The State of Texas ex rel. v. B. M. Burks et al., 82 Tex. 584

HENRY, Associate Justice. This was an information in the nature of a quo warranto to dissolve the corporation of the city of Ballinger. The information was presented to and ordered to be filed by the judge of the District Court of the district in which the county of Runnels was situated. When the cause was reached for hearing, said judge held himself disqualified to sit, because he had been of counsel in the case. The parties then agreed upon a judge, who dismissed the cause because the disqualification of the regular judge existed at the time when he ordered the information to be filed.

The ground of objection to the corporation was, that in the act of incorporation it was attempted to include territory beyond the limits of the city proper.

It is shown by a bill of exceptions, that in the proceedings leading to a vote by the people upon the question of incorporation the law firm of which the regular judge was then a member was consulted by and acted for the citizens who were instrumental in giving shape to the proceedings to “see that all necessary orders and papers were gotten up and presented in legal form, and to see that Ballinger was legally incorporated;” that the partner of the judge wrote the petition for an election addressed to the county judge; that the judge-himself prepared the field notes showing the boundaries that were subsequently adopted, and also the order of the county judge for the election, as well as the one declaring the result; that he prepared the order for the election of officers, and gave instructions to the clerk about entering the order in the record.

The judge received no compensation, and gave no opinion “as to whether or not it would be legal or illegal to take in so much territory.” It fairly appears that in all of the proceedings had in regard to creating the corporation the advice of the firm of lawyers of which the judge was then a member was sought and followed. It is not claimed that the judge did anything or had any connection with the matter as a lawyer after this suit was begun or contemplated.

The questions presented for our decision are, whether the judge was disqualified under the constitution, and whether such disqualification embraces his authority to make the order to file the information as well as to preside at the trial of the cause. Delivered December 18, 1891.

The language of the quo warranto is, that the Attorney-General or district or county attorney “may present a petition to the District Court of the proper county or any judge thereof in vacation, for leave to file an information in the nature of a quo warranto; in the name of the State of Texas; and if such court or judge shall he satisfied that there is probable ground for the proceeding, the court or judge may grant the petition and order the information to be filed and process to issue. ’ ' The order is clearly an exercise of the judicial discretion of the judge whether he acts in vacation or in open court, and the petition can not be filed nor the suit be maintained unless such order has been made. iSTo distinction can be recognized between the authority of a disqualified judge to make such an order and to preside at the trial of the cause.

We are of the opinion that the regular judge properly held himself disqualified, and that the selected judge did not err in ordering the dismissal of the cause. Slaven v. Wheeler, 58 Texas, 23. The judgment is affirmed. Affirmed.