lowed to intervene in the cause. The San Diego Water Company had instituted a similar suit against these defendants, and the actions were consolidated.

Before the trial there was presented a motion for a change of venue, upon the ground of the disqualification of Judge Torrance, in whose department the action was pending. Grounds identical with those urged as disqualifying Judge Torrance were asserted to exist in the case of the other judges of the superior court of the county.

The affidavits used at the hearing show that the judge was the owner of real property situated and taxed in the city of San Diego for municipal purposes, and taxable for the payment of a 104 bonded indebtedness such as that the validity of which is a question in the case. It also was made to appear that the issuance of the bonds in controversy and the carrying out of the contract between the city and the defendant water company would necessitate a special tax for forty years and directly affect the value of all real property subject to it. Upon the other hand, a determination that the contract and proceedings were illegal would result in a decree enjoining the issuance of the bonds, and relieve all property within the municipality from the burden of the bond redemption tax.

The trial judge concluded that he was not disqualified, refused to grant the motion, and retained the action.

From this ruling and order the San Diego Water Company and certain intervenors prosecute their appeals.

By section 170 of the Code of Civil Procedure it is provided that no justice, judge, or justice of the peace shall sit or act in any action or proceeding to which he is a party, or in which he is interested. This is but an expression of the ancient maxim that no man ought to be a judge in his own cause, a maxim which appeals with such force to one's sense of justice that it is said by Lord Coke to be a natural right so inflexible that an act of parliament seeking to subvert it would be declared void: Coke on Littleton, sec. 212. It is a principle which finds expression in the constitutions of many of our states which declare the right of a citizen to be tried by judges as free and impartial as the lot of humanity will permit. It is a principle whose strict observance is dictated both by natural justice and an enlightened public policy. For it is not enough that a judicial decision be sound. It is of next importance that the tribunal rendering it to be free from the charge of interest or the taint

of partiality, else public confidence will be destroyed and judicial usefulness gravely impaired.

But what is the interest which will disqualify? For it is manifest that just bounds must be set to the meaning of the word, since, if a judge be not disqualified, it is as much his duty to retain the action as it is to remove it when the recusation is well founded: Heinlen v. Heilbron, 97 Cal. 101.

In the oft-quoted case of Hesketh v. Braddock, 3 Burr. 1856, the interest imputed to the jurors, and to the officer who returned them, rested upon the fact that they were members of 105 the municipal corporation which was seeking to recover a penalty due. The whole penalty was but five pounds, yet the proceeding was quashed by the court of king's bench, Lord Mansfield saying: "The law has so watchful an eye to the pure and unbiased administration of justice that it will never trust the passions of mankind in the decisions of any matter of right. There is no principle in the law more settled than this, that any degree, even the smallest degree, of interest in the question depending, is a decisive objection to a witness, and much more so to a juror, or to the officer by whom the juror is returned. If, therefore, the sheriff, a juror, or a witness be in any sort interested in the matter to be tried, the law considers him as under an influence which may warp his integrity or pervert his judgment, and therefore will not trust him. The minuteness of the interest wont relax the objection, for the degrees cannot be measured. No line can be drawn but that of a total exclusion of all degrees whatsoever." But this, it should be noted, is rather a declaration of the principle than a definition of the disqualifying interest, and while in terms this case does not include the judge as coming within the principle of disqualification, it is not to be doubted that it applies with equal strength, and with more reason, to such an officer: Dimes v. Grand Junction Canal Co., 16 Eng. L. & Eq. 63. The disability of a witness to testify because of interest induced great hardship and led to many absurdities. Thus, one was not debarred from being a witness if it was determined that his interest was equally balanced, nor was the heir apparent to an estate incompetent to testify in support of the claim of his ancestor, though his expectation of inheriting might be immediate and well nigh certain. Again, the interest of a parent in a child, or of the child in the parent, was not a disqualifying interest, but only such as to affect the credibility of the witness. The injustice and hardship of the rules as to witnesses soon became so appar

ent that by statute it was entirely abrogated, and now no interest disqualifies a witness, its sole effect being to impair his credit. In the case of jurors, however, who are judges of the fact, and of the magistrates, judges, and justices who are judges of the law, and frequently both of the law and facts, there has been far less relaxation of the principle, and this, if for no other reason, because the courts themselves, in their desire to preserve the 160 administration of justice free from the taint of unfairness, have inclined to a strict enforcement of the principle, and also because there are well-defined limits to the power of the legislature, should it ever seek to overthrow so salutary a rule.

Thus, in North Bloomfield etc. Co. v. Keyser, 58 Cal. 315, this court, citing section 170 of the Code of Civil Procedure, declares that the provision should not receive a technical or strict construction, but rather one that is broad and liberal, and quotes with approval the language of the supreme court of Michigan in Stockwell v. Township Board, 22 Mich. 350, to the following effect: "The court ought not to be astute to discover refined and subtle distinctions to save a case from the operation of the maxim, when the principle embodied bespeaks the propriety of its application. The immediate rights of the litigants are not the only objects of the rule. A sound public policy, which is interested in preserving every tribunal appointed by law from discredit, imperiously demands its observance." And in Heilbron v. Campbell (Cal., Dec. 28, 1889), 23 Pac. Rep. 122, it is said again by this court: "It should be the duty and desire of every judge to avoid the very appearance of bias, prejudice, or partiality, and to this end he should decline to sit. . . . in any case in which his interest in the subject matter of the action is such as would naturally influence him either one way or the other.

