WILLIAMS v. CASTLEMAN, 247 S.W. 263

CURETON, C. J. This case is before us on certified questions from the honorable Court of Civil Appeals of the Second District. The facts of the case are taken from the certificate. On March 5, 1921, the commissioners’ court of Stephens county, by an order duly entered, declared that the city of Breckenridge, located in justice precinct No. 1, was a city of over 8.000 population; adjudged that another justice court was necessary in the precinct, and created another justice court for precinct No. 1, designating it as place No. 2. They then appointed appellant, C. T.

Williams, justice of the peace of precinct No. 1, place No. 2. In pursuance of this order and appointment, appellant gave bond, took the oath of oflice, and entered upon the active discharge* of the duties of the oilice.

The court in the order erecting the office declared, after considering the matter, and being fully advised, and from all the facts and evidence before them, that the city of Breckenridge had a population of over 8,000, that there was a necessity for the office, and that the administration of the law in the county hnd the service of the people of the precinct demanded and required the creation of said justice court. Appellee, 3. W.

Oastleman, was the duly elected and qualified justice of the peace of precinct No. 1, Stephens county, for the term ending in 1922, and was at the time these proceedings were begun in the active discharge of the duties of his office.

Shortly after appellant‘assumed the duties of the place to which he was appointed, ap-pellee brought this suit in the district court against him for injunction, alleging that ap-pellee was entitled to all the fees of office in justice precinct No. 1, and that no such office existed as that to which appellant had been appointed, for the reason that under the 1920 United States census Breckenridge had only 1,846 inhabitants, and that appellant was ineligible to hold the office of justice of the peace because at the time of his appointment he had not resided in the county or precinct for six months.

Appellee prayed judgment for the fees which had been previously collected by appellant, amounting to $300, and for an injunction restraining appellant from further acting in the capacity of justice of the peace. No allegations of fraud were made against the commissioners’ court in ascertaining any of the facts relative to or entering the order erecting the oflice in controversy.

The trial court considered the petition, answer, and evidence introduced, upon hearing for temporary injunction, and granted the temporary injunction, because, as found by him, appellant had not resi'ded in the precinct six months, and was therefore ineligible to hold the oflice. Appeal is from this order of the trial court.

The evidence showed that the allegations of plaintiff’s petition were true, with the following modifications: The commissioners’ court never at any time prior to the erection of the office in controversy made any official canvass or enumeration of the population of Breckenridge, and made no estimate thereof, other than to talk individually with the postmaster of Breckenridge and the secretary of Ihe Chamber of Commerce concerning the probable population, and considering newspaper editorials, etc., that came under their individual notice.

The court assumed and took judicial knowledge that the city of Breckenridge was a city of over 8,000 inhabitants, and based the order creating the office here in controversy upon said assumption and judicial notice and what the individual members of the court knew about the,population of Breeken-ridge. The commissioners’ court were satisfied that it was a fact that Breckenridge at the time they created the oflice was a city of more than 8,000 population. Other facts are stated in the certificate, but the foregoing is sufficient for the purposes of this opinion.

Upon this s.tate of facts the Court of Civil Appeals certifies the questions which follow: “

(1) Were the commissioners’ court of Stephens county authorized under the law and Constitution to create the oflice of justice of the peace, precinct No. 1, place No. 2_? “

(2) If they were so authorized, did they follow the proper method of determining the population of Breckenridge, and .can that determination and order be collaterally attacked? “

(3) Is injunction a proper remedy for the determination of the legality of' the acts and orders of the commissioners’ court herein, and the legality of the appointment of the respondent to said office? “

(4) If the commissioners’ court were authorized to create the office, were they authorized to fill it by appointment, pending a general election?” The questions will be discussed and the answers made in the order presented in the certificate. This involves a construction and

interpretation of sections 18 and 28 of

article 5 of the state Constitution.

