79 S.W. 1068 | Tex. | 1904
Plaintiff in error moves this court to vacate the judgment entered in this cause for the reason that Chief Justice Gaines is disqualified to sit as a judge in the trial because he is a property owner and taxpayer of the city of Dallas. The act which annexed Oak Cliff to the city of Dallas contains these provisions: Section 4. "The city of Dallas shall, within sixty days after this act takes effect, levy a tax sufficient to provide a sinking fund and interest for fifty thousand dollars in bonds." Section 9. "That the city council of the city of Dallas shall be authorized and is hereby fully empowered to issue the bonds herein specified, independent of and irrespective of any other authority heretofore granted to said city and contained in said charter of the said city of Dallas without the necessity of an election being held therefor." Section 11 of article 5 of the Constitution contains this provision: "No judge shall sit in any case wherein he may be interested." The validity of the entire act and especially of the provisions quoted are attacked by the plaintiff in error, and it is claimed that the judgment of this court will affect the pecuniary interest of Chief Justice Gaines, because the issue of the bonds will require the levy of a tax upon his property.
In his treatise on Courts, Mr. Work expresses the result of the authorities upon the question thus: "The interest which will disqualify a judge must be direct and immediate and not contingent and remote." P. 396.
The law in question makes it the duty of the city council of Dallas to issue bonds upon the whole property of the city as it will be when Oak Cliff is annexed, to the amount of fifty thousand dollars, and to levy upon all the property of the city of Dallas a tax sufficient to pay the interest and sinking fund.
The case of City of Austin v. Nalle,
Meyer v. City of San Diego,
North Bloomfield v. Keyser,
Wetzel v. State, 3 Texas Civ. App. 17[
In the case of the City of Dallas v. Peacock,
Thornburgh v. City of Tyler, 16 Texas Civ. App. 439[
From these authorities, and others that we have examined, we think the rule may be stated negatively in this form: "That where a judicial officer has not so direct an interest in the cause or matter as that the result must necessarily affect him to his personal or pecuniary loss or gain, * * * then he may sit." In re Ryers et al.,
Chief Justice Gaines did not participate in the decision of this question.