Holland v. Cranfill

RASBURY, J.

[1] The city of Dallas derives its governmental authority from a special charter granted by the Legislature. Among other grants in the charter are certain initiative and referendum provisions by which the qualified electors of the city may initiate ordinances and have same referred to the electors for adoption or rejection. Dallas Charter (Acts 30th Leg. art. 8, page 49). In the manner provided by the charter, so far as the record here shows, an ordinance providing, in effect, that the city should issue its bonds in the sum of $400,000, and that the money secured thereby should be expended in constructing a municipal light plant for lighting the city’s buildings, streets, parks, grounds, etc., was by the mayor and board of commissioners referred to the qualified electors of the city for their adoption or rejection át a regular election held April 1, 1913. The election was held, and a canvass of the vote by the election officers developed that the ordinance had been adopted, and it was so declared by appellants. With reference to those entitled to vote in city elections the Dallas charter provides that at elections held to determine the expenditure of money, etc., only those shall be qualified to vote who pay taxes on property in the city, which, of course, applied to those electors who participated in the election under discussion. Shortly after the result of the vote on the adoption or re-jeetion of the ordinance was declared, appel-lee, a resident taxpayer, instituted the instant suit, alleging, in substance, that, while upon the face of the returns of said election there was east 1,585 votes for the ordinance and 1,512 against it, nevertheless 1,069 of the votes for the ordinance were illegal, for the reason that many persons voted for the ordinance who were not qualified voters, since they did not pay taxes upon property in the city of Dallas. Prayer was for a recount of the votes and the entry of such judgment as the facts would authorize. Appellants, the mayor and board of commissioners, met the issue thus tendered by full and appropriate pleadings. There was a trial by jury, before whom a recount of the votes was had, and upon their verdict judgment was entered reversing the returns of the election and reciting that said ordinance failed of enough votes to pass it, and decreeing that it was not adopted by the qualified electors participating in said election. Prom such judgment the mayor and board of commissioners have appealed and assign for review certain proceedings had in the court below.

Upon submission of the case, and during oral argument, the suggestion was made by counsel for the city that the members of this court are, if taxpayers of the city, disqualified by the Constitution of the state to hear and determine the cause, and should recuse themselves, and certify that fact to the Governor, in order that qualified justices may be appointed as provided by law. The ordinance involved in the election contest which is before us for review provides for the expenditure of $400,000 by the city, which amount can be secured only by taxation. Each member of this court owns property in and pays taxes thereon to, the city of Dallas. Thus the question at once arises: Are we “interested,” as that term has been several times construed, to such an extent as brings us within the provisions of the Constitution and prohibits our participation in the case? The Constitution ' of 1876, as amended in 1891, provides:

“No judge shall sit in any case wherein he may be interested, or where either of the parties may be connected with him, either by affinity or consanguinity, within such a degree as may be prescribed by law, or when he shall have been counsel in the case. When the Supreme Court, the Court of Criminal Appeals, the Court of Civil Appeals, or any member of either, shall be thus disqualified to hear and determine any case or cases in said court, the same shall be certified to the Governor of the state, who shall immediately commission the requisite number of persons learned in the law, for the trial and determination of such cause or causes. When a judge of the district court is disqualified by any of the causes above stated, the parties may, by consent appoint a proper person to try said case; or, upon their failing to do so, a competent person may be appointed to try the same in the county where it is pending in such manner as may be prescribed by lawr.” Const, art. 5, § 11.

That portion of the article which inhibits members of his court sitting in cases in which they are “interested” is, as we have said, the provision affecting us. The question has been before the appellate courts many times, but the ruling cases peculiarly applicable in the instant ease, because of similarity in the facts, are City of Austin v. Nalle, 85 Tex. 520, 22 S. W. 668; City of Dallas v. Peacock, 89 Tex. 58, 33 S. W. 220; City of Oak Cliff v. State of Texas ex rel. Gill et al., 97 Tex. 391, 70 S. W. 1069. The general rule deducible from those cases, as well as earlier Texas cases therein referred to, broadly stated, is that, where a judicial officer has such an interest in the matter at issue in a given suit that any order, decree, or judgment entered therein will affect him directly in a pecuniary manner, he comes within the provisions of the Constitution. On the other hand, if the result of his judgment, decree, or order is but to remotely affect him pecuniarily or is dependent upon other contingencies, he is not disqualified. Typical of the negative of the rule is City of Oak Cliff v. State ex rel. Gill, supra, wherein our Supreme Court held that Chief Justice Gaines was not disqualified to participate in a suit attacking the validity of the act of the Legislature annexing Oak Cliff to the city of Dallas. Justice Gaines was a taxpayer in the city of Dallas, and the act of annexation provided, among other things, in effect, that the city was authorized, for purposes therein enumerated, to issue $50,000 in bonds and levy a tax sufficient to provide a sinking fund and interest, and it was argued that, being a taxpayer, he was interested in the litigation, etc. The Supreme Court, speaking through then Justice Brown, held that Chief Justice Gaines was not disqualified because any judgment entered in the cause by the Supreme Court did not directly produce or cause the issuance of the bonds nor the levy of the tax, since the judgment holding the act valid in no respect exerted any influence over the city council of the city of Dallas in determining whether it would or would not act upon the authority conferred by the act of ax-nexation, and since its authority to do so was derived, not from the judgment or decree of the Supreme Court, but from the act annexing Oak Cliff. Applying the reverse of the holding in that case to the instant litigation, will any judgment we may enter in the instant case produce or defeat the issuance of the bonds and the levy of the tax necessary to the redemption thereof? We believe that indisputably it will. As we have said, the ordinance directing the issuance of the bonds was submitted to the electors of the city by authority of, and in compliance with, the initiative and referendum provisions of the city charter. One of the provisions of that article of the charter is that:

“If a majority of the qualified electors voting on said proposed ordinance shall vote in favor thereof, such ordinance shall thereupon become a valid and binding ordinance of the city, and any ordinance proposed by petition or which shall be adopted by a vote of the people cannot be repealed or amended except by a vote of the people.”

In construing the provision just quoted, pur Supreme Court, in City of Dallas v. Dallas Consolidated Electric Street Railway Co., 105 Tex. 337, 148 S. W. 292, said:

“The plain declaration of this charter provision that ‘such ordinance shall thereupon become a valid and binding ordinance of the city’ forbids the view that the completed enactment of this ordinance was dependent upon anything further than the ascertainment by the board of commissioners that a majority of the qualified electors had voted in favor of it.”

Thus, when appellants, the mayor and board of commissioners, ascertained that the ordinance here involved had been adopted, their functions ceased, and the ordinance stood a finished and completed municipal law, under which it was the duty of the appellants to prepare and negotiate the bonds and levy the tax thereby authorized and use them for the purpose indicated. It follows then that, if we take cognizance of the present cause, it will be to entertain and to determine a proceeding which contemplates the destruction of a law which has, in effect, imposed a tax directly upon us, and the existence of which, in the language of the Supreme Court, is dependent upon a judgment to be entered by the members of this court. The record here shows the ordinance was held by the lower court not to have been adopted, and, in illustration of what we have said, an affirmance of that judgment would be to relieve us of the tax imposed, and that such a condition would result is said to be a sure test of disqualification.

For the reason stated, we deem ourselves disqualified tb enter any order in the appeal other than to certify our disqualification to the Governor, which is herewith directed, and that the cause be passed until a special court is appointed to hear and determine same.