Section 18 reads as follows: “Each organized county in the state, now or hereafter existing, shall be divided from time» to time, for the convenience of the people, into precincts, not less than four and not more than eight. The present county courts shall make the first division. Subsequent divisions shall be made by the commissioners’ court, provided for by this Constitution.

In eacli such precinct there shall be elected, at each biennial election, one justice of the peace and one constable, each of whom _ shall hold his office for two years and until his successor shall be elected and qualified; provided, that in any precinct in which there may be a city of 8000 or more inhabitants, there shall be elected two justices of the peace.

Each county shall in like manner be divided into four commissioners’ precincts, in each of which there shall be elected by the qualified voters thereof one county commissioner, who shall hold his office for two years and until his successor shall be elected and qualified.

The county commissioners so chosen, with the county judge as presiding officer’, shall compose the county commissioners’ court, which shall exercise such power and jurisdiction over all county business, as is conferred by this Constitution and the laws of the state, or as maybe hereafter prescribed.” The fundamental proposition relied on by the appellee is stated in his argument filed in the Court of Civil Appeals as follows: “Whenever the taking effect of any law is made to depend upon the number of population of any locality, and the law itself makes no provision for the method of determination and ascertainment of the number of population of said locality, then such population is determined solely and only by the most recent United States census.” From this it ⅛ apparent that the first question presented is one merely of the construction and

interpretation of

section 18, art. 5, of the Constitution, for the purpose of determining whether or not this

section confers upon commissioners’ courts the power to ascertain the population of any city in any of the justice precincts into which counties may be divided. The primary rule of interpreting and construing the Constitution is to ascertain the intention of the people in adopting it, and give effect to that intention. 2 Sutherland on Statutory Constructiop (2d Ed.) §§ 369, 370; Ellis County v. Thompson, 95 Tex. 22, 31, 64 S. W. 927, 66 S. W. 48; Cboley’s Constitutional Limitations (6th Ed.) 69.

In determining the intention we may, of course, examine previous Constitutions¡ as well as the journals of the convention which framed the Constitution. 6 Ruling Case Law,* p. 50, § 45.; Cooley’s Constitutional Limitations (6th ¿d.) 80. The history of

section 18, art. 5, of our present Constitution begins with the Constitution of the Republic of Texas.

Section 2, art. 4, of the Constitution provided that the Republic should be divided into' “convenient judicial districts, not less than three, nor more than eight.”

Section 11 of the same

article authorized the Congress to divide the Republic into “convenient counties”; while

section 12 related to justices of the peace, declaring: “There shall be appointed for each county, a convenient number of justices of the peace.” By these sections the number of judicial districts, counties, and justices of the peace were left to the discretion of the legislative department of the government, subject to certain! limitations specified in sections 2 and 11 of said article. 1 Gammel’s Laws, pp. 1073, 1074. By

an act approved December 20, 1836, the Congress of the Republic provided for the election of two justices of the peace in each district; the districts being defined to be “each militia captain’s district.” 1 Gam-mel’s Laws of Texas, p. 1201. It is evident from the legislative enactment that the Legislature considered itself as having power, under the Constitution, to determine the appropriate division of each county into precincts, and the number of justices necessary for each precinct.

It is plain, however, that all actions by either the legislative or executive authorities in dividing the Republic into judicial districts, counties, and justice precincts, and fixing the number of justices necessary therefor, were to be governed by the primary purpose declared in the Constitution of the Republic, to wit, the “convenience of the people.” The governing phrases, “shall be divided into convenient judicial districts,” “the Republic shall be divided into convenient counties,” and “there shall be appointed for each county a convenient number of justices of the peace,” can have no other

interpretation. The Constitution of 1845 used language similar to that of the Republic, except the limitation as to the number of judicial districts was omitted, and justices of the peace were required to be elected by the people. 2 Gammel’s Laws, pp. 1295, 1285, 1286. By

an act approved May 13, 1846, there were established under this Constitution the county courts of the state, composed of the Chief Justice and four commissioners, who were styled “county court,” all of whom were to be elected by a vote of the people. To this agency was confided the division of the counties “into convenient precincts for the election of justices of the peace.” 2 Gammel’s Laws, p. 1642. •By

an act approved two days previous to the foregoing, the Legislature provided for the election of two justices of the peace in each precinct of the several counties of the state. 2 Gammel’s Laws, p. 1604.

