np:maALREPORTE1h vol. 63.
DOUGLASS et al. v. BYRNES et al. (OircultCourt, D. Nevada. No. 574.
EMINENT DOMAIN....,.. CONDEMNATION PROCEEDINGS V4CATING REPOR;r. _.MISCONDUOT OF COMMIS-
July 9, 1894.)
The report, of ,commissioners to assess damages In condemnation proceedings\VUl be set aside where it appears that one of the commissioners, after enfurhYg 'Upon his duties, was retained by one of the parties to the "as i attQl,'ney, to defend a suit against him, even though the attorz;teyfor the other party may have known the fact,. and did not complain until the report was filed.
This was a petition by J.M. Douglass and others against J. D. Bryne$ and others forthe condemnation of a right of way for the construction of a mining tunnel. Petitioners moved to set aside the report of the commissioners. F. M. ,Hll.ffaketand J. L, Wines, for plaintiffs. W. E.F. E. L. Oampbell, for Judge. Petitioners move the court to set aside the report (there is a majority and minority report) of the upon the ground, among others, of irregularity in the of Commissioner,C. E. Mack, who was selected appointed by the court, as a "disinterested person/' to and assess the compensation. to be paid defendants by for the right of way condemned for the purpose of constructingatm;l.llel under the provisions of the "Act to encourage the milling,smelting or reduction of ores in the state otNevada."Gen. St. Nev. § 261; Douglass v. Byrnes, 59 Fed. 29. " , The fact is that this cmnmissioner, previoul!lt:o the time ofbis appointment, had acted as an attorney for one of the defendants, ,which wasUnkn.own to petitioners or their attorneys, or to the court; but it affirmatively ;appears _ that said .c(}mmissioner was not regularly employed for said defendant,apc:J,! had only been specially retained to try two cases' in the justice's :court, and that his employment for, and business with, was ended and settledprjor to his appointment as a cOJiWD.issioner. , If the conduct of this commissioner had "been in aU other, respects fair, impartial, and, disinterested, this alleged irregularity, would not be Of sufficientgl,'avity to the court in the report upon this ,gcround;but tl16 further fact appears that after his appointmentas.a, and after he had, taken the oath to "honestlY,faitbfuIIY,and impartially perform the dl,luesimposed" upon him as arcpmmissi()ner (Gen. St. Nev. ,§262)"and after all the tegtimony in. this proceeding had been taken, but before the 1i;p.al argument, he accepted 3; retainer and actedaa an attorney for "the same defendant in the trial of another cause ,in the. justice's .court. The -fact of such emploY/llentwas known to petitioners' counsel. No objection was made t() this conduct upon the part of
DOUGLASS V. BYRNES.
the commissioner until after the report of the commissioners was filed. It is, of course, conceded by defendants' counsel that the acts of the commissioner were such as to justify this court 1D setting the report aside, and that it would be its duty, in the interest of public justice, to do SO, were it not for the fact that petitioners' counsel were fully advised of the employment of the commissioner, and made no objection thereto; but for this reason it is earnestly argued that the objection goes only to the competency of the commissioner, and that it was waived by the failure of petitioners' counsel to object at the time to any further proceedings being taken in the case. This position is sought to be maintained upon the general and familiar principle, almost universally acknowledged, that parties in trials before a jury or court, or in other proceedings, having knowledge of the disqualification of a juror, judge, commissioner"referee, or arbitrator, must object to his acting as such when informed of such disqualification, or else they will thereafter be considered as having waived the same. All the authorities cited by defendants' counsel relate to the disqualification of the juror or commissioner at the time of his acceptance or appointment, by reason of his relationship to one of the parties (Groton v. Hurlburt, 22 Conn. 194; Towns v. Stoddard, 30 N. H.24; Robb v. Brachman, 38 Ohio St. 425), or interest in the result of the controversy (Davis v. Allen, 11 Pick. 468), or not possessing the qualifications required by the statute (Inhabitants of Whately v. County Com'rs, 1 Mete. [Mass.] 336; Walker v. Railroad CO.,3 Cush. 1; In re Wells County Road, 7 Ohio St. 17; Steele's Petition, 44 N. H. 220; Supervisors v. Stout, 9 W. Va. 703). A fair type of the cases relied upon by defendants is that of Inhabitants of Ipswichv.County Com'rs of Essex Co., 10 Pick. 519, where one of the commissioners, in proceedings taken to layout a highway, was the owner of land in Ipswich through which the road passed; and it was claimed that he was not a disinterested person, within the contemplation of the law. The court said:
"It was well known to the town that Mr. Wildes was a freeholder there, because they had taxed him. They were parties to the proceedings, and might have objected to his sitting If they thought fit; but they might also waive the exception If they chose, and if they were satisfied that the decision would be impartial. By consentIng to proceed, with a full knowledge of the ground of exception, the exception was waived. It would be .attended with great injustice were we to hold otherwise. A party mIght take his chance for a favorable decision, knowing of an exception which . would invalidate the proceedings if unfavorable, and intending in that event to rely upon it. Besides, if the exception had been seasonably takeu, the commissioner might have withdrawn, or been replaced by one against whom no exception would lie."
