servations on Reports, p. 21, as quoted in Fraser's note to the report of Bonham's Case, makes this comment: "And for novelty in Bonham's Case, the Chief Justice, having no precedent for him, but many judgments against him, yet doth he strike in sunder the bars of government of the College of Physicians; and, without any pausing on the matter, frustrate the patent of King Henry VIII. whereby the College was erected, and tramples upon the Act of Parliament, 14 & 15 Hen. VIII., whereby that patent was confirmed, blowing them both away as vain, and of no value, and this is in triumph of himself being accompanied but with the opinion of one judge only for the matter in law where three other judges were against him, which case possesseth a better room in the press than is deserved." But it is further pointed out in the note that the ruling that a statute against reason was void was supported by many authorities then, and by others before and since; and that in the report of the case in 2 Brownl. & G. 255, 123 Eng. Reprint, 928, Coke's Report is confirmed, though the latter reported only the effect of the arguments of the justices who were of the opinion against the plaintiff, although it is said that it is true that, in some parts of the argument, there are some things that savor of the pedantry and quaintness peculiar to the time, but nothing to impeach that part of it; and that, as above observed, Coke's opinion, to that part at least, is confirmed by many authorities before that case. And the Coke ruling is approved in London v. Wood (1702) 12 Mod. 669, 88 Eng. Reprint, 1592, where Holt, Ch. J., says: "What my Lord Coke says in Bonham's Case (1610) in his 8 Coke, 113 b, 77 Eng. Reprint, 646, is far from any extravagancy, for it is a very reasonable and true saying that, if an act of Parliament should ordain that the same person should be party and judge, or, which is the same thing, judge in his own cause, it would be a void act of Parliament; for it is impossible that one should be judge and party, for the judge is to determine between party and party, or between

the government and the party." But, see Cooley, Const. Lim. 7th ed. 592, note.

In Hesketh v. Braddock (1766) 3 Burr. 14, 97 Eng. Reprint, 1130, where the question before the court was of the disqualification of the jurors on account of interest, it was argued that in London v. Wood (Eng.) supra, the objection to the mayor sitting as judge in a cause of the corporation was not so much in point of interest as inconsistency. But Lord Mansfield, answering this argument, said: "But is not the interest a great ingredient in that inconsistency? And hence comes the rule that no man shall be judge in his own case.' And the same rule was equally applied to a juror."

Previous to the decision in Bonham's Case (Eng.) supra, it was adjudged in Day v. Savadge (1605) Hobart, 85, 80 Eng. Reprint, 235, that the fact of a custom of the city of London to distrain goods of freemen for nonpayment of wharfage should be tried by a jury, and not by certificate of the mayor and aldermen of the city, for it was against right and justice and natural equity to allow them their certificate wherein they are to try and judge their own cause; and in conclusion the court said: "By that which hath been said it appears that, though in pleading it were confessed that the custom of certificate of the customs of London is confirmed by Parliament, yet it made no change in this case, both because it is none of the customs intended, and because even an act of Parliament, made against natural equity, as to make a· man judge in his own case, is void in itself, for jura naturæ sunt immutabilia, and they are leges legum."

And in Great Charte v. Kennington (1742) 2 Strange, 1173, 93 Eng. Reprint, 1107, two justices of the peace made an order of removal, which was quashed because one of the justices was an inhabitant of the parish from which the pauper was removed, and was charged and chargeable and paid the poor's rate; it was insisted that the Statute of 13 & 14 Car. II. chap. 12, gave the power to any two justices of the peace, and that such had been the

practice; but the court held "that this was a judicial act, and the party interested is tacitly excepted. They said the practice could not overturn so fundamental a rule of justice as that a party interested could not be a judge." And this seems to have been remedied by the Act of 16 Geo. II. chap. 18.

From the above decisions, it is apparent that the earlier English courts would not have allowed a judge to preside in a case where his compensation depended on a judgment imposing a fine or penalty upon the defendant, though he might have been directed to sit in the case by an act of Parliament. There was, as stated in the reported case (TUMEY V. OHIO, ante, 1243), the greatest sensitiveness over the existence of any pecuniary interest, however small, in a judicial officer; however, an express denial of Coke's principle is made by Willes, J., in Lee v. Bude & T. Junction R. Co. (1871) L. R. 6 C. P. (Eng.) 576. "I would observe," he says, "as to these acts of Parliament, that they are the law of this land; and we do not sit here as a court of appeal from Parliament. It was once said-I think in Hobart (Day v. Savadge, supra),—that, if an act of Parliament were to create a man judge in his own case, the court might disregard it. That dictum, however, stands as a warning, rather than an authority to be followed. We sit here as servants of the Queen and the legislature. Are we to act as regents over what is done by Parliament with the consent of Queen, lords, and com· mons? I deny that any such authority exists. . . The proceedings here are judicial, not autocratic, which they would be if we could make laws instead of administering them." And see article entitled "Boham's Case and Judicial Review," 40 Harvard L. Rev. 30, which traces the history of the crigin, growth, and decline of Coke's principle.

