tutional rights were not affected. Tyler v. Judges of Court of Registration, 179 U. S. 405, 409, 45 L. ed. 252, 254, 21 Sup. Ct. Rep. 206; California Reduction Co. v. Sanitary Reduction Works, 199 U. S. 306, 318, 50 L. ed. 204, 209, 26 Sup. Ct. Rep. 100. In the case of Probasco v. Raine, 50 Ohio St. 378, 34 N. E. 536, the question arose whether the fee of 4 per cent payable to county auditors for placing omitted property on the duplicate list for taxation, which required investigation and quasi judicial consideration, was invalid. The court held that it was not, and that the objection urged there could not be based on the argument that a man could not be a judge in his own case, that the auditor had no case to be adjudged, but that on the contrary he was the taxing officer before whom other parties were cited to appear and show cause why they should not bear their equal burden of taxation. The court said that the action of the auditor was not final so as to cut off further inquiry, but that the whole case might be gone into anew by proper proceedings in court. An exactly opposite conclusion reached by the United States circuit court for the northern district of Ohio in Meyers v. Shields (C. C.) 61 Fed. 713, 725 et seq. was In other states than those above mentioned the minor courts are paid for their services by the state or county regardless of acquittal or conviction, except that in Virginia the minor courts receive one-half of the usual fees where there is acquittal. Four states have put into their constitutions a provision that the state must pay the costs in such cases in case of acquittal. They are California, Florida, Louisiana, and South Carolina. The strict common-law rule was adopted in this country as one to be enforced where nothing but the common law controlled, and citizens and taxpayers have been held incompetent to sit in suits against the municipal corporation of which they Diveny v. have been residents. Elmira, 51 N. Y. 506; Corwein v. Hames, 11 Johns. 76; Clark v. Lamb, 2 Allen, 396; Dively v. Cedar Falls, 21 Iowa, 565; Fulweiler v. St. Louis, 61 Mo. 479; New Boston's Petition, 49 N. H. 328; Com. v. McLane, 4 Gray, 427; Fine v. St. Louis Public Schools, 30 Mo. 166, 173. With other courts, however, and with the legislatures, the strict rule seemed to be inconvenient, impracticable and unnecessary, and the view was taken that such remote or minute interest in the litigation might be declared by the legislature not to be a reason for disqualification of a judge or juror. A case, much cited, in which this conclusion was reached and in which the old English corporation cases were considered was that of Charleston v. Pepper, 30 S. C. L. (1 Rich.) 364. The recorder of the City of Charleston sentenced a nonresident of the city for violation of a city ordinance requiring him to take out a license for what he did or to pay a fine not exceeding $20. The contention was that the defendant was a noncorporator and nonresident and not subject to the jurisdiction of the city court; that the recorder was a corporator and interested in the penalty and therefore was not competent to try the cause. The court said (p. 366) in respect to Hesketh v. Braddock, 3 Burr. 1847, 97 Eng. Reprint, 1130, supra: "It will be remarked that that case depends altogether upon the common law, and if the city court depended upon the same for its jurisdiction, the objection might be fatal. But the establishment and jurisdiction of the city court commences with the Act of 1801. . By that act it is clothed with the power of trying all offences against the by-laws of the city, and for that purpose is given concurrent jurisdiction with the court of sessions. This grant of power is from all the people of the state, through their legislature, and surely they have the power to dispense with the common TUMEY v. OHIO. (— U. S. 71 L. cd. (Adv. 508), 47 Sup. Ct. Rep. 437.) law objection that the corporators And the same view is taken in Com. v. Ryan, 5 Mass. 90; Com. v. Reed, 1 Gray, 472, 475; Thomas v. Mt. Vernon, 9 Ohio, 290; Clermont County v. Lytle, 3 Ohio, 289; Wheeling v. Black, 25 W. Va. 266, 280; Justices of Burlington v. Fennimore, 1 N. J. L. 190; Foreman v. Marianna, 43 Ark. 324; Cartersville v. Lyon, 69 Ga. 577; Omaha v. Olmstead, 5 Neb. 446; Hill v. Wells, 6 Pick. 104; Com. v. Emery, 11 Cush. 406; Bennett v. State, 4 Tex. App. 72; Wellmaker v. Terrell, 3 Ga. App. 791, 60 S. E. 464; State v. Craig, Mr. Justice Cooley, in his work on Constitutional Limitations, 7th edition, page 594, points out that the real ground of the ruling in these cases is that "interest is so remote, trifling and insignificant that it may fairly be supposed to be incapable of affecting the judgment or of influencing the conduct of an individual. And where penalties are imposed, to be recovered only in a municipal court, the judges or jurors. in which would be interested as corporators in the recovery, the law providing for such recovery must be regarded as precluding the objection of interest." But the learned judge then proceeds: "But except in cases resting upon such reasons, we do not see how the legislature can have any power to abolish a maxim which is among the fundamentals of judicial authority." Referring then to a remark in the case of Re Leefe, 2 Barb. Ch. 39, that the people of the state when framing their constitution