The Austin weekly statesman. (Austin, Tex.) 1883-1898, 1893-01-19
THE DECISION
ON THE SUIT AGAINT THE CITY OF
AUslIN's DAM PROJECT.
The Demurrer Of the City overruled on Two
Counts and the Case Reversed and
Remanded for Trial on Cues
tions Of Fact.

Following is the decision in full, ex-
cept the numerous authorities cited f,
OF the court of civil appeals delivered
yesterday morning on the suit against
Austin's dam:
10 eph Male for Himself and hers Similarly
Situated vs. The CITY Of Austin ct al. Appeal
from Travis CO. nty.
| OPINION.
There Is q preliminary question we
are called upon To decide, presented
by the affidavit of Associate Justice
| Kew, filed IN this court as a part Of the
record in the case, wherein IL Is stated
that he is q resident citizen and tax
payer OF the city of Austin, owning
within the limits of said city real and
personal property subject to taxation.
This affidavit raises the question of the
disqualification OF Associate Justice
Key to Sit in this case, he being inter
ested In the question to be de-
termined.
Section q, page 80, o! the acts of
the legislature OF april 10, 1892, says
that: mo judge of the courts OF civil
appeals shall sit in any cause wherein
he may be- Interested in the question
| to be determined
This presents new element of dis
qualification OF che judges from TAX
| ing part in the decision OF causes that
did not exist in previous laws upon
| the subject. Our supreme court has
held, in the cases of McFaduen vs..
Preston, "a Texas, 403, and King d
Davidson vs.. Sapp, 66 Tex, $40, under
the previous laws regulating the dis
qualification of judges, that mere in
Ierest in the question involved in the
suit did not disqualify the judge from
sitting in the trial of the cause.
| These decisions were previous to
| the present law stating in
what instances the judges of
this court are disqualified from par
ticipating in the decision OF a cause.
These decisions were in force when
the present law was passed, and it Is
presumed that the Legislature was
aware OF their existence and effect.
Tho language of the law regulating
the disqualification of judges of this
court is plain and is susceptible OF
only one construction II we give effect
to the language used. The disluali
fication OF judges to sit in causes is
within tina legislative control aud it
seems that they intended, from the
sweeping language used, to disqualify
the Judges of this court from determ-
ming questions that they are inter-
ested in, although they may have no
pecuniary interest in the cause before
them With a knowledge of the de-
cisions mentioned, the purpose OF the
legislature must have been to create a
disqualification that did not exist by
reason of the previous law upon the
subject as construed by the decisions
quoted. These decisions said that an
Interest in the question to be- deter
mined did not disqualify the judge.
The preSant law says that an interest
in the q Gestion to be determined does
disqualify the judge. We think 1t
apparent that the purpose of the pre-.
sent law was to meet the force of these
decisions and to provide for dlsquali-
ficatiOn that was said in these cases
not to exist.
Under this view of the question,
we are constrained to hold that AS
sociate Justice Key is disqualified
from sitting in the trial OF this cause.
We deem 1t proper to say that oil the
members of this court concur In this
construction Of the law.
Appellant, an inhabitant and tax
payer of the city of Austin, for him
self and others similarly situated,
brought this suit against the city OF
Austin, its mayor, board of aldermen,
board of public works, city tax COL
lector and treasurer, and others NAM
ed as the purchasers of certain bonds
mentioned in the petition, seeking the
cancellation of certain bonds issued by
the city and annulling certain ordinan
ces i'm relation thereto and restroom
ing the further issuance and negotia-
ti0n of other bonds under said erdi-
nances and restraining said clty's au-
thorities from proceeding further in
the erection and completion OF GER
tain dam across the Colorado river,
and restraining the tax col
lector from the collection of certain
taxes levied and assessed to pay the
bonds so issued and TO be issued.
General and special demurrers were
addressed to the petition, and upon
hearing they were sustained, and the
appellant declining to amend his ac-
tion was dismissed.
1t appears from theaverments OF the
petition that the city of Austin is
city of more than 10000 Inhabitants
and was such at the
time of and before the
commission of the acts complain
ed of. That the city was organized
and created into municipal rpora-
tiop by a special act OF the legislature
of Texas, approved April 8, 1873.
That the charter of sid city, as
reated by said act, was amended by
special act OF the Legislature, APP
proved April II, 1883. That the
amended act vested the Cover mental
functions and powers OF and pertain
ing to said city, in a mayor and BOARD
OF aldermen; aud among other powers
conferred upon said city it was pro.
vided that said mayor and council
shall have power by ordinance:
"First-To levy and collect an an
nual tax not exceeding per ceptum
upon all property within the limits OF
the city, made taxable by law for
state and county purposes, the money
raised by said tax to be used for the
current expenses and tor the general