The opinion
BOND, Chief Justice
(dissenting).
Appellees filed motion to certify the question of law under consideration in this case to the Supreme Court; first, on the ground that Associate Justice TOWNE YOUNG is not disqualified to sit in the case because of interest in the subject matter, therefore the appointment, by the Governor of Texas, of Honorable AUSTIN S. DODD, as Special Associate Justice to sit with this court, was not authorized, and that the judgment rendered by Associate Justice B. F. LOONEY and Honorable AUSTIN S. DODD is void; second,, because of the importance of the question, and, third, because of the dissenting opinion of Chief Justice JOEL R. BOND on the sole question of law, as to whether the surviving widow of Henry D. Lindsley, by the terms of his will, was put to an election to take under the will, or renounce the will and accept a dower of a 200-acre homestead and exempt personal property allowable under the Constitution and statutes of Texas; and whether or not she is entitled to both the bequest and the homestead and personal property.
In the alternative, appellees challenge the judgment as being void because of no legally constituted court rendering it, and because same is in conflict with numerous decisions of the Supreme Court of Texas; thus, manifestly erroneous, and should be vacated.
The majority overruled the motion for rehearing and refused to certify the question of law to the Supreme Court, holding, . in effect, that Associate Justice YOUNG was interested in the subject matter of the suit, thus disqualified to sit in the cause, that Justice LOONEY and Mr. DODD constituted a legal majority of the court rendering the decision, and that the Supreme Court has jurisdiction of the suit, all of which obviates the necessity of certifying the question. I am not in accord with the holding.
Associate Justice YOUNG is a member of the Masonic Order, a fraternal organization, and a director of the Texas Scottish Rite Hospital for Crippled Children, an inner-charitable benevolent organization of the Masonic Order, located at Dallas, Texas. The hospital, in nomine, is a party to this litigation, ’ being an unchallenged beneficiary under the will of Henry D. Lindsley. The bequest to the hospital is in no way involved in this suit. Justice YOUNG has no personal or pecuniary interest in the subject matter of the suit; but, because of his connection with the organization, and the disagreement of the other two regular members of the court, declined to act and certified his disqualification to the Governor of Texas; whereupon, the Honorable AUSTIN S. DODD was appointed Special Associate Justice to sit in judgment in this cause.
Section 11, Art. 5 of the Constitution, provides, among other things, that “No judge shall sit in any case wherein he may be interested.” The statute on the subject (Art. 15, R.C.S.1925) reads: “No judge or justice of the peace shall sit in any case wherein he may be interested.” Our Supreme Court, in the case of City of Oak Cliff v. State, 97 Tex. 391, 392 , 79 S.W. 1068 , said that the interest which will disqualify a judge, within the meaning of the Constitution and statutes, “must be direct and immediate,” and, in the course of the opinion, cites with approval, In re Ryers et al., 72 N.Y. 1, 15 , 28 Am.Rep. 88 , “that where a judicial officer has not so direct an interest in the cause or matter as that the result must necessarily affect him to his personal or pecuniary loss or gain * * * then he may sit.” In the case of Bramlett v. City of Dallas, Tex.Civ.App., 11 S.W.2d 209, 210 , the appellant, on motion for rehearing, challenged the qualification of two members of this court, to wit, B. L. Jones, Chief Justice, and B. F. Looney, *436 Associate Justice, because of interest in the subject matter. The two members of the court mentioned were owners of property in and taxpayers to the City of Dallas. The subject matter of the suit was an injunction to restrain the issuance and sale of bonds, payable out of a fund created by tax on all property in the City of Dallas. Associate Justice Looney, speaking for this court, said: “After a careful consideration of the subject-matter of plaintiff’s suit, and the relief he seeks, we have reached the conclusion that any decree this court may render will not necessarily affect these judges in a pecuniary sense. Their interest in the case is identical with that of other taxpayers to the city, is not direct, personal, or immediate, but contingent and remote, while it may be correctly said that they have an interest, incipient in nature, but not such as disqualifies a judge from sitting in the case.” In the case of Love v. Wilcox, 119 Tex. 256 , 28 S.W.2d 515, 518 , 70 A.L.R. 1484 , Chief Justice Cureton declined to sit, because of membership in the Democratic Party, and his candidacy for re-election. The suit was for mandamus to compel the Democratic Executive Committee, an inner-organization of the Democratic Party, to certify Mr. Love’s name to the various county chairmen of the State, as a candidate for Governor. In passing upon the disqualification of Chief Justice Cureton, Justice Greenwood, speaking for the Supreme Court, said: “Under the Texas Constitution, it is the duty of the judge to sit save ‘in any case wherein he may be interested, or where either of the parties may be connected with him, either by affinity or consanguinity, within such a degree as may be prescribed by law, or when he shall have been counsel in the case.’ Section 11, art. 5, Constitution. * * * The only conceivable interest of the Chief Justice in the questions here to be adjudicated is indirect, uncertain, conjectural, contingent, and remote. No man can say other than speculatively whether the court’s judicial act, whatever it may be, will redound to his advantage or detriment. On such a state of facts, the law is too well settled in this court to be open to dispute.” In that case, the conclusion was reached by the Supreme Court that Justice Cureton was qualified to sit, under the Constitution of Texas; accordingly, he participated in the decision of the cause. Another case which I think is in point is that of Davis v. State, 44 Tex. 523 : Soon after the adoption of the present Constitution, the Judge of the District Court of Jefferson County announced that he “was embarrassed” to proceed with the trial because of his personal interest in the question before the court. The Supreme Court said (re-affirmed and cited with approval in Love v. Wilcox, supra), paraphrasing the language: “The Constitution prohibits a judge from sitting in a case in which he may be interested. Const.1876, art. V, sec. 11. The statute is to the same effect. R.S., art. 1090 [now art. 15]. The interest of the learned judge presiding, however, was simply in the question involved, and not in the result of the suit. This was not such disqualifying interest as would prevent him from trying the cause, or would authorize the appointment of a special judge. The presiding judge not having been disqualified, it was his duty, however embarrassing, to have proceeded with the trial.” Grounds of personal interest are specified in the Constitution and statutes, and they have been held by the Supreme Court to be exclusive. Bias or prejudice does not incapacitate or disqualify a judge to try a case. Such is not provided by the Constitution or statute. Chief Justice Gaines, in City of Dallas v. Peacock [ 89 Tex. 58 , 33 S.W. 221 ], cited by the majority, supra, said: “The interest meant [Const, art. V, sec. 11] is a pecuniary interest; that is, such an interest as is capable of being valued by a pecuniary standard. * * * Taylor v. Williams, 26 Tex. 583 .”
So, in the case at bar, Justice YOUNG sat and heard the argument when submitted; he did not certify his disqualification until it was disclosed that Chief Justice BOND and Associate Justice LOONEY were not in agreement and that a third member was necessary to a decision. In certifying his disqualification, unbeknown to the other members of the court, or the attorneys for the litigants, Justice YOUNG filed his reasons: “The Texas Scottish Rite Hospital for Crippled Children is a party to this suit. I am a Director of such charitable corporation, and as such actively interested in and directing its affairs. The Hospital, in turn, is one of the beneficiaries under the will of Henry D. Lindsley. My Associates having disagreed over a proper disposition of the case, final decision by this Court would have devolved upon me. I felt a distinct embarrassment in under *437 taking to decide the issue; also was convinced of a personal disqualification by reason of the above connection. Accordingly, my certificate to this effect was presented to the Governor.” Manifestly, it is shown that the interest of Justice YOUNG in this suit is not a pecuniary interest and not a personal interest, as denominated by the Constitution and statutes of Texas, but was one in common with all members of the Masonic Order and, o‘f course, innumerable citizens of this State, interested in the charitable work of the Hospital for Crippled Children. Justice YOUNG’S sense of propriety as to sitting in the case, because of his connection with the hospital, probably created an embarrassing situation, but, as said in the Davis and Love cases, supra, such embarrassment is no disqualification under the laws of this State, to empower the Governor to appoint a special justice. The Governor of Texas has the power to appoint members of the Court of Civil Appeals and the Supreme Court, only when any member shall be disqualified under the Constitution and statutes (Art. 1815, R.S.). The Governor has no such power where members of said courts merely fail or refuse to act because of embarrassing circumstances. It logically follows that, irrespective of whether Justice YOUNG failed or refused to act, and whatever was his reason, short of disqualifying interest under the law— which is not present here — the Governor exceeded his power in appointing the special justice. Such appointment is a nullity, and the opinion and judgment of Justice LOONEY and Mr. DODD are without legal effect.
