Perry v. State , 44 Tex. Civ. App. 55 ( 1906 )

This was a proceeding under chapter 2, title 74, of the Revised Statutes to remove appellant from the office of county judge of Ochiltree County for official misconduct as defined in article 3534 of said chapter. The trial resulted in a verdict and judgment adverse to appellant, and hence this appeal.

The principal assignments question the sufficiency of the petition and of the evidence to sustain the verdict. The gravamen of the charge, so far as necessary to here notice, is that about the 1st of December, 1905, as well as at various and sundry dates just prior and after said time, appellant was a member of an organization known as the Anti-tax Party, which had for its object and purpose the hindrance, delay and defeat of the collection of State and county taxes upon what is known as school lands; that appellant lent his personal and political influence and support, as well as his official position, and used and directed his official acts to effect the purpose stated; that he not only failed and refused to furnish complete lists of his own property to the tax assessor of said county for taxation for the year 1905, but that he also presided over the Commissioners' Court at the time when the tax rolls were before said court for equalization and approval, and then and there knowingly approved said rolls, knowing that the same listed property as that of unknown owners when the owners were well known. It was further charged that about the day in December mentioned, a conspiracy between appellant and a number of other persons and officers of said county existed having for its sole object the defeat of said school land tax; that appellant and others named in the petition, who included the county clerk, sheriff and tax collector and three of the county commissioners, conspired together, and that in aid of the objects of the conspiracy, appellant on said day of December, 1905, as well as at other dates, called and held clandestine terms of the Commissioners' Court, accepted resignations of certain county commissioners and appointed others of like sentiment in their places, all of which was charged to have been done on appellant's part wilfully and corruptly.

While there are several special exceptions, we think they in the main amount substantially to general demurrers and we have concluded that the petition is sufficient as against a general demurrer, and also as against the third special exception to the effect that the petition was not sufficiently specific. We have also concluded that we would not be authorized under the evidence to set aside the verdict of the jury substantially affirming the material facts presented, and will dispose of the numerous assignments in a general way.

The petition directly alleged that appellant conspired together with others for a purpose that it must be conceded was unlawful, and it charged that appellant, as county judge, knowingly and wilfully acted in furtherance of the objects of the conspiracy. It was unnecessary for the petition to set out the evidence tending to show such conspiracy. The petition did state certain specific acts done by appellant in furtherance of the objects of the conspiracy, giving the time and place of their occurrence with as much certainty, perhaps, as the nature of the case would admit. It can not be expected that conspiracies will be formed and that acts pursuance thereto will be done openly, and we can not say that the court erred in holding that appellee's petition was sufficiently definite in the respects pointed out in article 3543, prescribing the requisites of a petition in such cases.

Nor do we feel able to say that the court was in error in admitting proof that prior to appellant's election he was a member of and acting with a political party having for its object the defeat or delay of the taxes mentioned. It was charged that appellant was a member of and acting in conspiracy in December after his election, and proof of what he did and said before election was relevant to that issue. Nor will the fact that the school lands described in the petition were afterwards duly assessed and placed upon the tax rolls of the county, relieve appellant of an unsuccessful effort to prevent it. The evidence tends to show that the lands were so placed upon the rolls only in obedience to the special act of the Legislature approved April 17, 1905. (See General Laws of 1905, page 321.) The necessity and occasion of this Act of the Legislature may have been brought about by the very acts of appellant and his alleged co-conspirators. As explanatory of the fact that appellant and members of the Commissioners' Court subsequently approved the tax rolls as required by law, we think it was competent to show that prior thereto suits had been instituted to enforce such action. We think it was competent to show that appellant was present and, at least apparently, acted together with commissioners alleged to be in the conspiracy in passing a resolution during the summer of 1905 to the effect that they would not place the school lands upon the rolls. It needs no citation of the statutes to show that such a conclusion, if carried into effect, would result in at least delay in the collection of taxes; nor do we think there was error in permitting proof that upon the removal of James Whippo, the clerk of the County Court and one of the alleged conspirators, the docket of the Commissioners' Court was not to be found in the county vault or court house by appellee, who was appointed as the successor of Whippo. If Whippo was a member of the conspiracy charged, his acts or omissions during its pendency and in aid thereof were admissible against all. Nor can we say that the court committed error in permitting proof that the Commissioners' Court, over which appellant presided, approved the tax rolls of the county with taxes thereon charged against school lands in the name of unknown owners, when the court and appellant knew to whom the land charged belonged. Article 5120 gives the power and makes it the duty of such court to correct errors in assessments, and it can not be said that the State and county can as effectively and expeditiously collect taxes against unknown owners as in cases where the owners are known.

We find no error in the charges given, nor in the action of the court in refusing special charges, and believing that the evidence sufficiently supports the verdict affirming the material averments of the petition under consideration, it is ordered that the judgment be affirmed.

Affirmed.

Writ of error refused.