Thomp. & M. Jur. § 275 (2), and authorities there cited. But it will readily be seen that this principle falls short of determining the question involved in this case. If the objection rested solely upon the fact that the commissioner, prior to his appointment, had been employed by one of the defendants, and that fact was known to petitioners, then the cases cited and relied upon by defendants would be directly applicable; but the affidavits show that v.63F.no.1-2
tQ petitiQners;iQ-ll-til report of the com"mis$i,onets was, ftled.!:The _ real objection, however, is. the suhse· - defendants andQf the commissioner. A. ,jl.J'o1' not statutory, or, even if disPQund to so act as to he entirely free from, any have a tendency to influMce his action juror.' This isa duty which he owes to the pal'tielido the suit, and to the court. Where h34 beeu,a.ny.such on tb,e·paJ;'t;.of a juror as might affect hiS impal'tiality, ,or for the proper exercise of his the should he set aside. This rule has in criminakcases. Com. v. Roby, 12 · v.,Statej 9 Smedes 468; Davis v. State, 35 People' v. 13pannigan, -21 Cal. 340; - People v. Turner, 39 ,Qal.;Bi5; People.v. Myel's, 70 Cal. 583; 12 Pac. 719. In the trial .of if the rigllts of .the litigants were alpne concerned,. it might with some force: be argued that. the losing -party, with. fUll ,knoiWledge of all the facts, who made nO objection, but took his chance$of a favorable. ver(}.ict, ' should -be estopped to complain ,of th' improper 'cond'utt .of, the commissioner. .In :cases where the a juror altbough. improper and censurable,"is not a fair,and impartial administr,atiQll ,of justice, this W01idd undoubtedly ,be a propel' to pursue; ·but:"llnder alltbe. 'facti; circumstances of even if the cQurt:.sbl)uld contine itlilelt'$olely to tbe, question'of protecting'the rigbts ,and interests ,parties, itu!> questioqa,ble whetber petibe estopped from complaining upon the ground that , waived tbeirrlghts the·objection before the fOll Jtmight perbaps be said that petitioners had. no:opportunity to Qbject without prejudicing their· case. Petitionf()1';Highway in Newport, 48 N. ;a. 433; McDanieJs v.McDaniels, 4Q,iV't 363; Peterson ,v. Sigling.er (S. W. 1060. If the agent of the defelldantcorporation; who w.as a witness in the case, haQ informed both ,parties to the proceedings" or their cqunsel, that he. desired to employ the commissioner to try a small case in the justice's coul't, and asked if there were any objections, and both had consent, .the .· case would be deprlyeu of one of Its most unpleasant and SUSPlGI0,US features. But no such request was made. The agent employed the commissioner, so the record shows, without the knowledge or consent of either of the counsel in thisproceedingr . 1t does, however, appear that M:f. B;uffaker, one of petitioners' <lounsel, who. was attorney for the plaintiff 'in the justice's court, knew, on the day the suit was brought, that the commissioner ha,d been employed to defend the suit; it tul'ther appears that, on the day of the trial before the justice, this attorney accompanied the commissioner from Virginia to. ,l*lver Oity, and return; and upon this ground strong contentio.;is madethatpetitloners gave their consent to the employment:of the commissioner: But, without pursuing this particular pranch of the question further, the decision will be based upon other.'aIid .stronger. grounds.
