The facts are stated in the opinion Messrs. Carr, Carr, & Evans, and Spence, Beard, & Hayes, for appellants:

The report of the engineer must include no lands that will not be benefited.

Zinser v. Buena Vista County, 137 Iowa, 665, 114 N. W. 51.

Supervisor Vorhies was disqualified to act in determining the facts necessary to support the establishing of the district.

To permit an interested party to act as supervisor in passing upon the sufficiency of the plan, the public utility, and the relation between burden and benefits is a denial to other property owners within the proposed district, of due process of law.

Union Drainage Dist. v. Smith, 233 Ili. 417, 16 L.R.A. (N.S.) 292, 84 N. E.

376.

Messrs. Fuller & Fuller and Charles J. Lewis for appellees.

Salinger, J., delivered the opinion of the court:

I. The board of supervisors of Ringgold county consists of three members. The defendant Vorhies is one member. On the vote upon whether said drainage district should be established, one member of the board other than Vorhies voted "Aye," another member "No," and the defendant Vorhies voted "Aye." It is manifest then that the vote of Vorhies was decisive. The principal complaint of the appellant is that Vorhies was disqualified by interest, and that the court held him qualified so to act.

For the moment omitting reference to exceptions to the rule, had Mr. Vorhies acted as the judge of a court in doing any act which would substantially promote his pecuniary interest, he would have been disqualified. It would be sheer affectation to make an extensive citation of authorities for the proposition that one

Judge-right to judge own

may not be "judge in his own cause." But see Re Ryers, 72 N. Y. 1, 28 Am. Rep. 88. In Case v. Hoffman, 100 Wis. 314, 44

of the court.

L.R.A. 728, 72 N. W. 390, 74 N. W. 220, 75 N. W. 945, a supreme court decision was held void because one judge, who had tried the cause below before he became a member of the supreme court, cast the deciding vote. Indeed, courts have gone so far as to hold that an act of assembly which authorizes one to judge his own cause would be void, because such an enactment is a denial of due process of law. Union Drainage Dist. v. Smith, 233 Ill. 417, 16 L.R.A.(N.S.) 292, 84 N. E. 376; Day v. Savadge, Hobart, 85, 80 Eng. Reprint, 235; Cooley, Const. Lim. *175; Co. Litt. § 212.

I. (a). The rule is not challenged, but avoidances are attempted. One of these avoidances is that what Vorhies did was the performance of an administrative rather than a Drainagejudicial duty. Many districtdistinctions, resting duty. on such differences, may be found in the books.

establishment of administrative

A Wisconsin statute empowers political committees to determine what candidate shall have place on the official ballot. It was held in State ex rel. Cook v. Houser, 122 Wis. 534, 100 N. W. 971, that the members will not be disqualified because they were active partisans and prejudiced. And there is a line of cases which allows ministerial officers to act because the legislature contemplated that those empowered to act would be prejudiced. State ex rel. Cook v. Houser, supra, is one of those, and a leading case. To like effect is People ex rel. Shannon v. Magee, 55 App. Div. 195, 66 N. Y. Supp. 849; People ex rel. Samuel v. Cooper, 139 Ill. 461, 29 Ν. Ε. 882, and State ex rel. Starkweather v. Superior, 90 Wis. 612, 64 N. W. 304, other Wisconsin cases, and perhaps others. In the Starkweather Case a prejudicial council was permitted to remove the mayor. But as to all this there is a conflict in Wis

utmost difference there is between the cases where the statute does demand that the members shall be disinterested, and those in which there is no such express demand, is that, instead of the action of the board being void, it is but voidable. Carr v. Duhme, 167 Ind. 76, 78 N. E. 322, 10 Ann. Cas. 967, wherein are cited cases from Massachusetts, Michigan, Texas, and California. It is said in the case that, though the statute does not demand that a member be disinterested, "a proper sense of propriety should in all cases prevent a member from acting in any proceeding to which he is a party, but if, disregarding such disqualification in a matter over which the board has jurisdiction of the subject and the parties, he does participate in rendering a judgment from which an appeal is allowed, his act and the action of the board will not be void, but only voidable"-citing Carroll County v. Justice, 133 Ind. 89, 36 Am. St. Rep. 528, 30 N. E. 1085; Rogers v. Felker, 77 Ga. 46; Wilson v. Smith, 18 Ky. L. Rep. 927, 38 S. W. 870; State ex rel. Klotz v. Ross, 118 Mo. 23, 23 S. W. 196; Fowler v. Brooks, 64 N. H. 423, 10 Am. St. Rep. 425, 13 Atl. 417.