In America the practice has prevailed in some states in times past (and prevails to-day in the eight states enumerated in the TUMEY CASE), of allowing judges in minor cases, particularly justices of the

peace, no compensation except by fees collected of convicted defendants, in face of the maxim that no man shall be judge in his own case. This practice has been rarely questioned,-probably because of the insignificance of the amounts involved in cases falling within the jurisdiction of such officers, -though it certainly cannot be justified.

The reported case (TUMEY v. OHIO) raises directly, for the first time, the question of the constitutionality of a practice which authorizes trial before one whose compensation for hearing the case depends upon a conviction being secured; and it is held that one accused of violating liquor laws is unconstitutionally deprived of due process of law by being subjected to trial before a mayor the sole source of whose costs for hearing the case will be the fine imposed upon accused, unless the costs are so small that they may properly be ignored as within the maxim "de minimis non curat lex;" and that the possibility of receiving $12 as costs for the conviction before the mayor, whose emoluments from such source amount to more than $100 a month additional to his salary, is not an injury so minute, remote, trifling, or insignificant as to fall within this maxim.

In accord with this ruling, the New Jersey court in State, Winans, Prosecutor, v. Crane (1873) 36 N. J. L. 394, said in effect that the maxim of the law, that no man can be a judge in his own case, was so elementary and fundamental in English jurisprudence that it could not be materially invaded by the legislature any more than the legislature could pass an act that a judge might decide according to lot, or for the party who should give him the most money; and in the TUMEY CASE the United States Supreme Court holds that any system by which an inferior judge is paid for his services only when he convicts the defendant has not become so embedded by custom that it can be regarded as due process of law.

In Cooley on Constitutional Limitations, 7th ed. 593, 594, it is said that, except in cases where the interest is

as well as legal, duty, that it was not necessary to say that it was not authorized by the legislation complained. of, and, therefore, afforded no ground for declaring it invalid.

In Georgia, although the Code expressly prohibits any judge, justice of the peace, or presiding officer of any inferior judicature or commission, from sitting in any cause or proceeding in which he is pecuniarily interested, it has been held that the judge of a city court is not disqualified from presiding in criminal cases and cases of bond forfeitures, although, as ex officio clerk of the court, he is individually pecuniarily interested in the costs of the case, which can be obtained only upon judgment of conviction or forfeiture, since to construe the pecuniary interest in a cause to extend to pecuniary interest in the costs of the cause would destroy the effect of the act creating the court, as, in event of disqualification, there would be no one to sit; and such cannot be held contrary to the public policy of the state or unconstitutional. Wellmaker v. Terrell (1907) 3 Ga. App. 791, 60 S. E. 464. This case was followed without discussion in Pace V. Hazlehurst (1911) 9 Ga. App. 203, 70 S. E. 967, and Langston v. Hazlehurst (1911) 9 Ga. App. 449, 71 S. E. 592. The court in the Terrell Case frankly admitted that the separation of the costs from the case itself was purely arbitrary and of doubtful propriety, and expressed personal disapproval of the scheme, but said that it was not only not opposed to the policy of the state, but in accord with it, as, from the earliest time, the policy had been to pay numerous judicial officers by assigning them the fees usually denominated costs in lieu of any fixed salary, and in various instances the same contingency as to the collection of costs might arise as in the present case.

In Bennett v. State (1878) 4 Tex. App. 72, defendant appealed from a conviction in the county court, on the ground that the county judge was disqualified from trying the cause, under § 11 of article 5 of the state Constitution, providing that "no judge shall sit in any cause wherein he may be in

terested," in that he received a fee only upon conviction. No question was raised as to rights under the Federal Constitution, and it was held that the judge was not disqualified, as the Constitution, § 15 of article 5, itself provided that the compensation of county judges should be "such fees and perquisites as may be prescribed by law," and the statutes allowed him a fee only upon conviction.