We thus see that by the Constitution of 1845 the legislative discretion to determine the number of justice precincts in each county was not exercised by that body, but was confided, without limitation, to the commissioners’ court of each county; but the authority conferred upon this agency was to be exercised “for the convenience of the people.” The Legislature, however, fixed the number of justices of the peace who should preside in each precinct.

The Constitutions of 1861, 1866, and 1869 contained substantially the same language as that contained in the previous Constitutions named, except that the Constitution of 1869 provided for the division of each county into five justice precincts, and the election of one justice in each precinct. 5 Gammel’s Laws, pp. 11, 12, 21, 869, "878, S65; 7 Gammel’s Laws, pp. 411, 414, 415, 423. On September 11, 1875, when the constitutional convention which framed our present Constitution was in session, Hon. Joel W.

Robinson, a member of the convention from Fayette county, offered the following resolution: “Resolved that each county in the state be divided into as many justice precincts as the convenience of the population may require.” Journal of the Constitutional Convention of 1875, p. 64. . On September 21, Hon. William Neal Ra-mey, a member of the constitutional convention from Shelby county, offerea a resolution reading: “Resolved that each county in this state shall he divided into not less than five nor more than twelve districts, and in .each district there shall be elected one justice of the peace,” etc.

Journal of the Constitutional Convention, p. 186." These resolutions were referred to the judiciary committee, and formed the basis of

section 18, art. 5, as finally incorporated in the Constitution. The entire history of this subject shows that from the beginning the dominant constitutional purpose has been to create judicial districts, divide the state into counties, and these counties in turn into justice precincts, “for the convenience of the people.” Another conclusion, supported by the historical inquiry, is that the change from those provisions of previous Constitutions which left the number of the justices of the peace or justice precincts to the determination of the Legislature, without any specific limitations, except as to the number of justice precincts specified in the Constitution of 1809, to the language of

section 18 of

article 5 of the present Constitution, wherein the number of justice precincts is confided to the limited discretion of local authorities, was the result, not of any fortuitous circumstance, but of experience. The purpose to leave this determination to local authorities, having been reached from experience and mature consideration, must also be given a controlling effect in the

interpretation and construction of this

section of the Constitution.

The fact that the division of the state into judicial districts and counties and the number of justices of the peace in each county were originally all confided to state authorities, or ah agency to be selected by the Legislature, and that as to the first two the Constitution has continued the same, but as to the latter the power has been denied the Legislature, or any other state authority, and the commissioners’ court selected as the constitutional agency to divide the county into" justice precincts, evidences a specific purpose to remove the entire subject from the domain of state action, except such reasonable legislative action as might be convenient to render the exercise of the power more effective and uniform.

Commissioners’ courts having been granted power to divide their counties into justice precincts, and to determine the number mto which each county shall be divided, it follows that there is implied from the grant the additional power and authority to ascertain any fact necessary to make the exercise of the expressly granted power effective. Cooley’s Constitutional Limitations (6th Ed.) p. 78; Story on the Constitution (4th Ed.) § 480; City National Bank v. Presidio County (Tex. Civ. App.) 26 S. W. 775, 776; San Antonio & A. P. Ry. Co. v. State, 79 Tex. 264, 268, 14 S. W. 1063; Waterbury Co. v.

City of Laredo, 60 Tex. 519, 522; McCulloch v. Maryland, 4 Wheat. 316, 409, 410, 4 L. Ed. 603, 605.

To illustrate: Having been granted by the express language of the Constitution the power to determine the number of precincts into which a county shall be divided, and to divide it into these precincts for the convenience of the people, the commissioners’ court, by implication, have the necessary power to determine whether or not there are any people in any particular part of the county, the number of these people, their occupations, and any other fact which might or might not make it necessary to establish a justice’s court for the convenience of the people.

