On a former day of the present term the judgment was affirmed. Appellant has filed a motion for rehearing, urging errors in that opinion. We have carefully reviewed the questions suggested for reversal, as set out in the former opinion, and still think that the matters were correctly decided.
There is some complaint in the motion for rehearing that the court was not exactly accurate in two statements of the record. In the general statement of the evidence, in the original opinion, among other things, it was stated that Miss Long testified that after the insulting conduct of deceased towards her at the high school building she told Professor Wooten, Superintendent of the Public Schools of Paris, of this insult, and Wooten replied: "Miss Love, my teachers may criticise me at times about being a little rough, but they can never say *Page 114 that I did anything like that." An inspection of the testimony of Miss Long seems to bear out the statement of appellant that she did not make this statement to the jury. It came up in a bill of exceptions. We were aware, as a matter of course, that Professor Wooten was not permitted to so testify, for a bill of exception was reserved to the court's refusal to permit him to make a statement in regard to that matter. It seems that appellant is correct in this criticism of the statement of the evidence in the opinion, but it is a matter of no moment, and is referred to because of the criticism of the opinion in the motion for rehearing.
It is also contended there is another incorrect statement in regard to the bill of exceptions reserved to the ruling of the court impaneling the jury. The opinion states that the juror Bywaters sat upon the trial of the case. An inspection of the bill of exceptions and the whole record in regard to this matter will indicate that this may have and doubtless did arise by the writer in dictating the opinion calling the wrong name. The juror who sat upon the trial was Camer. This is a matter of indifference and of no importance, and had no effect upon the conclusion reached. Reference is made to these matters simply to make the opinion speak literally the truth as to the matters indicated and to meet appellant's criticisms. We are of opinion, however, there was no error in regard to impaneling the jury. The bill of exceptions, as stated in the original opinion, shows there was no objectionable juror taken on the trial. The bill, in regard to this particular matter, as explained by the court, recites the following: "That the defendant did not challenge the juror W.E. Camer for cause or peremptorily; they asked him no questions and had heard his answers to the State's counsel and said nothing whatever except after the State had accepted the juror one of the defendant's counsel said: `We except to this juror for the purpose of preserving exceptions heretofore made to jurors, but we do not except personally to him.'" In view of this statement of the court, the juror Camer was not objectionable, legally speaking. Therefore, we are still of opinion that the statement in the original opinion is correct, that no objectionable juror sat upon the trial of the case.
There is a question presented in motion for rehearing as an original proposition, not having been set up prior to the filing of the motion for rehearing. It is contended, as an original proposition on the rehearing, inasmuch as the Hon. Felix J. McCord, one of the members of this court, entered his disqualification in this case, that the decision is erroneous and void because two members of the court could not constitute such a quorum as was authorized to render the opinion or adjudicate the case. We are of opinion that this question should be decided adversely to appellant. In the case of City of Austin v. Nalle,85 Tex. 520, this question was decided by the Supreme Court of our State adversely to appellant's contention. In that case it is shown when the case was appealed to the Court of Civil Appeals, sitting at *Page 115 Austin, that Judge Key, a member of that court, entered his disqualification, the two remaining members of the court decided the case, and on writ of error it was taken to the Supreme Court. It is unnecessary to go into a long discussion of the matters involved in that opinion. Judge Gaines, then Associate, but now Chief Justice, of the Supreme Court, rendered the opinion. After comparing original section 11, article 5, as found in the Constitution of 1876 with the present section 11 of said Constitution, the opinion recites:
"In brief, the former says, that when any two members of the court are disqualified the Governor shall commission the requisite number of lawyers to try and determine the cause; the latter provides that he shall appoint the requisite number if but one member of the court be disqualified. Upon first blush the literal terms of the amendment would seem to demand, and the fact of the change would indicate that in any case in which a judge was recused a special judge should be appointed. But this construction, when the section in question is compared with other provisions in the amendment, leads to a manifest incongruity.
"We should bear in mind that section 11 applies in express terms to the Supreme Court and to the Court of Criminal Appeals. The amendment, in terms equally clear, provides that two members of either of these courts shall constitute a quorum. So that if it should be held that the Governor should appoint a special judge in every case in which a member of either of these two courts should be disqualified the remaining two could not act, although they could make a decision if that member was merely absent, or saw fit from any cause not to take part in the decision of the case.
"No reason suggests itself to us for such a distinction. Why, if two members of the court make a quorum, should a third be appointed in a case in which the two may concur in a decision? There can be none. But there is a necessity for an appointment when the two judges who are qualified may disagree.
"This suggests the consideration which, as we think, led to the change in the section under consideration. Under the original section a special judge could be appointed only when two members of a court were disqualified; and hence there was no provision to meet the case when one was disqualified and the other two failed to concur as to the decision of the case. The amended section obviates this difficulty by providing for an appointment when only one is disqualified.