It has been held that the mayor of a city who receives a monthly salary payable from the salary fund of the municipality is not as ex officio city judge disqualified by interest to preside over misdemeanor cases, though the city charter provides that all fines collected shall be paid by the city judge into the city treasury and placed to the credit of the salary fund. Re Guerrero (1886) 69 Cal. 88, 10 Pac. 261. The court said it was difficult to see how this made the judge personally or pecuniarily interested in the criminal action for violating an ordinance, so as to incapacitate him from trying it, and enforcing conviction by collection of fine or by imprisonment.

It was said in Ex parte State Bar Asso. (1891) 92 Ala. 113, 12 L.R.A. 134, 8 So. 768, that, "where the salary of a judge is payable out of a fund arising from the imposition of fines, as is the case with the judges of some of the city courts in this state, his interest is too remote to disqualify him to sit in a cause which may involve the imposition of a fine to be thus appropriated." Re Guerrero (Cal.) supra, was cited in support of this proposition. The statement, however, is dictum; the question before the court was whether membership in a state bar association disqualified a judge to hear a proceeding brought by it for disbarment of an attorney, by reason of the fact that the association would be liable for costs if defeated in the proceeding; and it was held that he was not disqualified, as the amount of his liability for fees would not be affected by the rendition of the judgment, and his interest as a member in the property of the association upon possible dissolution was entirely too remote and speculative.

And it was held in Tupper v. Murphy (1882) 15 N. S. 173, that a stipendiary magistrate was disqualified from acting in a misdemeanor case where he received a fixed salary payable from the fund made up of penalties and fines imposed in the magistrate's court.

In Reg. v. Hart (1887) 2 B. C. 264, it was held that a police magistrate appointed by a municipal corporation is not incapacitated or disqualified by reason of interest, because he holds another office under the corporation, the salary of which is drawn from the consolidated municipal fund into which fines imposed by him as police magistrate are paid. The court pointed out that most funds coming from fines, penalties, and forfeitures are paid into a fund from which the judges' salaries are charged, and yet it could not be argued that the judges were thereby disqualified; and that the fallacy lay in assuming that the retention of fines by the municipal corporation was the same as if they were actually payable to the magistrate; although it was said that, if the corporation should ever make the salary of a police magistrate depend upon the amount of the fines recovered, the superior courts would know how to deal with the case, implying that such ordinance would undoubtedly be void. To the same effect, see Reg. v. Fleming (1895) 27 Ont. Rep. 122.

Likewise, in Ex parte McCoy (1896) 33 N. B. 605, on a motion to quash a liquor conviction by a police magistrate, it was argued that the magistrate was disqualified to act on the ground of pecuniary interest, appearing that, in addition to his regular salary, the city council had voted to appropriate the sum of $100 for his services in connection with the enforcement of the temperance act to be paid from a fund created by the imposition of fines for the violations of the act, but the court said that there was nothing in the point.

By 419a of the Ontario Consolidated Municipal Act of 1892, it is provided that a magistrate is not disqualified to act where, in case of convic

tion, the fine or penalty or part thereof goes to the municipality in which he is a ratepayer; and in Reg. v. Fleming (Ont.) supra, the court said that, even in the absence of statute, a magistrate in such case would not be disqualified at common law.

And as stated in the reported case (TUMEY V. OHIO, ante, 1243) the supreme court of Ohio held in Probasco v. Raine (1893) 50 Ohio St. 378, 34 N. E. 536, that the legislature might within constitutional limits allow county auditors a fee of 4 per cent for placing omitted property on the duplicate list for taxation, although the duties thus imposed upon the auditors required investigation from quasi judicial considerations; the court said that the objection urged that a man cannot be a judge in his own case was a fallacy, as the auditor had no case to be adjudged, but on the contrary was a taxing officer before whom parties were cited to appear and show cause why they should not bear equal burdens of taxation, and, as his actions in the premises were subject to review, process of law was had. It was said, too, that the rule insisted upon as to the interest of the auditor would disqualify every member of the court before whom the hearing was had from sitting as a judge in the decision of the case, by reason of their interest as resident taxpayers. But the Federal circuit court in Meyers v. Shields (1894; C. C.) 61 Fed. 713, notwithstanding the decision in the Raine Case, held that, as the statute vested the auditor with power to proceed in a quasi judicial character, and gave him compensation only in event of discovery of property omitted from the taxpayer's return, proceedings authorized when conducted by the auditor would result in depriving a citizen of his property without due process of law, and are invalid under the 14th Amendment to the Federal Constitution; although, if the auditor were merely finding a tax due the amount of which was fixed by statute, and involving no judicial function, his interest in the fee would not disqualify him. The court says: "The object of all legislation pertaining to judicial or quasi judicial