The majority holds that the jurors called to try the Okanogan county case were not disqualified, one of the reasons being that the statute, Rem. Rev. Stat., § 11608 [P.C. § 4498-14], states that a public utility district is a municipal corporation.
The majority opinion states that there is a theoretical difference between the citizens living in the district who will not be users of electricity and those who will use it. To my mind, there is a very substantial difference. It is a difference measured in dollars and cents. The nonusers would not be interested in the cost of the utility, because they would not be called upon to repay that cost; while the users are vitally interested, because the rates they will have to pay will be determined, first, by the original cost, which would be reflected in the judgment obtained by the company for its property, and, second, in the cost necessary to maintain the utility.
Public utility districts are not municipal corporations serving a public purpose; they are public corporations engaged in a private business for the profit or benefit of the users of their product.
Rem. Rev. Stat., § 11611 [P.C. § 4498-17], provides that public utility district commissioners shall provide for condemnation and purchase by resolutions, which resolutions shall specify and adopt the system or plan proposed. In compliance with the provisions of this statute, Public Utility District No. 1 of Okanogan county, December 21, 1939, passed a resolution, one section of which reads, in part, as follows:
"In order to carry out the plan or system herein specified and adopted, the District shall issue and sell its revenue bonds in an amount not exceeding $2,000,000." *Page 403
Another portion of the resolution provides for the final payment of the bonds within thirty years. Still another section of the resolution provided:
"The District further binds itself to establish and maintain rates or charges for the electricity generated, transmitted and distributed by means of the public utility system herein established including all works, plants and facilities to be acquired or constructed as provided herein, and all additions and betterments to and extensions thereof which hereafter may be purchased, condemned or constructed, as will provide sufficient revenues to permit the payment of said sums into such special fund which the District has pledged to set aside for the payment of principal and interest and for the Reserve Account as herein provided, to be applied to the payment of the principal and interest of the bonds herein authorized until such bonds and interest shall have been paid in full, and in addition thereto, all costs of operation and maintenance."
The users of electric energy, by being charged for service, are the ones who are now taxed in order to secure the moneys necessary to pay running expenses and the cost of paying the bonds provided for in the resolution. Under present conditions, the average charge to consumers of electric energy in Okanogan county is $38.20, and it will, under present plans, take thirty years to redeem the bonds. It may very well be that the cost of service will increase through the years. These users have a definite financial interest in the original purchase price, for the reason that, the more they have to pay, the higher the charge for service; the lower the price of the utility, the lower the rate. This conclusion is inescapable, in view of the provisions of the statute and the contents of the resolution just quoted.
"The right of trial by jury shall remain inviolate, . . ." Art. I, § 21, constitution of the state of Washington.
"Bias is that which sways the mind toward one opinion rather than another." Olive v. State, 11 Neb. 1, 7 N.W. 444, 450.
"Implied" means "virtually involved or included; involved in substance; inferential; tacitly conceded." Webster's *Page 404 New International Dictionary (2d ed.). "Implied," as it is used in law, is contrasted with "express" or "actual." The law implies or includes a bias in situations in which the juror is placed in a position where his interest must necessarily be assumed or inferred.
This court has not interpreted Rem. Rev. Stat., § 330 [P.C. § 8495], by ascertaining the meaning of implied bias, nor are there many cases in the reports dealing with the subject.
"No one ought to be a judge in his own cause; and so inflexible and so manifestly just is this rule, that Lord Coke has laid it down that `even an act of Parliament made against natural equity, as to make a man a judge in his own case, is void in itself; forjura naturae sunt immutabilia, and they are leges legum.'
"This maxim applies in all cases where judicial functions are to be exercised, and excludes all who are interested, however remotely, from taking part in their exercise. It is not left to the discretion of a judge, or to his sense of decency, to decide whether he shall act or not; all his powers are subject to this absolute limitation; and when his own rights are in question, he has no authority to determine the cause. Nor is it essential that the judge be a party named in the record; if the suit is brought or defended in his interest, or if he is a corporator in a corporation which is a party, or which will be benefited or damnified by the judgment, he is equally excluded as if he were the party named." Cooley's Constitutional Limitations (8th ed.), vol. 2, page 870.
