Nalle v. City of Austin

• Decision Date: 25 May 1893
• Citation: 22 S.W. 668
• Parties: NALLE v. CITY OF AUSTIN et al.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Supreme Court

22 S.W. 668

NALLE v. CITY OF AUSTIN et al.¹

Supreme Court of Texas.

May 25, 1893.

Error to court of civil appeals of third supreme judicial district.

Action by Joseph Nalle, for himself and others, as taxpayers, against the city of Austin and others, to cancel certain bonds, to restrain the issue of other bonds, and for other relief. A judgment sustaining a demurrer to the petition was reversed by the court of civil appeals, (21 S. W. Rep. 375,) and defendants bring error. Reversed.

Geo. F. Pendexter, D. W. Doom, Fisher & Townes, W. M. Walton, and R. H. Ward, for plaintiffs in error. O. T. Holt, Goldthwaite Ewing, and H. F. Ring, for defendant in error.

GAINES, J.

This case comes to us upon a writ of error to the court of civil appeals of the third supreme judicial district, by which it is sought to review a judgment of that court reversing the judgment of the trial court, and remanding the cause for a new trial. Mr. Justice Key held himself disqualified to sit in the cause, and the judgment which is here sought to be reversed was rendered by the two other members of the court. After that judgment was rendered, the appellees, who are plaintiffs in error in this court, filed a motion for a rehearing, upon the ground, among others, that the two judges who sat in the case did not constitute a legal court, and that their action was therefore coram non judice and void. In the motion for a rehearing it was also urged that the court erred in its ruling upon the merits of the cause. The errors alleged in the motion for a rehearing are made the basis of the application for the writ of error.

We have first to determine whether or not we have jurisdiction of the cause. The judgment of the court of civil appeals being one which reversed the judgment of the trial court, and remanded the cause, this court has no power to review it unless the case come under some one of the eight exceptions specified in article 1011a,¹ which was made a part of the Revised Civil Statutes by the act approved April 13, 1892, which defined the jurisdiction of the supreme court. Laws 1892, p. 20. It is not claimed that the case, as originally presented in the court of civil appeals, comes under any one of the first seven exceptions, or that the disposition of it in that court "practically settled the case." But it is insisted that the questions which arose in the case after it reached the appellate court, and which grew out of the supposed disqualification of one of the judges, involve the construction of the constitution of the state, and that, therefore, this court has jurisdiction to review the entire case upon a writ of error. That the question of the legality of the court, as constituted by two of its members only, involves the construction of the constitution as well as the validity of a statute of the state, there can be no doubt. But whether the legislature intended to confer jurisdiction upon this court, when the constitutional question does not arise upon the merits of the case, but grows out of some matter of procedure in the court of civil appeals, is not so easy to determine. But from the commencement of every suit until its final termination, questions of procedure may arise, which may materially affect the result of the suit, but which are in no way involved in the intrinsic merits of the case. When such a question has been erroneously decided in the trial court the decision may be reviewed in the court of appeals, and the error may demand a reversal of the judgment. If, however, that court should affirm the judgment notwithstanding such error, this court, in a case in which that court's judgment is not made final by statute, would have jurisdiction to revise such error, and to render such judgment as that court ought to have rendered. For example, the question whether a charge is upon the weight of the evidence is not one involved in the issues made by the pleadings in the case, but it is one that affects the legal right of the parties, and, if answered in the affirmative, might be a ground for a reversal of the judgment in any court to which the case should be appealed. So, also, a question of procedure may spring up in a court of civil appeals. For example, the point may be there made that an alleged error of the trial court has not been properly assigned. Is it to be doubted that the court would have the power, in a proper case, to revise the decision by that tribunal of such a question, and to reverse its ruling, if found erroneous? If not, can such a question be distinguished from that now under consideration? Neither arises in the trial court; and if the question of a legal assignment of error be important the question of a legally-constituted tribunal to pass upon the appeal must be more so, because it affects the very life of any judgment that the court may render. If the judgment had been affirmed by the court of civil appeals, and the question whether or not a lawful quorum participated in the decision had been presented to this court in a proper manner, we could not have evaded the responsibility of deciding the question. The pleadings and the evidence and the proceedings, as they are all evolved in the progress of the cause from its commencement until its determination in the court of last resort, become a part of the case, and questions arising upon either may call for determination upon the final appeal. It follows that the case we have involves the construction of the constitution of the state, and that it comes literally within the second exception to the article of the statute above cited.