The Constitution has prescribed that the power of determining the number of justice precincts, and of dividing the county into them, shall be exercised “from time to time,” which means it has a potential existence at-all times, and the division,. rcdivision, or redotermination may be made at any time. State ex rel. Dowlen v. Rigsby, 17 Tex. Civ. App. 171, 43 S. W. 271, 273. In this case the question at issue was as to what time the commissioners’ court had authority to divide or redivide a county into justice precincts.

On this issue tlie Court of Civil Appeals, through Justice • Williams, who afterwards becamje Associate Justice of this court, after quoting

section 18 of

article 5 of the Constitution, said: ‘When the commissioners’ court was organized, in pursuance of the Constitution and the laws passed thereunder, it possessed all powers conferred by both. When the court was once established, no legislation was needed to enable it to exercise the powers given by the above provision, to divide the county into precincts. The direction is plain and simple, and without condition or restriction, except that as to the number of precincts. It is said that no procedure is prescribed by which the power is to be exercised.

If any was needed, the statute supplied it, when it required that the proceedings of the court should be recorded in its minute book. Rev. St. 1895, art. 1554. This was all that was necessary. The power to divide the county into justices’ precincts is also given by the statute, but not in terms so explicit as those used -in the Constitution. Rev. St. 1895, art. 1537. There can be no doubt that both Constitution -and statute confer the power, and the only question is as to its extent.

It is contended that a limitation upon the power is found in the constitutional provision fixing the terms of office of precinct officers, and that, since they are to hold for two years, it follows that the precincts cannot be changed during the terms, because" the power to alter them would practically enable the court to destroy the office. The language of the Constitution expresses no such limitation. The division is to be made ‘from time to time.’ The reason for the division is to be the convenience of tbe people; and the judge, both as to time and convenience, is the court.

The limitation contended for by appellant would require the insertion in the Constitution of a proviso which the court cannot read into it. The only limitation imposed serves to indicate the scope of the power. That limitation requires as many as four, and docs not allow more than eight, precincts. But for it the county might have been cut up into as many precincts as the court saw proper to establish. By it the intention is made more manifest that, within the limits, the court is to determine the number. As to the time of making the division, it is equally plain.

The language ‘from time to time, for the convenience of the people,’ clearly means that the convenience of the people, as judged by the court, shall control in determining the time when a division is proper.

The phrase ‘from time to time' repels the idea that it was the purpose to fix any particular time.” It is thus seen that there is no limitation on the time when the commissioners’ court may divide a county into justice precincts, and that, aside from the maximum and minimum prescribed in the Constitution, there is no limitation as to number. - The Constitution does not state how the power of division by the commissioners’ court shall be exercised, nor does the statute. From the quotation from the opinion by Judge Williams, supra, it is clear that no legislative action was necessary.

It is certain that, in the absence of reasonable legislative action, the commissioners’ court may perform the duty enjoined upon them in their own way, so long as that performance does not amount to a gross abuse of power, is not fraudulently exercised, or is not so grossly arbitrary as that, under principles unnecessary to discuss, it might be void and amount to no action. Bourgeois v. Mills, 60 Tex. 76.

Since it is clear that the determination of the facts necessary for action by the commissioners’ court is not made dependent on state legislative action, it is inconceivable that it should be made dependent upon federal action, in the form of the United States census, unless the Constitution expressly so stated, which is not the case. There is no part of the duty enjoined by

section 18, art. 5, on the commissioners’ court which may he performed without considering fhe population, occupations, and industries, not Only of the county, but of each contemplated subdivision of the county; and to say that the commissioners’ court must follow the census reports, which are issued only every 10 years, is to destroy the very purpose of the power conferred on the commissioners’ court to divide the couuty from time to time into a sufficient number of justice precincts for the convenience of the people. It is plain from