The court's duty does. not necessarily end by $imply protecting the litigants. In order to preserve public confidence in the administration of justice it is <!3sential that all judicial trials and proceedshould be absolutely free from any suspicion of improper or undue influence. The business of the court should 1e so conducted as to inspire and demand the confidence and support of the public; otherwise, the trial of causes would be a mere mockery. Justice would be subverted, and become a byword of reproach. Even bribery and corruption would be encouraged and promoted by the direct approval of the courts. The amount of the fee re" ceived by the commissioner is immaterial. It is the principle of the thing that controls. If he had the right to receive $30 from the defendant to try a case one day, he had the right to receive from the petitioners the next day, provided the petitioners had a case and were willing to employ him. It requires no argnment to show what results would be likely to follow if this principle should be recognized or sanctioned by the courts. To prevent such methods in the trial of causes being carried out, courts are justified in looking at the principle invoived, independent of the rights of parties, and should so act as to protect the fountains of justice, and keep them pure and free from suspicion, irrespective of the i]uestion whether the objections were timely made. The courts, in so acting, are not eonfined to extreme cases of bribery or corruption, or of actual prejudice or bias. No wrong may have been intended. No thought of improper influence may have entere.d the mind .of the defendant who employed the commi,ssioner, and the commissioner may have been entirely free from any prejudice in favor of the defendants. But the defendant had no right to employ the commissioner while he was acting 'as a "disinterested person" in said proceedings, and the commissioner should have held himself aloof from accepting employment and receiving pay theref()1' while he was so engaged. It is the duty of the court to set aside the report, in justice to itself, as well as to the petitioners, so that proceedings may be had herein shall be conducted impartially and fairly, and that the report of the commissioners, when filed, lUay be entitled to respect, and merit the c()nfidence of the court that it is free. from any bias or prejudice upon the part of any commissioner, and not clouded by the misconduct of either of the partiBs. Litigants in courts of justice must learn, if they do not already know, that their interests cannot be promoted, upheld, or sustained hy any conduct of this sort; and it is the duty of the court to let the general public know that such misconduct will not be tolerated in any case. Jurors, commissioners, arbitrators, and referees, as well as courts, should so conduct themselves that neither the parties nor the general public could have any just cause of complaint or any reasonable ground for suspicion against their fairness, impartiality, and disinterestedness. Where there has been any upon their part whicb. might have a tendency to disqualify them from the exercise of a fair .and impartial consideration of tl1e case, and it does notaffirJDativelyappear to the satisfaction of the court that.it did duty of the courts to not' have that resqIt, is
and reports aside. The views herein expressed are sustained by abundant authority. Mining Co. v.Showers, 6 Nev. 602, and authorities tber.>ecitro.; Railroad 00. 't.!Porter, 32 Ohio St. 333; In re Buffalo, etc.,'B-lOo., 32 Run, 292; Ensign'v. Harney, 15 Neb. 330, 18 N. W. 73; nowler v. Washington, 62 Me. 302; Palmer v. Railroad 00.,2 Idaho, 298, 13 Pac. 429; McDaniels v. McDaniels, supra; Dond v. Guthrie, 13 TIl. App. 658; Johnson v.Hobart, 45 Fed. 542; Burke v; McDonald (Idaho) 29 Pac. 100; Patten's Petition, 16 N. H. 283; Deacon v. Shreve,22 N. J. Law,183; Blake v. County Com'rs, 114 Mass. 585; Peavey v.Wolfborough, 37 N. H, 293; Bank. v. Fulmer, 31 N. J. Law,57 ; Burrowsv. Dick!inson, 35 Hun, 500; Thomp. & M. Jur. § .864 (5), (7), pp.438, '439, and authorities there cited. 'In Mining Co. Y. Showers, in an -able and carefully prepared opin. ion, the law upon this' subject was clearly expressed. There the prevailing party had treated the jury. The court, after reference to the rule of the common law which prohibited the separation of jurors and the changes that had been made in. this rule, said:
"But so much ()f the common law as was essentlal to its wise polley in this behalf, and consistent with the practical administration of justice under the clu!.llged conditions wrought by advancing civlUzation, remains in full force, and must so rema.inuntUabrogated by legislative enactment. That pollcy was to obtain twelve impartial and competent jurors, and, after their selec· tion, to keep them so by securing them,' as far as might be, from the possi· bility of improper intercoUl'se or undue influence. * * * To permit eating and drinking at the expense of the prevailing party is now, as it ever was. impolitic, unsafe, and unnecessary. The weak and faclle may be influenced by such attentions, and though it appears in a given case that none have been influenced, still thepractlce breeds suspicion and dislike of a mode of trial most admirable and useful if it attain and deserve the confidence and respect of the public; worse than -qseless if it faU of either such attainment or desert." .