Having determined that we have jurisdiction, we come, next in order, to the question of Judge Key's disqualification. It was made a ground of the motion for rehearing filed in the court of civil appeals that Judge Key was qualified, and should have participated in the decision of the cause. In passing upon that motion the court, as constituted by the other two judges, held the contrary, upon the ground that he owned property in the city of Austin subject to taxation, and was therefore interested in the question of the legality of the tax, to be determined by the suit. This conclusion involves the further holding that section 27 of the act to define the jurisdiction of the courts of civil appeals, approved April 13, 1892, which prescribed an interest in the question as an additional ground of disqualification of a judge, was not in conflict with section 11, art. 5, of the constitution, as recently amended, which did not prescribe such interest as a disqualification. Judge Key was undoubtedly interested in the question at issue before the court. But whether section 11 of the article of the constitution just mentioned was not intended fully to define every ground of disqualification of a judge, and to take from the legislature all power to prescribe additional grounds, is a grave question. It is one, however, which we do not deem it necessary to determine.

This suit was brought by a property holder and taxpayer in the city of Austin to enjoin the collection of certain taxes for the years 1891 and 1892, which had been assessed for the purpose of paying the interest and sinking funds upon certain bonds, which it was claimed had been issued by the city for an illegal purpose. But, in addition to the injunction against the taxes, the plaintiff also sought to cancel the bonds so issued, and to restrain the issue of other bonds for the same purpose. The bonds already issued were alleged to amount to the sum of $900,000. The sum of the bonds, the issue of which was sought to be enjoined, was $500,000. If the latter obligations should be issued, they would, prima facie at least, authorize the assessment and collection of a tax upon all taxable values in the city for their payment. If their issue should be restrained, no such tax could be levied. It follows, therefore, as we think, that every holder of property in the city which is subject to taxation has not only an interest in the question to be determined by the suit, but also a direct pecuniary interest in the result. Judge Key, being the owner of taxable property in the city, was, in our opinion, disqualified to sit in the case. He was "interested" in the case, and was prohibited from sitting by section 11, art. 5, of the constitution. Without expressing either our concurrence or our disapproval of the ground upon which the court of civil appeals placed their ruling, we conclude that their decision of the question was correct.

But it is further insisted on behalf of plaintiff in error that if Judge Key was disqualified the two remaining judges did not constitute a lawful court. The contention of counsel is that under the provisions of the amended section 11, art. 5, of the constitution, when one member of the court of civil appeals is disqualified to sit in a cause, the fact should be certified to the governor, and that he shall then appoint a special judge to aid in its disposition, and that until this is done the other two members of the court have no power to proceed with the case. Still another reason for holding that two judges of the court of civil appeals cannot constitute a court for the transaction of its business has suggested itself to our minds, and, though not urged by counsel, in view of the importance of the matter, we deem it proper to dispose of it. It is involved in the main question immediately under consideration, and affects the right of any two members of any court of civil appeals in this state to hold a session of the court when the other is absent, from any cause whatever. We shall dispose of the latter question first.

Section 2 of amended article 5 of the constitution contains this provision: "The supreme court shall consist of a chief justice and two associate justices, any two of whom shall constitute a quorum, and the concurrence of two judges shall be necessary to a decision of a case." Section 4 reads, in part, as follows: "The court of...