This cause was affirmed November 15, 1916, on which date the original opinion was handed down. Within fifteen days appellants made a motion for a rehearing, which was heard in due order. At that time appellants also made a motion alleging that Judge Harper, then one of the judges of this court, had formed a a partnership for the practice of law at El Paso and had since November 20th actually engaged in the practice of law in courts of record there, and thereby vacated the office of judge of this court. This court considered that matter at the time with a full court, then composed of Judges Davidson, Harper and this writer. This court by its order of December 27th overruled said motions and handed down its opinion on the same day. On December 29th the mandate from this to the lower court was duly issued and sent to the proper officer of the lower court. Judge Harper's term of office expired December 31st. Judge Morrow succeeded him and took the oath of office the next day, January 1, 1917.
Some days later appellants placed in the hands of the members of this court another motion, and argument and brief thereon, attacking the judgment and opinion of this court overruling their motion for a rehearing, on substantially the grounds they had before alleged, to the effect that Judge Harper had vacated and abandoned the office of judge of this court on and after November 20th because he had formed the said law partnership and engaged in the practice of law in the courts of record of this State and had a pecuniary interest in this cause in that he would get his salary as judge of this court up to the termination of his term of office on December 31, 1916, and seek thereby to have this court as now constituted reopen said cause, hold that Judge Harper had vacated and abandoned his office and had a pecuniary interest in this cause, which disqualified him to act therein at the time this court overruled their motion for a rehearing.
Each member of this court has investigated the questions thus sought to be raised, and after mature deliberation has reached the conclusion that none of appellants' contentions ought or can be sustained. We all deem it unnecessary to go into an elaborate discussion of the question *Page 155 or citation of authorities to any extent, but content ourselves with stating our conclusions.
We decline to permit appellants to file the papers above mentioned, which have been in our hands as stated, seeking to reopen the final judgment rendered herein, on the following grounds: (1) Because they present no constitutional or statutory grounds of disqualification of Judge Harper even if all of the allegations were admitted to be true, nor do they show an abandonment of the office by Judge Harper so as to have created any vacancy. (2) Because they are a collateral attack upon the title of Judge Harper to said judicial office. (3) Because they show that Judge Harper was in fact a de facto judge of this court even if he could not be held at the time to be a de jure judge thereof.
It is well settled by the courts of this and other States that the title of an incumbent to a judicial office can not legally be questioned in a collateral proceeding, as the said attack is of Judge Harper's office. Ex parte Call, 2 Texas Crim. App., 497; Hamilton v. State, 51 S.W. Rep., 217; State v. Brown, 12 Minn. 538; Plymouth v. Painter, 17 Conn. 585; Carlton v. People,10 Mich. 250; Brown v. Lunt, 37 Me. 423; State v. Miller,5 Wis. 308; Com. v. Fowler, 10 Mass. 290; State v. Williams, 35 La. Ann., 742; Ex parte Strahl, 16 Ia., 369; Curtin v. Barton,139 N.Y. 505; State v. Miller, 20 S.W. Rep., 243; Cooper v. Moore,44 Miss. 386; Rogers v. Beauchamp, 10 Ind. 33; Ball v. United States, 140 U.S. 118; Manning v. Weeks, 139 U.S. 504.
Even if it be conceded that Judge Harper engaged in the practice of law as claimed, he did not thereby vacate nor abandon his office, as has been expressly held by the Supreme Court of Missouri in State, ex rel. Attorney General, v. Seay, 64 Mo. 97.
There is no question but that as a matter of fact, as the records and minutes of this court show, and of which we have unquestionable judicial knowledge, Judge Harper continued up to the time his term of office expired, as stated, to exercise the functions of a judge of this court under his commission and was unquestionably a judge of this court de facto, and all of his actions as such were valid with reference to the public and third persons and appellants herein. "We would not be understood, however, as holding that he was not a de jure officer." (Hamilton v. State, 40 Tex.Crim. Rep., 51 S.W. Rep., 217); State v. Cowl, 38 Conn. 449; Pringle v. State, 67 So. Rep., 455; Woodside v. Wagg, 71 Me. 207; Throop, sec. 631, p. 597.
Therefore, the clerk of this court is hereby directed and required to enter an order to the effect that this court and the judges thereof decline and refuse to permit appellants to file said documents in this court.
Overruled. *Page 156