In Murchison Nat. Bank v. Dunn Oil Mills Co., 150 N.C. 683,64 S.E. 883, a juror was a stockholder in the plaintiff corporation. In passing upon the juror's qualification, the court said:
"The defendants, having exhausted their peremptory challenges, objected to a juror, Samuel Bear, who admitted that he is a stockholder in the plaintiff bank. The court, upon evidence, found that, notwithstanding the fact of his being a stockholder, he was `a fair and unbiased juror,' and overruled the challenge. In this ruling, we think, there was error. It is very true, the cause of challenge is not one *Page 405 of those specified in the statute, but they are merely cumulative, and it was not the intention of the Legislature to repeal the fundamental principle of the common law forbidding a person to sit in judgment when his own interests are involved. Whether there are any circumstances which will justify a departure from this elementary rule by reason of the necessity of the case, we need not consider, as no such necessity arose in the trial of the present action. The only question presented is, was the juror competent to sit in the case? He was a stockholder of the plaintiff bank, and therefore had a direct pecuniary interest in the result of the trial. This cannot well be questioned. He was therefore made a judge in his own cause without any sufficient reason in law to sustain the ruling of the court. Whether he was actually biased or not is immaterial. Suppose a plaintiff in a case is called as a juror. Could we hesitate to declare his incompetency? The difference between such a case and the one before us, where the juror is the holder of stock in the plaintiff bank, is one that relates, not to the fact, but to the degree of interest."
The following appears in Peanut Growers Exchange v. Bobbitt,188 N.C. 335, 124 S.E. 625:
"`The defendant challenged the juror, Cherry, on the ground that he was a member of the plaintiff Peanut Growers Association. The defendant had already exhausted his peremptory challenges. The court examined the juror, Cherry, and, being of the opinion that he was an impartial juror, in its discretion refused to stand him aside.'"
The court, in deciding that the juror was incompetent, based its holdings upon the quotation from Murchison Nat. Bank v. DunnOil Mills Co., supra, which I have just set out. Accord:Michigan Air Line R. Co. v. Barnes, 40 Mich. 383;Lindsay-Strathmore Irr. Dist. v. Superior Court, 182 Cal. 315,187 P. 1056.
I maintain that the value fixed upon the property owned by the company in Okanogan county was not obtained by due process of law, because of the fact that certain of the jurors were interested. The constitution of the state of Illinois has provisions similar to ours. In passing upon the *Page 406 right of an interested party to determine questions involving personal interest, the supreme court of that state, inCommissioners of Union Drainage Dist. No. 1 v. Smith, 233 Ill. 417,84 N.E. 376, 16 L.R.A. (N.S.) 292, stated:
"The present constitution of the State (sec. 2, art. 2,) provides that no person shall be deprived of property without due process of law. Like provisions were found in the Constitution of 1818 and that of 1848. The term `due process of law' has been often defined. It is doubtful whether any definition affords a test which will enable the courts to determine, in every instance, whether or not any particular statute is in violation of this provision of the constitution. . . . Due process of law, however, does not mean a proceeding pursuant to any law which the legislature may see fit to pass, whether valid or invalid, but does mean `in the due course of legal proceedings according to those rules and forms which have been established for the protection of private rights.' (Burdick v. People, supra [149 Ill. 600].) Judge Cooley, in his work on Constitutional Limitations, at page 356, uses this language: `Due process of law in each particular case means such an exertion of the powers of government as the settled maxims of law permit and sanction, and under such safeguards for the protection of individual rights as those maxims prescribe for the class of cases to which the one in question belongs.'