The issue involved must be settled, either by the legally constituted members of this court, or by certification of the law questions involved to the Supreme Court. Baldwin v. Baldwin, 134 Tex. 428 , 135 S.W.2d 92 . As I see this extraordinary situation, a stalemate exists; the judgment being a nullity, no jurisdiction exists in the Supreme Court by .writ of error, and it cannot be classed as the “law of the case,” observable or enforceable as a valid mandate to the court below.
Furthermore, it is well known to all members of this court that Justice LOONEY and Mr. DODD also belong to the Masonic fraternity, the parent Order of the Scottish Rite; and it might well be presumed that Judges LOONEY and DODD have the same reverence for the Order, sympathetic interest in the crippled children, and the same fine sensibilities as does Justice YOUNG. If Justice YOUNG is disqualified because of his “personal connection” with the Order, then certainly, by the same token, the other members of the constituted court are disqualified. Also, it will be observed that this suit does not involve the probate of the will of Henry D. Lindsley, and in no way affects the bequest to the Texas Scottish Rite Hospital for Crippled Children. The hospital will receive under the will (sec. 8) $10,000, irrespective of the outcome of this suit. Mrs. Lindsley’s right to a homestead and exempt personal property (the only question involved) in no way, directly or indirectly, presently or remotely, affects the interest of the hospital. Therefore, if it can be said that a judge, because of his connection with the hospital, has a disqualifying interest in the subject matter of a suit in' which the hospital is a party, such is not present in this cause. The disqualification of a judge on the ground of interest, falls only to cases where judicial functions are to be exercised. (30 Am.Jur. p. 769, sec. 54). Hence, in so far as the hospital is concerned, no judicial function was required to be exercised by Justice YOUNG or any member of this court. While it is difficult to lay down any general rule of construction of the term “party” as used to disqualify a judge, which should be applicable under all circumstances and to all persons, yet it may be stated that the term “party” should not be construed in a technical and restricted sense to mean merely a party to the record, but that it should be held to mean anyone who is pecuniarily interested directly in the result of the suit. Manifestly the hospital is not pecuniarily interested in the result of this suit, and not such a party as to disqualify its directors from acting in the case.
In this stalemate condition, what is the recourse? In the Baldwin case, supra, a like situation was presented to the Supreme Court: The Chief Justice of the Beaumont Court of Appeals was not disqualified, but declined or was unable to sit in that case and the other two members could not agree. Because of that extraordinary situation, the Supreme Court took jurisdiction only on certificate, and that, too, without an opinion of the Court *438 of Civil Appeals. That was its only recourse. So, in the case at bar, appellees’ motion to certify the question of law should be granted, else the regular members of this court be subject to a writ of mandamus by the Supreme Court, compelling the certificate.
Then, too, as I view the situation, it is incumbent upon this court, because of the dissenting opinion, to certify this cause to the Supreme Court. The majority opinion shows the case to be one over which this court has no final jurisdiction, and the case hinges solely upon a question of law, therefore it should be certified to the Supreme Court under Art. 18S2, Vernon’s Ann. Civ. St., which provides: “When a dissenting opinion is rendered by one judge as to a conclusion of law material to a decision of the case, the grounds of his dissent shall be entered of record by the dissenting member. Upon motion of a party or upon its own motion the court shall certify the point or points of dissent to the Supreme Court. * * * ” Obviously, this cause involves a question of law, the interpretation of the will involved, and the intent of the testator as revealed from the four corners of his will, as to whether the wife is put to an election; and the dissent is of record as to the conclusion of law material to the decision of the case. In 3 Tex.Jur. p. 312, sec. 213, the text reads: “Under the statute providing for certification where one of the judges of the Court of Civil Appeals renders ‘a dissenting opinion as to a conclusion of law material to the decision of the case,’ it is the duty of the court, upon its own motion or a motion of a party, to certify the question involved.” It is clear, I think, that this court is under duty to certify the question of dissent under the extraordinary circumstances that prevail in this cause, to the end that a stalemate may not exist and to confer jurisdiction upon the Supreme Court.
The judgment being a nullity impels me to dissent on any action taken by the purported created majority on the motion for rehearing. The judgment should be vacated, the question involved in the cause should, by all means, be certified to the Supreme Court. Irrespective of whether the judgment is a nullity, the importance of the question should impel the question of law involved to be certified to the Supreme Court. Ordinarily, I am not in favor of burdening our Supreme Court with certificates where our duty is to decide the question; but in view of the questions here involved and the - circumstances disclosed, our Supreme Court should settle the law material to the decision of this case.