section 18, art. 5, of the .Constitution that ⅜ prime purpose in not fixing definitely the number of justice precincts in any county, and the number of justices in any particular precinct' was, as it states, “the convenience of the people” ; that is, to give to the commissioners’ court some discretion so that the number of precincts may be made to meet the changing needs of the people. The object of the Constitution in providing for two justices of the peace in precincts containing 8,000 or more inhabitants is the same as that declared in the previous paragraph of the same

section — that is, for the convenience of the people. No method of determining the population is given in this

section or elsewhere in the Constitution. The determination of the population by some authority is necessary to set in motion the process by which two justices are to be elected, or a vacancy in the office filled by appointment. The Constitution contains no express direction, either to the electorate or to the appointive power, as to how or when this question of population is to be determined, nor is any provision made in the statutes therefor. Yernon’s Complete Texas Statutes, arts. 2241, 2286.

But legislation was not necessary to enable the commissioners’ court to exercise any of the, powers given in this provision of the Constitution. State ex rel. Dowlen v. Rigsby, 17 Tex. Civ. App. 171, 43 S. W. 271. It is true that the Rigsby Case, cited above, related to the division of the county into justice precincts; but the provision under which the commissioners’ court acted in that ease is a part of the same

section which provides for two justices in precincts containing cities of 8,000 or more inhabitants. Both provisions relate to the number of justices which each county may have, and the basic purpose of each is the convenience of the people.

The ascertainment of the number of precincts into which any county shall be divided necessarily involves a consideration of the population; and the finding of fact as to whether or not any particular subdivision of the county contains a city of 8,000 or more inhabitants involves the exercise of no greater power than does the determination of the population of any particular portion of the county for the purpose of incorporating it in any particular precinct, and is equally as necessary to effectuate the dominant constitutional purpose to establish a sufficient number of courts for the convenience of the people.

If the commissioners’ court is restricted to population, as determined by the United States census reports, available but once in 10 years, then the express provision that the county is to be divided into precincts for the convenience of the people (a power which we have seen is potential and may be acted upon at alb times) is defeated by the suggested limitation of the census reports.

The census reports could, therefore, have no application to the .division of the county into precincts; and, if it is not to be appliéd and used for that purpose, then by what course of reasoning could we say that it must be applied, and it alone must be used, in determining the population of'any particular integral part of the precinct 1 Reading the entire

section together, and bearing in mind its history and its primary and fundamental purpose as shown by that history, we believe that the entire subject is confided to the commissioners’ court, and that the court of any particular county is empowered to divide it into precincts, and to •designate or afterwards determine which of these precincts 'contains cities of 8,000 or more inhabitants. The case of Brooke v. Dulaney, 100 Tex. 86, 93 S. W. 997, relied on by the appellee, relates to other and different sections of the Constitution, and has no application here.

In that case the governmental unit, to wit, the county, was the creation of the Legislature under the Constitution, and the Constitution not having in express language defined the method of ascertaining the population of counties, and that prescribed in that instance by the Legislature being so unreasonable or so unrelated to the subject as to be void, there existed no other authority by which the population was to be determined, except that of the United States census".

And, since that was the authority provided for in the case of another county office, this court held that the census report was that which must govern with reference to the offices of district and county clerk, which were the ones there involved.

The offices of county and district clerk had both been in existence in the county for 30 years, and it was agreed that during that time the county had a population exceeding 8,000; and what this court in realty held was that the unreasonable method prescribed in the statute for ascertaining the population could not be employed to reduce this population and destroy one of the offices.

In the case before us the commissioners’ court, by virtue of the express provisions of the Constitution, creates the justice precinct, the governmental unit, having regard for the convenience of the people, in which the court must necessarily consider the question of and ascertain within reasonable limits the population of the county, and of each precinct into which they may divide it.

Until this is done, no justice of the peace can be elected or appointed; and the number to be elected or appointed depends, not only upon the number of precincts, but the existence in any of them of a city of 8,000 or more inhabitants. The whole matter is, as heretofore stated, confided to the commissioners’ court; and, since the potential power to make the decree and finding at all times precludes the thought that the court must be governed by the United States census, it makes clearly inadmissible the doctrine of the Dulaney Case.

