* Writ of error granted April 9, 1924. The propositions stated in the appellant's brief in effect present the point in view, viz. that a county officer cannot be removed from office during the succeeding term, when the removal is sought, for acts involving official misconduct committed during the preceding term. According to the terms of the statute, a county officer is made amenable to "removal from office" for the specially defined causes of "official misconduct," "incompetency to discharge the duties of office," and "drunkenness while he is an officer." But it is expressly provided that —
"No officer shall be prosecuted or removed from office for any act he may have committed prior to his election to office." Articles 6030-6055, Rev.Stat.
The phrase "prior to his election to office" would, and is intended to, apply to a reelection as well as election in the first instance, since the re-election of the same officer is in legal effect the same as an original election. As the Constitution does not provide for continuity of terms of office, each "term of the office" legally becomes an entity, separate and distinct from all other terms of the same office. Consequently it would be illogical to interpret the law as meaning that an officer cannot be removed from office for any cause accruing before his election in the first instance, but he can be ousted from his second term for any cause accruing in the first term. For instance, suppose an officer voluntarily retired after the first election, or was defeated for a second or successive second term, and then several years afterwards was again elected to the same office. Could he then be removed for any cause accruing in his first term? Clearly, the object and purpose of the law is to remove the officer from the office he is then holding only for causes accruing during that precise term at which the removal is sought. The following cases are in support of that principle: Thurston v. Clark,107 Cal. 285, 40 P. 435; Speed v. Common Council of Detroit, 98 Mich. 360,57 N.W. 406, 22 L.R.A. 842, 39 Am.St.Rep. 555.
The case of Brackenridge v. State, 27 Tex.App. 513[27 Tex.Crim. 513],11 S.W. 630, 4 L.R.A. 360, does not present the question here involved. In that case, as the opinion shows, the wrongful act was committed "after re-election, but before he had qualified for the second term." In the interpretation given the statute the point made by the appellant will be sustained. Looking to the record, it appears that the petition alleged, and the fact was admitted, that appellant was elected sheriff of Titus county in November, 1920, duly qualifying on December 1, 1921; and again in November, 1922, duly qualifying as his own successor on January 8, 1923. It further conclusively appears that the alleged charges numbered 1, 2, 3, and that part of No. 6 as pertains to Clem Gray, Arthur Tigert, and Newt Jernigan, and which were specially found by the jury to be "sustained by the evidence," were all committed during the years 1921 and 1922, and entirely during the first term of office. These particular findings of the jury are therefore set aside and held for naught in the disposition of this case. Also the evidence offered respecting the charges alleged to have accrued in the first term was inadmissible, and the objection thereto was well taken.
But a reversal of the judgment does not necessarily follow because of the fact that the removal of appellant was partly based on charges accruing in the first term, and that evidence was offered in support of such particular charges. Setting aside such findings and holding them for naught against appellant, as we do, operates to make the errors harmless and without injury in any way to him, as much so as if the jury had so found in his favor. Each charge alleged stands alone on the evidence respecting it. And the statute expressly requires that —
"The jury shall by their verdict say which cause they find sustained by the evidence before them, and which are not sustained."
Under this statute the trial court could have set aside and held for naught any of the special findings as without legal sanction, and still have rendered judgment on the charges sustained by proof and having legal sanction. It is not reasonable to imagine that a jury of sensible men would have based their special findings on evidence other than that pertaining to each special finding. Their verdict shows that their finding on each charge was based upon the particular evidence pertaining to that charge. A finding by the jury on one of the charges was that it was "not sustained by the evidence."
The next point made by the appellant is to the effect that the judgment and all the orders made in the proceeding are legally void because of the fact that the trial judge was a second cousin to one of the relators named in the original petition. It appears that the regular term of the district court for Titus county began on June 4, 1923, and adjourned *Page 582 on July 14, 1923. On June 20, 1923, the original petition in this removal proceeding was filed in the trial court, the first paragraph being as follows:
"Now comes the state of Texas, by the district and county attorneys of the Seventy-Sixth judicial district, in Titus county, Tex., on the relation of W. W. Mason, L. M. Cargile, W. P. Traylor (and naming nine others), complaining of J. J. Reeves, defendant, and represents that each of said relators and the defendants reside in Titus county, Tex., and have resided in Titus county, Tex., more than six months prior to the filing of this petition."
The petition was signed by the district and county attorneys. The same day, on the application of the relators, the judge granted an order, and had it entered in the minutes of the court, permitting the complaint to be filed, fixing June 29, 1923, as a day for trial, and directing the issuance and service upon defendant of citation and a certified copy of the petition. An order was also entered suspending the defendant from the office of sheriff during the pendency of the proceeding. The defendant was on that day served with citation and a copy of the petition. On June 27, 1923, the defendant filed an answer demurring to the petition and specially denying each and every allegation in the petition. On June 29, 1923, the day set for trial, by agreement of the parties the hearing was postponed until July 2, 1923. On July 2, "by agreement the case was continued until July 3, 1923." On July 3, 1923, the defendant filed a written suggestion that the trial judge was disqualified in the proceedings because related within the third degree to the relator, W. P. Traylor. "Thereupon," it appears in the record —
"the district attorney and the county attorney asked permission of the court to file an amended petition in said cause in which only the said district and county attorneys seek to prosecute this suit as relators, and in which several relators named in the original petition are eliminated and their names do not appear."
