City of Dallas v. Peacock

• Decision Date: 16 December 1895
• Citation: 33 S.W. 220
• Parties: CITY OF DALLAS v. PEACOCK.
• Court: Texas Supreme Court

33 S.W. 220

CITY OF DALLAS v. PEACOCK.

Supreme Court of Texas.

December 16, 1895.

Certified questions from court of civil appeals of Fifth supreme judicial district.

Action by Evelyn Peacock against the city of Dallas to recover damages for personal injuries caused by a broken and defective grating to a sewer, negligently left open by defendant. From a judgment for plaintiff, defendant appealed to the court of civil appeals, which certified certain questions to the supreme court for determination.

A. P. Wozencraft, for appellant. Holloway & Holloway, for appellee.

GAINES, C. J.

In this case the court of civil appeals for the Fifth supreme judicial district submit for our determination the following questions:

"In this case, and a number of others pending on the docket of this court, the question of disqualification of the judges occurs to us under the Nalle Case, cited below. Two of the judges of the court of civil appeals for the Fifth supreme judicial district own residences in the city of Dallas, and all three of them are taxpayers in the city of Dallas. This was a suit below by appellee against the city of Dallas for $10,000 for personal injuries alleged to have been received by appellee by reason of a broken and defective grating to a sewer, negligently left open by the city. There was a recovery below for $3,000 damages. The question of disqualification is not raised by either party to the suit, but is suggested by the judges themselves.

"Question 1. Does the fact that such judges are taxpayers in the city disqualify them from sitting as judges in such case?

"Question 2. Does the disqualification mentioned by the supreme court in the case of City of Austin v. Nalle, 85 Tex. 520, 22 S. W. 668, 960, include all cases where the judges of the court of civil appeals are taxpayers in the city, and where there may be a money judgment against the city?

"Question 3. In the absence of any objection on the part of such litigants on the ground of disqualification, or where there is a waiver on their part, would it be proper for the judges of this court to decide the case?"

The counsel for the city of Dallas has filed no briefs upon the questions certified. A brief for appellee has been presented, which contains a citation of numerous authorities in support of the position that the judges of the court are not disqualified. It is noteworthy that, notwithstanding the judges are taxpayers of the appellant corporation, counsel for the appellee are not unwilling to submit the case to their determination.

1. We think the decided weight of authority is that at common law a taxpayer in a municipal corporation has such an interest in a suit between the corporation and another party as disqualifies him to sit either as judge or juror in the case. Hesketh v. Braddock, 3 Burrows, 1847, is a leading case upon the subject, in which it was held that the freemen of the city of Chester were disqualified to sit upon the trial of a case which involved the question of the existence of a custom "to exclude all strangers from trading in the city." It was held that the freemen had an interest in the result of the suit, and that that interest, however minute, disqualified them. In City of London v. Wood, 12 Mod. 686, Holt, C. J., says: "To say that one who is free of the corporation should not be judge because he is to have a share of the penalty, is as ridiculous as it is groundless;" but in that case it was held that the judgment was voidable, and should be reversed, because the suit was brought by the mayor and commonalty, and the court was held before the mayor and aldermen. The ground was that the mayor was judge in his own case, the record so showing, though, as a matter of fact, the recorder may have presided as his deputy. We doubt if the English cases which hold the freemen of a city or the burgesses of a borough disqualified to act as judges or jurors in such suits should be deemed precedents for us to follow, for the reason that there seems to exist a well-founded distinction between municipal corporations in England, where the charters are granted by the crown, and confer exclusive privileges and special immunities, and such corporations in this state, which are established purely for governmental purposes. As pointed out in Eastman v. Meredith, 36 N. H. 284, the former are assimilated rather to private than to public corporations proper, as known in this country. It may be that the freemen of an English city have a more direct interest in the corporate business and funds than has a resident citizen and taxpayer of a municipality in the United States. However that may be, there are numerous decisions in the American courts, of which we cite some, which hold that a resident and taxpayer of a municipality has such interest in a suit brought by or against such municipality as to disqualify him from sitting as judge or juror. Com. v. Ryan, 5 Mass. 90; Clark v. Lamb, 2 Allen, 396; Inhabitants of Tolland v. County Com'rs, 13 Gray, 12; Wood v. Stoddard, 2 Johns. 194; Diveny v. Elmira, 51 N. Y. 506; Fulweiler v. St. Louis, 61 Mo. 479; Rose v. City of St. Charles, 49 Mo. 509; City Council v. Pepper, 1 Rich. Law, 364. It is, however, generally recognized in such cases that the interest is so minute and remote that the legislature has power to remove the disqualification; and in some of the cases cited, while the common-law rule is recognized, it is held that the incompetency was taken away by the statute. See, also, Mayor, etc., of Cartersville v. Lyon, 69 Ga. 577; State v. Severance (Me.) 4 Atl. 560; State v. Intoxicating Liquors, 54 Me. 564; State v. Macdonald, 26 Minn. 445, 4 N. W. 1107. In the following cases a contrary ruling was made: Board of Justices v. Fennimore, 1 N. J. Law, 190; Kemper v. City of Louisville, 14 Bush, 87; City of Omaha v. Olmstead, 5 Neb. 446. But we think the doctrine that being a mere taxpayer of a city does not work a disqualification is supported by the sounder reason, at least as applied to municipalities existing under our laws. The grounds of disqualification of the judges in this state are prescribed in the constitution. "No judge shall sit in any case in which he may be interested" is the language of the provision which we are called upon to construe. Const. art. 5, § 11. The same provision, in the same language, is found in the...