"It does not follow that an appointment is to be made in every such case. The requirement is that the Governor `shall commission the requisite number . . . for the trial and determination of such cause.' If three were required to make a quorum, then one being disqualified, another would be necessary to make the requisite number to decide the cause. So also, if one be disqualified and the other two disagree, the appointment of a special judge is requisite to enable the court to make a decision, although two may constitute a quorum. But *Page 116 if two be a quorum, and two be qualified and able to agree, no additional judge is requisite to a decision of the case, although the third member of the court be recused.
"So construed, we see a satisfactory and sufficient reason for the change made by the amendment. Construed as requiring the appointment of a special judge in every case in which one member of either of the courts is disqualified, we perceive no sound reason for the departure from the previous law. Though not strictly repugnant to those provisions which make two members, either of the Supreme Court or of the Court of Criminal Appeals, a quorum to transact business, such a construction does not accord with their spirit.
"We, conclude, therefore, that the disqualification of Judge Key did not make requisite the appointment of a special judge, and that the court composed of his two associates constituted a lawful tribunal for the trial and determination of the case."
That case has been followed in Holt v. Maverick, 86 Tex. 457 [86 Tex. 457]; Gwin v. O'Daniel, 85 Tex. 563; Railroad Co. v. Adams, 25 S.W. Rep., 639. This seems to be the rule in other States under provisions of the Constitution similar to our Texas Constitution. The question as to the number of judges required to be present and necessary to authorize the legal transaction of business by a court, as a general rule, is to be determined from the constitutional or statutory provisions creating and regulating courts. The number varies in different jurisdictions, but as a general rule a majority of the members of a court is a quorum sufficient for the transaction of business and the decision of cases. In the absence of a quorum or the number required by law to hold court, a judgment rendered by the remaining judges would be regarded as a nullity, because in such case there would be no authority in the court to render the judgment. In support of the above we would cite Trice v. Crittenden County,7 Ark. 159; Ferguson v. Crittenden County, 6 Ark. 479; Jagger v. Coon, 5 Mich. 31; Coffin v. Hussey, 12 Pick., 289; Engle v. State, 50 N.J.L. 272; McFarland v. Crary, 6 Wend., 298; Kilpatrick v. Com., 31 Pa. St., 198; Commonwealth v. Martin, 2 Pa. St., 244; Steele v. Blanton, 1 Lea, 514; Austin v. Nalle, 85 Tex. 520; West v. Burke, 60 Tex. 51 [60 Tex. 51]; State v. Bradley, 67 Vt. 465.
It may be further stated that the effect which the death, disqualification or absence of a judge may have upon the authority of remaining judges to hold court and transact the business of the court, must depend upon the provisions of the Constitution and statutes in reference to the courts. As a rule, the death, disqualification or the absence of a judge will not deprive the surviving or remaining judges of authority to hold court and transact the business of the court, and in fact to exercise all functions pertaining to the particular court, provided, however, that the number of the court is not reduced below that legally required for the transaction of its business. The above seems to be universally correct. It was held in New York that the *Page 117 death of one of three judges does not deprive the surviving two of the power to hold court. Campbell v. Seaman, 63 N.Y. 568. So it was held in North Carolina, State v. Lane, 26 N.C. 434. Such is the rule as well in South Carolina, Aultman v. Utsey,35 S.C. 596. Again, it has been held that where one of the judges is disqualified from sitting, the remaining judges may hold court. Nalle v. Austin, supra; Western Union Tel. Co. v. McLeod, 24 S.W. Rep., 815; Oakley v. Aspinwall, 2 Sandf. (N.Y.) 7; People v. Davis, 61 Barb. (N.Y.) 456; McLughan v. Bovard, 4 Watts (Pa.), 308. It was also held in South Carolina that in case of a vacancy in office the remaining judges may act. Sullivan v. Speights,14 S.C. 358. It has also been held that the absence of a judge may not deprive the court from acting. Pedrieau v. Hunt, Riley Eq. (S.C.), 75. So, in the absence of a judge of a special court commissioned by the Governor has been held not to invalidate proceedings held by the other two. Goodman v. Walker, 29 Ala. 444. The temporary absence of one of the members necessary to make a duly organized court does not impair the validity of the court's proceedings. People v. Dohring, 59 N.Y. 374; Tuttle v. People, 36 N.Y. 431.
We deem it unnecessary to pursue this matter further, as the courts of the United States seem to be practically of one mind in regard to the decision of the question here involved. The reasoning of Judge Gaines in the case of City of Austin v. Nalle, supra, places the decision of this question upon correct grounds, and we are of opinion that his reasoning is unanswerable and ought to settle the question.
We are of opinion, after carefully reviewing appellant's motion for rehearing, that it should be overruled, and it is accordingly so ordered.
Overruled.
McCord, Judge, not sitting.