I. (c). Citations for appellees indicate reliance upon the fact that an appeal lies to the district court. But such appeal does -effect of right not afford a free review of the merits. Every reasonable presumption is indulged to support the action of the board (see Temple v. Hamilton County, 134 Iowa, 706, 112 N. W. 174; Denny v. Des Moines County, 143 Iowa, 466, 121 N. W. 1066; Prichard v. Woodbury County, 150 Iowa, 584, 129 N. W. 970; Re Ryers, 72 N. Y. 1, 28 Am. Rep. 88; Chicago, M. & St. P. R. Co. v. Monona County, 144 Iowa, 171, 176, 122 N. W. 820; Mittman v. Farmer, 162 Iowa, 364, 382, 142 N. W. 991, Ann. Cas. 1915C, 1) and it could well happen that the appellate court would be constrained to hold that it could not interfere on the merits (Denny v. Des Moines County, 143 Iowa, 466, 121

N. W. 1066) -in a case in which it happened to be the fact that there would have been no system established, and hence no occasion for appellate review of the establishment, had the members of the board not been personally interested. True it is that, where the appeal may be tried to a jury, unembarrassed by the decision appealed from, it has led the courts to hold that the members of the board were not disqualified. See Stewart v. Baltimore, 7 Md. 500; Scott v. People, 120 Ill. 129, 11 Ν. Ε. 408; People ex rel. Samuel v. Cooper, 139 Ill. 461, 29 Ν. Ε. 872.

I. (d). Eut these were distinguished in Vandalia Levee & Drainage Dist. v. Hutchins, 234 Ill. 31, 84 N. E. 715; and the later Illinois case of Union Drainage Dist. v. Smith, 233 Ill. 425, 16 L.R.A. (N.S.) 292, 84 N. E. 378, disposed of the right to appeal as an avoidance, by holding that, though there be a right to trial by jury, "still it is entirely clear that, in providing for a commission to determine the amount of money that shall be collected from each property owner, the law of the land forbids the enactment of a statute that permits the selection of a commissioner who personally has property interest in the result of the deliberations of the body of which he is a member." And it is held in Bradley v. Frankfort, 99 Ind. 417, that, though appeal lies, a person who is financially interested in the opening of a street, or who is a father-in-law to a person whose property will be affected by such opening, is incompetent to act as a commissioner in the assessment of the benefits and damages.

a

But if free review de novo were an avoidance, such review as is permitted in this jurisdiction does not cure the evil of interested action below. Appeal which is closely restricted, in which the merits are in effect not considered, in which it is almost conclusively presumed that the action below was right on the merits (see Maben v. Olson, Iowa, -, 175 N. W. 512), surely affords no reason for permitting an

interested party to decide the fact merits to his own tangible pecuniary advantage.

I. (e). Upon the fact that review of the action of the board is colored by treating such action as a legislative one, is builded the argument that the interest of the members cannot be considered. Public policy demands that even what is in strictness legislation shall be free from improper influence. See Wood v. McCann, 6 Dana, 366; Richardson v. Scott's Bluff County, 59 Neb. 400, 48 L.R.A. 294, 80 Am. St. Rep. 682, 81 N. W. 319, and the cases collected in Dodson v. McCurnin, 178 Iowa, 1216, L.R.A.1917E, 1084, 160 N. W. 927. Now, while it is true we may not set aside an act of the legislature because it is tainted with improper influences, the public policy which condemns such influence commands that we shall not amplify a mere rule of appellate review, which gives the act of the board the aspect of a legislative act for the purpose of review on the merits, into a rule that we cannot interfere with the establishment of a drainage district on the ground that -legislative act the board member who cast the deciding vote was unduly influenced. When it comes to that, the action of the board is not beyond our power, as is an act of assembly.

-effect.

II. Will any or all of these avoidances serve here? Assume that Mr. Vorhies would not be disqualified if his interest were not tangible and pecuniarily substantial; assume that the mere interest of the members of a political committee in the steps that may tend to promote the election of the candidate of their choice will not disqualify them; assume that the interests and prejudices of members of a city council will not disqualify them from acting tribunal which considers whether or not a city officer shall be removed from office-and yet the case before us is not decided. None or all of these things involve the deciding by a member of the board of supervisors of matters which will

on

a

take substantial benefits from the member if the decision be one way, and will give such benefits to him if it be the other way. It is conceded that Vorhies owned approximately one hundred (100) acres of land within the proposed district. He testified that when there were floods all the bottom land in his 100 acres would overflow 100 rods wide, and that probably 40 acres west and south, and about the same amount of land on the east, were at such times subject to overflow. It appears that all of his land in the district is subject to overflow, so is all his land to the west, and there is very little to the east that is not. He believed that, if saved from overfiow, his said land would be the most productive of any owned by him. He was very active in the canvass for the petition. Before he voted he was informed by the engineer what lands would be included. He thought the ditch would double the value of the lands lying within the district. He remarked to Hoover that the establishment was worth $10,000 to him. He finally cast the vote that established the district.

