Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1881-10-06

ESPECIAL By TELEGRAPH TO THE REC0RD-USICN.l
SAN Francisco, October 5th.-Au action
was commenced in the District Court of Yuba
county in September, 1879, by tie city of
MarysvilIe against the North Bloomfield
Gravel Mining Company and numerous
other mining corporations and individuals to
enjein the defendants from depositing tail
ings and debris from their respective mining
claims in the channel of Yuba river or its
tributaries, or from permitting said tailings
and debris to flow therein, or from otherwise
polluting the water of the river or its tribu-
taries. Judge Philip W. Keyser pre-
sided in the then District Court.
The North Bloomfield Company filed
demurrers to the complaint, and moved for a
change of venue, on the ground, among other
things, that the presiding Judge was directly
interested in the result of the action because
he owned land in Yuba City, bordering on
Feather river, which is directly opposite the
land described in the action of the city of
Marysville. On May 21st, after argument,
the motion for change of venue was denied,
the Judge being of opinion that he was not
disqualified. The petitioners and others APP
piled for writ of prohibition. to prevent
Judge Keyser from acting. Justice Ross
says IN his opinion: st is an ancient
maxim, and one founded en- the most obvious
principles of natural right, that 10 man
ought to be judge in his own cause. That
principle finds expression in our statute in
these words: No Justice, Judge or Justice
OF the Peace shall sit or act in any action or
proceeding to which be is party OF in which
he is Interested This provision should net
receive a technical or strict construction, hut
rather one that is broad and liberal. The
Court ought to be astute enough TO discover )
said the Supreme Court of Michigan, the
refined and subtle distinctions TO save a case
from the operation of the maxim when the
principle it emboaies bespeak5 the propriety
Of its application. We cannot regard Judge
Keyser's interest as indirect or remote upon
the facts as presented. THE city of Marys-
vile says in its complaint that defendants are
causing the property of the city and that OF
It's Inhabitants great and irreparable
damage by sending down the Yuba
river vast quantities of tailings from
these mines, thus poliuting the waters of the
river, filling up its channel, OVERT wing the
adjacent lands, and depositing debris on
lands of the city, and otherwise iniuring it
and its people. The defendants say in their
those of the city, and similarly situated that
in precisely the same manner, and TO the same
extent, as the tailings sent down the Y abs
river by them ipjure the lands of the city of
Marysville and its Inhabitants, they injure
tie lands of respondent. If the relief prayed
for is awarded, the same judgment that
stops the flow of tailinPs and debris
on the lands of the city of Marysville steps
its flow on the lands of respondent. The
very judgment that will protect Marysviile
will protect him. His interest is a direct and
immediate one on the result of the action.
We are therefore of the opinion that respond
ent is disqualified to sit in Judgment in the
case. It is hardly necessary to say that the
merits of the controversy between the city of
Marys7ille and the miners are in no wise in
volved in the present proceedings. Let the
demurrer to the petition be oveIruled, with
leave to respondent to answer within ten
days from the entry of the order"
Justice Ross delivered the opinion. Chief
Justice Morrison concurs with Justice Sharp
stein in a concurring opinion. Justice Myrick
concurs in the order overIuling the demurrer,
for the reasons stated by Justice Ross, but
wishes 'to be distinctly understood as not
expressing directly or indirectly, view that
this will effect any injunction issued by the
Court below, or an order granting the same.
My concurrence is to the extent of prohibit
ing Judge Keyser from sitting further in the
case if no answer shall be made denying his
alleged disqualification.
Justice Thornton dissents, holding that
writ Of prohibition is not the proper remedy,
but agrees in the opinion of the majority that
Judge keyser is disqualified.
Justice Mckee concurs il the dissenting
opinion,