"In determining what rules and forms have been established for the protection of private rights or what safeguards for the protection of individual rights the settled maxims of the law prescribe in such cases as this, we recognize the primal necessity to be laws providing impartial tribunals for the adjudication of rights. Section 9 of article 2 of the constitution of 1870 provides that in all criminal cases the accused shall be entitled to a speedy public trial by an impartial jury. The laws of the State have always placed about the jury box, both in civil and criminal cases, the greatest safeguards that the ingenuity of our law makers could devise for the purpose of excluding partial, prejudiced, dishonest and interested jurors. Our laws provide for changes of venue, by which the litigant may avoid the necessity of trying his case before a judge or chancellor believed to entertain a prejudice against him. Every constitutional provision that has ever been in effect in this State dealing with the method by which the property of an individual may be forcibly taken away from him, of necessity *Page 407 contemplated the determination of the question of the right to take that property by an impartial judicial body. By section 20 of article 2, supra, we are admonished that `a frequent recurrence to the fundamental principles of civil government is absolutely necessary to preserve the blessings of liberty.'
"While it is true that in a proceeding such as the one at bar the property owner is not entitled to `a trial by jury,' within the meaning of that phrase as it is used in the constitution, 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 a property interest in the result of the deliberations of the body of which he is a member. Self-interest would lead him to seek a low assessment for his own land and assessments correspondingly high for the lands of others. A statute which compels the litigant to submit his controversy to a tribunal of which his adversary is a member makes his antagonist his judge and does not afford due process of law."
To allow these interested jurors to hear and decide the case, destroys, or at least materially impairs, the right of trial by jury as it existed according to the course of the common law and is repugnant to the constitutional guarantee of that right. This would be true even had the legislature determined by statutory enactment that those financially interested, as these jurors were, could sit as members of the jury.
I am unable to agree with the majority in holding that theDonofrio and Aumiller cases are unimpaired authority for its holding. It is true that the succeeding cases did not, in express terms, overrule the earlier ones. However, the last cases did adopt a new and different rule which should now be considered as the law of this state. Especially is that true of the Hoquiam case. That case was heard En Banc on two occasions, and two opinions were written. In each opinion, the court reached a unanimous decision. In the last opinion, written after a rehearing had been granted, which appears on page 696 of volume 155, we find the following: *Page 408
"In this case, since the opinion was filed, a petition has been presented by the water service company and the other parties on that side of the controversy similarly situated, in which we are asked to do two things: First, direct the superior court to strike from the judgment of condemnation and award a certain provision; and second, determine the manner in which the money shall be paid into court as related to the taxes which are to be deducted therefrom.
"Taking these questions up in the order stated, it appears that there is an inconsistency between the judgment and the opinion in one particular. In the judgment it is recited:
"`That this judgment shall draw interest from August 27, 1929, against which interest shall be credited the net revenues from the operation of said water works system, up to and not exceeding the amount of said interest from said date August 27, 1929, up to the date of taking possession of said water works system by city of Hoquiam.'
"In the opinion, it is said:
"`The property owner is entitled to interest from the date of the award and to the income of the property up to the time that the amount of the award is paid to the property owner or into court in the manner provided by statute for his benefit.'
"The trial court is directed to strike from the judgment that portion of the paragraph above quoted which is inconsistent with what is said in the quoted portion of the opinion."
This decision overruled the Donofrio and Aumiller cases as effectively as though they had been referred to directly. This court has on numerous occasions overruled by implication earlier cases without reference to them by title. As an example, seeState v. Brodie, 7 Wn. 442, 35 P. 137; State v. Lewis,35 Wn. 261, 77 P. 198; State v. Vukich, 158 Wn. 362,290 P. 992.
To hold that interest may be offset by profits is to hold that the condemner has a proprietary interest in the property after entry of judgment, else it would not be entitled to any of the fruits of possession. The error of the holding is in the assumption that the property was actually taken and withdrawn from the possession of its owners by mere entry of judgment. As a matter of fact, the district has no real interest in the property whatever. It only has the *Page 409 right to make payment of the judgment, with accrued interest thereon, and then gain possession.
MILLARD, ROBINSON, and STEINERT, JJ., concur with SIMPSON, C.J.
July 5, 1944. Petition for rehearing denied.