The court granted an order authorizing the amended petition to be filed. It appears that thereupon "the relators came and voluntarily paid all the accrued costs, amounting to $68, over to the clerk of this court." Then the defendant filed an amended original answer, consisting of a general demurrer, special exceptions, and a general denial. After the amended petition and the amended answer were filed "all parties announced ready for trial," and a jury was selected to try the case. The order, or bill of exception, recites that —
"Defendant had been given a copy of the amended original petition one week before this date [on trial on July 3], and the defendant did not ask to postpone or continue the trial of this cause by reason of any facts alleged therein, and all costs accrued to this date having been fully paid, and defendant had fully answered."
It is provided by law that a proceeding for removal from office for official misconduct "shall be conducted in the name of `The state of Texas.'" Article 6042, Rev.Stat. The proceeding must be instituted and prosecuted in the name of the state of Texas through the proper officer of the state. Staples v. State, 112 Tex. 61, 245 S.W. 639. As held in this case, supra, a private citizen is "not possessed of legal capacity or right to institute and maintain this suit." The legal effect is to make the state of Texas, and not any relator, the plaintiff in the cause. And no person, though a formal relator, has any private interest in the proceeding. It is only in a proceeding brought for the benefit of the relator primarily as a claimant to an office he is entitled to; that such relator has, legally speaking a private interest in the proceeding. A quo warranto proceeding for ouster for cause is simply a demand made by the state upon some officer to show cause why he should not be ousted from office because of, say, misconduct. As the cause of action is in the state of Texas for ouster from office for official misconduct, then appearance in the complaint by a private relator pertains only to form, and nothing but form. Consequently the relator Traylor and the other private relators could not be classed, within the meaning of the law, as "either of the parties to the cause," for the state of Texas in law would be the sole plaintiff. If, then, there was disqualification of the trial judge, it would rest upon the fact only that the relator, Traylor, though only formally joined in the proceeding, was nevertheless liable under the statute for costs and security therefor. This objection, though, was entirely removed by the subsequent proceedings in the cause. The district and county attorneys filed an amended petition prosecuting the cause as relators and dropping the private relators. The mere granting of leave to file an amendment is purely a formal order where nothing is decided, and one which an interested judge may enter. Cooley on Constitutional Lim. (7th Ed.) p. 595, states:
"Mere formal orders necessary to enable the case to be brought before a proper tribunal for adjudication, an interested judge may do; but that is the extent of his power."
And if upon the last amendment the appellant was entitled to notice or new service, it affirmatively appears that he, in effect, waived such service when he answered and "announced ready for trial." Appellant, as the record recites, "had been given a copy of the amended original petition one week before this date [of trial," and further, "the defendant did not ask to postpone or continue the trial of this cause." The statutory requirements that the proceeding be set for trial on a fixed date, and that notice be served on the officer, are matters that the appellant could waive. The statute fixes the *Page 583 date of trial at "not less than five days from date of service," in order to give the officer a speedy hearing and a reasonable time in which to prepare for the trial. No question or doubt is raised of denial of any legal right or injury to appellant when, as here, he voluntarily appeared in court, made answer, did not ask for postponement or continuance, and "announced ready for trial" on a complaint as amended, wherein the judge was not disqualified by relationship.
Appellant next insists that the court, in effect, submitted special issues to the jury in violation of the terms of the statute in respect to the form of the verdict. The court submitted a general charge to the jury in form as the statute prescribes. The appellant prepared a form of verdict for the jury, and submitted it to the court, which the court did not give, but himself prepared a form of verdict for the jury. The statute specially requires that —
"When there is more than one distinct cause of removal alleged, the jury shall by their verdict say which cause they find sustained by the evidence before them, and which are not sustained." Article 6043, Rev.Stat.
And merely to prepare a form of verdict so as to enable the jury to make findings in accordance with this statutory requirement would not violate the statute. The form, as prepared, left the jury free to make any finding upon the evidence that their own judgment dictated.
We have carefully considered the other assignments, and think that they should be overruled.
The evidence fully warrants such findings of the jury as to the charges concerning Ed. Milner as were shown to have accrued during the year 1923, during the second term of office. That the behavior was "in relation to the duties of his office" and "unlawful" and "willful" in its character, within the meaning of the statute, is fully shown in the evidence. The word "willful" is used in the sense of a conscious and intentional failure or refusal to perform or keep inviolate any duty imposed upon the officer by law. The said charges and findings just immediately considered would warrant the judgment entered by the trial court; and, basing the judgment of removal entirely upon these said charges, such as accrued during the second term of office, it is affirmed.