Upon the latter proposition, that of the power of the legisla ture to modify or abrogate the rule, statutes have been passed and upheld by the courts which remove the disqualification of jurors and of judges who are merely corporators of a municipal corporation and taxpayers therein, which corporation is a party interested. These statutes have been countenanced by the courts upon the ground that the interest of the juror or judge 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 the individual. It is to be remem bered, however, that they are in derogation of the commonlaw rule, and it will always be a judicial question, as to any par

ticular statute, whether or not by its terms or in its effect it violates this fundamental principle of judicial decision. Thus Judge Cooley: "But, except in cases resting upon such reasons, we do not see how the legislature can have any power to abolish 107 a maxim which is among the fundamentals of judicial authority. The people of the state, when framing their constitution, may possibly establish so great an anomaly, if they see fit; but, if the legislature is intrusted with apportioning and providing for the exercise of the judicial power, we cannot understand it to be authorized in the execution of this trust to do that which has never been recognized as being within the province of the judicial authority": Cooley's Constitutional Limitations, 6th ed., 508. The only other exception to the operation of the maxim is that which arises in the nature of the government of the state, and has its existence in absolute. necessity. Thus, to illustrate, where the legality of a bonded indebtedness of the state comes before its tribunals, they must act, or the right remain forever without the possibility of its enforcement. In such cases, however, the judges are as fair and impartial as the lot of humanity doth permit, and trial before such is all that the constitution, or Lord Coke's jus naturae, can preserve to any man.

It has been pointed out that in most of the states the common-law rule disqualifying a juror for interest by reason of the fact that he is a corporator of the city or town which is a party to the suit has been changed by statute, and that these statutes have been upheld by the courts upon the ground of the remoteness and contingency of the interest. In our own state, section 602 of the Code of Civil Procedure declares the grounds upon which challenges for cause may be taken, and subdivision 5 provides as a ground of challenge "interest on the part of the juror in the event of the action, or in the main question involved in the action, except his interest as a member or citizen of a municipal corporation." Nothing herein expressly removes the disqualification of the judge, which alike with that of the juror existed at common law. But, if the interest of a juror so situated is too remote to disqualify him as a trier of fact, equally, it may be argued, would a like interest be insufficient to disqualify a judge, and thus without express statutory enactment upon the question, the conduct of judges in trying actions where the sole ground of their disqualification is the fact that they are corporators and taxpayers of the municipal corporation which is a party thereto, has always been

countenanced and upheld. Yet here it may be remarked that the state is not without some statutory 108 enactments upon the question. Many may be found conferring upon municipal courts and the judges therein jurisdiction of petty offenses for the violation of ordinances and for the collection of revenues under such ordinances. It has never been, and at this day may not be, seriously questioned that a judge of such municipal court is not disqualified by reason of interest merely because of the fact that he is a member and taxpayer of the municipal corporation, either in civil cases where its ordinances are under consideration, or in criminal cases where the penalties, fines, and forfeitures for the violation of such ordinances accrue to the municipal treasury.

In a very great number of the cases which have come under review in the consideration of this question nearly all have to do with the interest of the judge or juror as a member of such public corporation, and in these, where the ancient rule has not been modified by statute, that rule is for the most part observed in all its strictness. Of these cases there may be cited as instructive upon the question: State v. Stuart, 23 Me. 111; State v. Woodward, 34 Me. 293; Commonwealth v. Ryan, 5 Mass. 90; Pearce v. Atwood, 13 Mass. 324; Trustees v. Bailey, 10 Fla. 238: Moses v. Julian, 45 N. H. 52; 84 Am. Dec. 114; Northampton v. Smith, 11 Met. 390; Foreman v. Marianna, 43 Ark. 324; Peck v. Essex, 21 N. J. L. 656; Sauls v. Freeman, 24 Fla. 209; 12 Am. St. Rep. 190; Commonwealth v. Reed, 1 Gray, 472; Ellis v. Smith, 42 Ala. 349; Fine v. St. Louis Public Schools, 30 Mo. 166; Stockwell v. Township Board, 22 Mich. 350; Fiske v. Paine, 18 R. I. 632; Dimes v. Grand Junction Canal Co., 18 Eng. L. & Eq. 63; Oakley v. Aspinwall, 3 N. Y. 547.

In Northampton v. Smith, 11 Met. 390, Chief Justice Shaw, with his usual clearness, has defined this disqualifying interest. He says: "1. We think it is not to be a mere possible, contingent interest, not an interest in the question or general subject to which the matter requiring adjudication relates, but one that is visible, demonstrable, and capable of precise proof. . . . . It must, therefore, depend upon facts capable of being precisely averred and proved, and thus put in issue and tried. 2. It must be a pecuniary or proprietary interest, a relation by which as debtor or creditor, an heir or legatee, or otherwise, he will gain or lose something by the result of the proceedings, in contradistinction to an interest of feeling or sympathy or bias which 109 would disqualify a juror." (It may be here re