II. (a), We held in Temple v. Hamilton County, 134 Iowa, 706, 112 N. W. 174, that establishment involved the question whether the district, or a large part thereof, will be benefited in some degree; that while there will be tracts benefited more largely than others, and, while some will receive no very perceptible benefit, "all these things are subject to adjustment when the board shall come finally to pass upon the classification of the land and the assessment of the costs of the improvement upon the property within the district. All matters of alleged unequal or improper assessment will then be considered, and the board is authorized upon such hearing to increase, decrease, annul, or affirm the apportionment made by the commissioners." This makes clear that in the first instance the board is given the power to determine the following questions of fact: (1) Whether public utility and general welfare will be benefited by the establishment; (2) the practicability and feasibility of the plan proposed; (3) whether the benefit to the lands is sumcient to warrant the taxation necessary to pay the costs; (4) how land shall be classified, and so lay the foundation for damages to be paid and for taxation to be raised according to benefits received. Included, of necessity, is the power to fix the limits of the district. Mr. Vorhies cast the deciding vote upon all these questions. He decided against others in disagreement with him that the system should be established. First, he decided who should be appointed engineer, and so who was to be one member of the body appointed by the auditor to pass upon damages and benefits. Second, he decided that the action of the body of which said engineer was a member should be approved. Without his vote, none of these questions could have been decided. Without his vote there would be no drainage system established. With out his vote its boundaries could not have included his lands. His vote, then, under the evidence, made him $10,000 richer than he would have been had he not cast that vote.

-interest of

district.

III. So far, we have in a way assumed that judges alone were disqualified by interest. At any rate, no great stress has been laid upon how interest might affect acts that are not in strictness judicial acts. But an interest less owner of land in than Mr. Vorhies had has set aside action in substance like his. See Bradley v. Frankfort, 99 Ind. 420; Re Main Street, 137 Pa. 590, 20 Atl. 711; Betts v. Naperville, 214 Ill. 380, 73 N. E. 753; Chase v. Evanston, 172 Ill. 403, 50 N. E. 241; Shreve v. Cicero, 129 Ill. 226, 21 N. Ε. 815.

As to judges, it has been held that a decision was void upon which one who had been of counsel, or tried the cause at nisi prius, or was in interest, gave the casting vote. Case v. Hoffman, 100 Wis. 314, 44 L.R.A. 728, 72 N. W. 390, 74 N. W. 220, 75

N. W. 945; Oakley v. Aspinwall, 3 N. Y. 547; Converse v. McArthur, 17 Barb. 410; Reg. v. Justices, 6 Q. B. 753, 115 Eng. Reprint, 284, 1 New Sess. Cas. 490, 14 L. J. Mag. Cas. N. S. 73, 9 Jur. 424, 18 Q. B. 416, 118 Eng. Reprint, 156; People v. Bork, 96 N. Y. 188. The same rule has, however, been applied to acts that are not the act of a judge. In Hunt v. Chicago, 60 Ill. at 184, the report and application by the commissioners for a new assessment was made by only two commissioners, one of whom was McArthur, and it was said that if McArthur was disqualified by reason of special interest, then the report should have been regarded as made by one commissioner alone, and the ordinance based upon it should be held void.

III. (a). In Illinois, where earlier cases attached importance to the fact that it was customary (and therefore permissible) for boards, say, to audit the accounts of the members, we find the case of Union Drainage Dist. v. Smith, 233 III. 417, 16 L.R.A. (N.S.) 292, 84 Ν. Ε. 376. Therein it was held that selecting one who owns lands within a district, to make an assessment of the benefits accruing from the improvement by a drainage ditch, deprives other property owners of due process of law. It seems to us this Illinois case and the one before us are identical, except for the immaterial differentiation that the Illinois case deals with the qualifications of a commissioner appointed to apportion assessments, and that Vorhies acted as a member of a board of supervisors. Indeed, it would seem that such difference militates against the order before us, because, while the officer dealt with in the Illinois case was merely a commissioner to apportion assessments, Vorhies cast the deciding vote on finding the essential facts upon which assessment on part of anyone could be predicated, and that he, in effect, established the improvement. The said Illinois decision is approved in the Vandalia