'In Ensign v. Harney, two of the jurors requested as a favor, and obtained from the attorney of one of the parties, his horse and buggy to carry them home and return on the following Monday. A verdict having been rendered in favor of the attorney's client, it was set aside, and a new trial awarded. Affidavits were filed showing that the transaction was open and above board, and was not done with the intention of exercising an influence on the jurors, and that the opposing attorneys had been in the habit ofextending like favors to the jurors, and that no complaint was made. The court said:
"Unless fair-minded, unbiased jurors can be selected, a trial becomes a mere farce, dependent, not upon the merits of the case, but the extraneous circumstances, such as tile bias, prejudice,or interest of the jury. * · * Where a juror is accepted as being impl\.rtial, he must remain so during the tria,l. .To permit ):jim to accept favors from either party is to put him under obligations to party, the tendency of which is to bias his judgment. Nor is it material that such favors were not intended to influence the juror, a/3 it cannot be determined how far they may have had that effect, and such will 'Vitiate the verdict."
In Be Bu:ffalo,etc., ROO., where there was a motion to set R,&ide the report of the comIllissioners awarding to the respondent damages for the right (jf way through his land, it appeared, among other thingS, that the commissioners rode to respondent's farm in a .carriage provided by him to enable them to view the premises; that
CLYDE II. RICHMOND &: D. R. CO.
one of them took supper with him, and was sent home in a carriage provided by the respondent; that another one of the commissioners, after the report was signed, accepted from respondent a sum of money for his services and expenses in excess of the amount allowed by statute. The court said:
"The acts referred to probably had no effect upon the result in the present case, but it will not do to make a precedent of them, for, if such practices were to become common, it would be easy for designing men to make them a cover for corruption."
In Thompson & Merriam on Juries the authors, in treating of the subject of tampering with the jury by the successful party, say:
"Where the successful party to the suit Is shown to have attempted, by improper means, to influence the verdict in his favor, whether by corrupting intimidating particular jurors, by arousing prejudice in their minds against the opposite party or his cause, or by undue hospitalities or civilities, the verdict will be set aside, on grounds of public policy, as a punishment to the offender, and as an example to others, without reference to the merits of the controversy, and without considering whether the attempt was suc.cessful or not" Thomp. & M. Jur. § 348 (3), p. 406, and numerous authorities there cited; Hayne, New Trial, § 48, and authorities there cited.
Petitioners' counsel cited no authorities whatever in relation to the questions discussed in this opinion. Their contention was that the report should be set aside upon the grounds of excessive ,damages appearing to have been given under the influence of passion or prejudice; insufficiency of the evidence to justify the report; that it was against the weight of evidence, and contrary to law. But the conduct of one of the parties and of the commissioner has placed it beyond my power to examine the report upon the merits, further than to say that the reading of it has not removed the impression that the conduct of defendant may have biased the com:missioner in his favor, whether it was so intended or not. The report of the commissioners is set aside, and the commission-ers are discharged. Upon proper application, three disinterested persons will be appointed as commissioners herein, as provided by statute, and they will be admonished to keep themselves "disinter.ested" until their duty in the proceedings is fully performed.
CLYDE et aI. v. RICHMOND & D. R. CO. et at. CENTRAL TRUST CO. OF NEW YORK v. SAME. Ex parte CHESTER & L. N. G. R. CO. Ex parte HARDEN. (CIrcuit Court, D. South Carolina. August 9, 1894.)
RAILROAD RECEIVERS-LEASED LINES-DIVERSION OF MONEy-TAXES.
ReceIvers who take possession of and operate leased lines for more than a year,and receIve the earnIngs thereof, are bound to disburse the same in accordance with the terms of the lease; and where they apply such earnings to the payment of interest on the bonds, when the lease requIres that the taxes shall be flrst paid, the court will require them, even after the leased roads have been sUlTendered, to restore the diverted :money by paying the taxes in question.