might possibly establish so great an anomaly, if they saw fit, the learned author says: "Even this must be deemed doubtful since the adoption of the 14th article of the amendments to the Federal Constitution, which denies to the state the right to deprive one of life, liberty, or property, without due process of law." From this review we conclude that a system by which an inferior judge is paid for his service only when he convicts the defendant has -fine sole effect. not become so em- judge's costs- The mayor received for his fees and costs in the present case $12, and from such costs under the prohibition act for seven months he -when interest of judge becomes material. made about $100 a month, in addition to his salary. We cannot regard the prospect of receipt or loss of such an emolument in each case as a minute, remote, trifling or insignificant interest. It is certainly not fair to each defendant brought before the mayor for the careful and judicial consideration of his guilt or innocence that the prospect of such a prospective loss by the mayor should weigh against his acquittal. These are not cases in which the penalties and the costs are negligible. The field of jurisdiction is not that of a small community engaged in enforcing its own local regulations. The court is a state agency imposing substantial punishment, and the cases to be considered are gathered from the whole county by the energy of the village marshals and detectives regularly employed by the village for the purpose. It is not to be treated as a mere village tribunal for village peccadilloes. There are doubtless mayors who would not allow such a consideration as $12 costs in each case to affect their judgment in it, but the requirement of due process of law in judicial procedure is not satisfied by the argument that men of the highest honor and the greatest selfsacrifice could carry it on without danger of injustice. 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. But the pecuniary interest of the mayor in the result of his judgment is not the only reason for holding that due process of law is denied to the defendant here. The statutes were drawn to stim-. ulate small municipalities in the country part of counties in which there are large cities, to organize and maintain courts to -failure to provide due process—prejudiced judge. try persons accused of violations of the prohibition act everywhere in thé county. The inducement is offered of dividing between the state and the village the large fines provided by the law for its violations. The trial is to be had before a mayor without a jury, without opportunity for retrial and with a review confined to questions of law presented by a bill of exceptions, with no opportunity by the reviewing court to set aside the judgment on the weighing of evidence, unless it should appear to be so manifestly against the evidence as to indicate mistake, bias or wilful disregard of duty by the trial court. It specifically authorizes the village to employ detectives, deputy marshals and other assistants to detect crime of this kind all over the county, and to bring offenders before the mayor's court, and it offers to the village council and its officers a means of substantially adding to the income of the village to relieve it from further taxation. The mayor is the chief executive of the village. supervises all the other executive officers. He is charged with the business of looking after the finances of the village. It appears from the evidence in this case, and would be plain if the evidence did not show it, that the law is calculated to awaken the interest of all those in the village charged with the responsibility of raising the public money and expending it, in the pecuniarily successful conduct of such a court. The mayor represents the village and can not escape his representative capacity. On the other hand, he is given the judicial duty first of determining whether the defendant is guilty at all, and second having found his guilt to measure his punishment between $100 as a minimum and $1,000 as a maximum for first offenses, and $300 as a minimum and $2,000 as a maximum for second offenses. With his interest as mayor in the financial condition of the village and his responsibility therefor, might not a defendant with reason say that he He (— U. S. —, 71 L. ed. (Adv. 508), 47 Sup. Ct. Rep. 437.) feared he could not get a fair trial or a fair sentence from one who would have so strong a motive to help his village by conviction and a heavy fine? The old English cases cited above in the days of Coke and Holt and Mansfield are not nearly so strong. A situation in which an official perforce occupies two practically and seriously inconsistent positions, one partisan and the other judicial, necessarily involves a lack of due process of law in the trial of defendants charged with crimes before him. Boston v. Baldwin, 139 Mass. 315, 1 N. E. 417; State ex rel. Colcord v. Young, 31 Fla. 594, 19 L.R.A. 636, 34 Am. St. Rep. 41, 12 So. 673. It is, of course, so common to vest the mayor of villages with inferior judicial functions that the mere union of the executive power and the judicial power in him cannot be said to violate due process of law. The minor penalties usually attaching to the ordinances of a village council, or to the misdemeanors in which the mayor may pronounce final