least one-half of one per cent., after the completion of the road, on the bonds* issued by them, every six months, for a sinking fund which is created to pay the principal of the bonds. It will be borne in mind that no other provision is made in that act for the payment of the principal, and the fund is not pledged for this purpose. The Trustees are authorized to purchase the bonds as an investment of the sinking fund; but this, it is provided, shall not relieve the company from paying the interest.

For all payments made out of the trust fund on account of interest, the Trustees are entitled to receive stock from the company equal to the amount paid. The company would still be bound to pay the bonds, principal and interest. — See

section II. The foregoing being all the provisions of the Internal Improvement act touching this question, for the purpose of testing whether the Pensacola and Georgia Rail Road Company had any interest in the issue in this case, let us ask the question, Could the company have brought a suit against the Trustees to enjoin them from diverting the fund ? and, if not, why not ? Turn to the act and We find the answer to be, because it had no interest.

In response to such an •application, any Court would very properly say to the Rail Road Company: You got all you were entitled to when the guarantee of interest was signed by the Trustees. And the Court would also say to them : As to the disposition of the fund, you have no concern — that is a matter between the bond-holder and Trustee; all you (the company) have to do is to pay up your interest, and if you do not, for want of ability, pay the whole amount, and the Trustees pay the deficiency, then you must make it good to the Trustees by delivering to them an equal amount of stock.

We are at loss to conceive any ground under which the Rail Road Company could have made the application, because, as we have already stated, we cannot find that, by the provisions of the Internal Improvement act, the said company had any interest. If, then, the said Rail Road Company could not make such an .application to the Court, because there was no injury done to it. how can it bo said Urn company liad an interest in the suit between the Trustees of the Internal Improvement Fund and William Bailey ?

It may be asked: Suppose the certificate of the Trustees on bonds issued by the Rail Road Company, which are not sold, should be declared void, would not this affect the valhe of the bonds for sale, and are not the company, in consequence, interested in the question at issue in this cause ?■ — • would it not also depreciate the bonds sold, so that the company could buy them at reduced prices ? The answer to that is, the interest supposed in the question is but a speculative interest.

It would be difficult, we think, for any Court to say that in such a case the bonds would be affected, so far as the Bail Boad is concerned, because it depends on the views of men and not on the law of the case. Some companies — as in the case of the Pensacola and Alabama Rail Road Company, and the Tocoi and St. Augustine Rail Road Company— might prefer the bonds untrammelled and not subjected to the impositions 'and restrictions of said Internal Improvement act; such bonds might or might not sell best in market, according to the views of men.

On bonds not issued under the Internal Improvement act, the obligation of the company is the same; and if the traffic of the road gives ordinary assurance of the ability of the company to pay interest as well as ultimate principal, we may suppose moneyed men would give as much for the bonds without as with the certificate. The certificate of the Trustees will add nothing to the value of the bond, if the company could not pay. It is manifest, therefore, that the interest supposed is a speculative interest, not direct or certain, and not -in the fruits of this litigation.

It is upon the supposition that a Judge’s or juror’s interest is such that his judgment might be influéneed, that the law considers him disqualified. Docs a speculative interest — which may or not exist, one way or the other, as in this case, for it cannot he known whether the company would he most benefited if the fund were or were not enjoined upon the application of the bondholder — enter the mind'of the Judge so as to influence him ?

How could he be influenced, when he neither knows, or can know, how he is to be benefited % , The interest which disqualifies is a legal interest, certain and dependent on the result of the ease. Again. It may be asked: Suppose the certificate declared good and binding, and tbe fund inalienable for any other purposes than those expressed in the act, would it not so establish the validity and value of the bonds that it would increase their prospects of sale, thereby facilitate the completion of the road and thus make the said Rail Road Company interested ?

This question is of a similar character as the former — indeed is the converse oí it — and hence the same observations as to speculative interest are applicable. : The whole question in this suit was, and is, between William-Bailey, the bond-holder, and the said Trustees; because it was for the benefit of the bond-holder that the trust fund was pledged, and the contract is with them. Any decision that the Court could have rendered, declaring the certificate of the Trustees unconstitutional, would not have affected the legality of the bonds or the obligation of the company to pay them, principal and interest.

The Rail Road Company had no interest in the fund, which was. the question in the case. We have, thus far, supposed the constitutionality of the Internal Improvement act as involved in the issue in this case. But it was not, in fact, so involved; and could not he brought in, notwithstanding the answer set it np and the counsel argued it. The. Trustees were not the parties to make if, and could not make it; for the reason that if the Internal Improvement act was unconstitutional, then they were not Trustees.

It must be obvious that the interest of the said Rail Road Company, in the case at bar, is speculative and uncertain. The said road having no interest in the result of this suit, or the issue presented, it follows that the said Chief Justice and said Associate Justice are not disqualified to sit in this cause, and hear and determine the matters in issue; and, as they are not disqualified, a. Circuit Court Judge would not be competent to sit. The order for calling in Circuit Court Judges cannot, in law, be made.