Marsh v. Ferguson , 262 S.W. 805 ( 1924 )

BARCUS, J.

Appellees T. Ferguson, T. W. Morley, and Angus Wallace, for themselves and 25 other taxpayers in the town of Mad-isonville, brought this suit against Foster Marsh, tax collector. J. E. Morris, mayor, and J L. Cooper, secretary of Madisonville, seeking to declare null and void an alleged tax levy made by the city of Madisonville for the year 1922 on personal and real property situated in Madisonville, and during the pendency of the suit sought a temporary injunction restraining the defendants from collecting the tax or declaring the property delinquent, and asked that the temporary inr junction on final hearing be made permanent. A temporary writ of injunction was granted by the district judge, Hon. Carl T. Harper, as prayed for On final hearing of the cause before Judge Harper the defendants, as city officials of Madisonville, were permanently enjoined from collecting the tax for the year 1922 as against plaintiffs and those for whom the suit was brought, and the judgment contained this provision:

“It is further ordered, adjudged, and decreed that the tax levy made by the city council for the year 1922 is null and void and óf no force and effect, * * * and that there is no valid and sufficient tax levy made by said city council of the city of Madisonville for the collection of tax for the year 1922.”

The appellants, by proper plea presented in the trial court and in this court, contend that the district judge was disqualified to try this cause, for the reason that he was interested in the subject-matter. Article 5, § 11, of the Constitution, provides: “No judge shall sit in any case wherein he may be interested.” It was an admitted fact that Judge Harper was a resident citizen of, and owned property subject to taxation in, the city of Mad-isonville, and that he had not paid his city tax for the year 1922.

Appellees contend that Judge Harper was not disqualified, because this was a suit brought by certain taxpayers to prevent the collection of their individual tax, and that under the rule announced in City of Dallas v Peacock, 89 Tex. 58, 33 S. W. 220, and Nalle v. City of Austin, 41 Tex. Civ. App. 423, 93 S. W 141, the district judge did not have such an interest in the cause as would disqualify him and prevent his trying the case.

The question of the disqualification of a trial judge has been before the courts many times, and it is the policy of the courts to hold the trial court qualified whenever it is at all possible.

In the instant case the appellees attack the ordinance levying the tax for the year 1922, and contend that there was no legal tax levy made on any of the property in the city of Madisonville. The judgment of the court sustained that contention, 'and not only-enjoined the city officials from collecting the tax assessed against the property of appellees and those taxpayers for whom the suit was brought, but held that the attempted tax levy in its entirety for 1922 was null and void. The effect of the judgment is to re'r lease the property of Judge Harper from said tax. We believe under the facts in this case it should be governed by City of Austin v. Nalle, 85 Tex. 520, 22 S. W 668, 960. in which it was held that Judge Key was disqualified to sit in tlie ease on the appellate bench by reason of his owning property in the city of Austin; the suit being one to enjoin the levying of tax by the city council for the purpose of paying bonds and to enjoin the collection of the tax which had already been assessed for said purpose.

In Wetsel v State, 5 Tex. Civ. App. 17, 23 S. W. 825, suit was brought to dissolve the corporation of the city of Amarillo and enjoin the collection of. tax. It was held that the trial judge, who owned property in the city, was disqualified; and to the same effect is Cisco v. State (Tex. Civ. App.) 33 S. W. 244.

In Kansas City, M. & O. Ry. Co. v. Cole (Tex. Civ. App.) 145 S W. 1098, the suit involved the removal of the machine shops and roundhouse of the railway company from Sweetwater. It was held that the trial judge was disqualified because of his interest in the litigation; it being an admitted fact that he was an owner of property within the city of Sweetwater and the removal of shops would depreciate the value of his property.

In Holland v. Cranfill (Tex. Civ App.) 167 S. W. 308, the validity of an election levying $400,000 bonds was involved, and the question was presented as to whether the judges of the appellate court were disqualified from passing on the question because each of them was a taxpayer in the city of Dallas. It was held that they had such an interest in the matter that they were disqualified.

In the case of Orndorff v McKee (Tex. Civ. App.) 188 S. W 432, where certain taxpayers brought suit to enjoin the county commissioners’ court from making a contract for the paving of a road in El Paso county and issuing warrants therefor, the trial judge, who was a property owner in said county, was held not to be disqualified because his interest and the effect on him if the road should be built were very remote and dependent upon contingencies; and to the same effect is the opinion in the City of Oak Cliff v. State, 97 Tex. 391, 79 S. W. 1068.

It is noteworthy that in almost every case since the decision of City of Austin v. Nalle, 85 Tex. 520, 22 S. W 688, 960, same has been cited, and the Supreme Court in several instances has attempted to clearly enunciate the limit to which it intended that case to extend. In all of the cases, however, it is held that where the trial judge is directly interested in a pecuniary way in the result of the litigation, however small that interest may be, he is disqualified. We do not believe it can be said in the instant case tht Judge Harper is not interested. The result of the judgment, as above stated, is that the attempted ordinance levying the tax for 1922 on his property has been declared void. ’ We believe he is disqualified to try this cause, and by reason thereof the judgment should be reversed.

Since the trial court was disqualified to hear this cause, it would not be proper for us to pass on any other question suggested in briefs. Sovereign. Camp, W. O. W, v. Hale, 56 Tex. Civ App. 447, 120 S. W. 539; Slaven v. Wheeler, 58 Tex. 23.

The cause is reversed and remanded.