judgment without a jury, do not involve any such addition to the revenue of the village as to justify the fear that the mayor would be influenced in his judicial judgment by that fact. The difference between such a case and the plan and operation of the statutes before us is so plain as not to call for further elaboration. Counsel for the state argue that it has been decided by this court that the legislature Courts-stateconstitutional limitations. of a state may pro misdemeanors committed anywhere Fines-right of of. pose of the fines collected in crim- Reward-for ulate prosecutions initiating prosecutions. ing to those who shall initiate and carry on such prosecutions rewards. for thus acting in the interest of the state and the people. The legislature may offer rewards or a percentage of the recovery to informers. United States v. Murphy, 16 Pet. 203, 10 L. ed. 938. It may authorize the employment of detectives. But these principles do not at all affect the question whether the state by the operation of the statutes we have considered has not vested the vide such system of judicial power in one who by reason courts as it chooses, that there is nothing in the 14th Amendment Constitutional law-jury-right -effect of 14th Amendment. that requires a jury trial for any offender, that it may give such territorial jurisdiction to its courts as it sees fit, and therefore that there is nothing of his interest, both as an individual and as chief executive of the village, is disqualified to exercise it in the trial of the defendant. It is finally argued that the evidence shows clearly that the defendant was guilty and that he was only fined $100 which was the minimum amount, and therefore that he can not complain of a lack of due process, either in his conviction or in the amount of the judgment. The plea was not guilty and he was con victed. No matter what the evi Judges-disqualification dence was against him, he had the right of accused. right to have an impartial judge. He seasonably raised the objection and was entitled to halt the trial because of the disqualification of the judge which existed both because of his direct pecuniary interest in the outcome and because of his official motive to convict and to graduate the fine to help the financial needs of the village. There were thus presented at the outset both features of the disqualification. The judgment of the Supreme Court of Ohio must be reversed and the cause remanded for further proceedings not inconsistent with this opinion. Judgment reversed. ANNOTATION. Disqualification of judge or one acting in judicial capacity to preside in a case in which he has a pecuniary interest in the fine, penalty, or forfeiture imposed upon the defendant. [Judges, § 20.] As to residence or ownership of property in city or other political subdivision which is party to or interested in action as disqualification of judge, see annotation in 33 A.L.R. 1322 [Judges, § 20]; specifically as to proceedings involving fine or penalty, see 33 A.L.R. 1324. It is an ancient maxim applicable in all cases, civil or criminal, where judicial functions are to be exercised, whether in proceedings of inferior tribunals or in courts of last resort, that no man ought to be a judge in his own cause; this principle finds expression in the constitution of many of the states, and its strict observance is dictated by natural justice and public policy. 15 R. C. L. 527. In fact at an early date, the maxim that no man ought to be a judge in his own case was deemed by Coke to be a right so inflexible that an act of Parliament seeking to subvert it should be declared void. Thus where the letters patent of the College of Physicians. granted by Henry VIII. in 1531, confirmed and ratified by Parliament by the Stat. 14 & 15 Hen. VIII. chap. 8, and by the Stat. 1 Mary, chap. 9, prohibiting the practice of medicine within the city of London and surrounding territory by those not admitted to the college (with exceptions in favor of those holding degrees from Cambridge and Oxford Universities), imposed a penalty upon any who should presume to practise without having been admitted, one half of which should go to the Crown and the other half to the president and college and provided that four members of the collegethe censors-should be charged with the investigation of all who should practise the profession, and the punishment, by fines, amercements, and imprisonments, of those offending against the act, Lord Coke in Bonham's Case (1610) 8 Coke, 113b, 77 Eng. Reprint, 646 (the facts being set out in (1608) 8 Coke, 107a, 77 Eng. Reprint, 638) held (though this holding was in the nature of obiter): "The censors cannot be judges, ministers, and parties; judges to give sentence of judgment; ministers to make summons; and parties to have the moiety of the forfeiture, quia aliquis non debet esse Judex in propria causa, imo iniquum est aliquem suæ rei esse judicem; and one cannot be judge and attorney for any of the parties. Dyer, 3 Edw. VI. 65; 38 Edw. III. 15; 8 Hen. VI. 19b, 20a; 21 Edw. IV. 27a, etc. And it appears in our books, that in many cases the common law will control acts of Parliament, and sometimes adjudge them to be utterly void; for when an act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will control it, and adjudge such act to be void." On this holding Lord Ellesmere, Ob |