Section 18 of

article 5 of the Constitution, the provision before us for review, in part declares that the commissioners’ court “shall exercise such powers and jurisdiction over county business as is conferred by this Constitution and the laws of the state, or as may be hereafter prescribed.” Under this provision and the statutes generally regulating commissioners’ courts, these courts, when acting within the sphere of their powers, must be regarded as courts of general jurisdiction. Williams v. Ball, 52 Tex. 603, 609, 36 Am. Rep. 730; Bradford v. Moseley (Tex. Com. App.) 223 S. W. 171, 173; Padgett v. Young County (Tex. Civ.

App.) 204 S. W. 1046, 1052; Busch & Co. v. Caufield (Tex. Civ. App.) 135 S. W. 244, 245; Gaines v. Newbrough, 12 Tex. Civ. App. 466, 34 S. W. 1048; Callaghan v. Salliway, 5 Tex. Civ. App. 239, 23 S. W. 837; Vogt v. Bexar County, 16 Tex. Civ. App. 567, 42 S. W. 127; School Trustees v. Farmer, 23 Tex. Civ. App. 39, 56 S. W. 555. Having authority to determine whether or not any justice precinct into which they may have divided the county contains 8,000 or moré inhabitants, the finding of the commissioners’ court as to that fact, in the absence of fraud, cannot be collaterally attacked. Authorities supra; Wright v.

Jones, 14 Tex. Civ. App. 423, 38 S. W. 249; Id., 93 Tex. 678; Gaines v. Newbrough, 12 Tex. Civ. App. 466, 34 S. W. 1048; Id., 93 Tex. 660; State v. Goodwin, 69 Tex. 55, 5 S. W. 678; Ewing v. State, 81 Tex. 172, 178, 16 S. W. 872; Scarbrough v. Eubanks, 93 Tex. 106, 53 S. W. 573, 574; Thompson et al. v. State ex rel. Donley, 23 Tex. Civ. App. 370, 56 S. W. 603; Parker v. Harris County Drainage District (Tex. Civ. App.) 148 S. W. 358, 360; McCormick v. Jester, 53 Tex. Civ. App. 306, 115 S. W. 278, 287.

According to the certificate, appellee in his petition made no allegations of fraud, nor was there any proof of fraud on the trial of the case. His attack on the judgment of the commissioners’ court is purely collateral, and cannot be maintained, as shown by the above authorities.

But granting that appellee could raise the issue as to whether or not there was a consideration of the question of population and as to whether or not it was correctly or sufficiently proven, the record shows that the court did consider the subject of population, and that they considered it in a manner consistent with the fair exercise of the authority conferred upon them by the Constitution. The information which the court acted upon, in so far as shown in this record, was plainly sufficient for them to act upon; and having so acted, even if upon appeal, their conclusion would not be revised.

The commissioners were citizens of the county; they knew all matters of common knowledge .with reference to Breckenridge; they made inquiry from reliable sources of information, and, clearly, could not shut their eyes to" what every one else knew. It is a matter of common knowledge, which, even this court judicially knows, that Breckenridge, previously but a thriving village, on the discovery of one of the great oil fields of the world adjacent to it, became, almost overnight, a city. Courts can no more shut their eyes to general facts of current history than can other men.

They must judicially know what all men commonly know. The commissioners’ court had judicial knowledge of what the census reports showed as to the population of Breckenridge at the time the ceifsus was taken, and they knew in the same way of the increase of population in Breckenridge since the previous census. Chamberlayne’s Laws of Evidence, vol. 1, §§ 731, 738, 792, 794, 795, 804, 806 ; 23 Corpus Juris, p. 163, § 1988; Salt Lake City v. Board of Education, 52 Utah, 540, 175 Pac. 654, 658; Times Printing Co. v. Star Pub. Co., 51 Wash. 667, 99 Pac. 1040, 16 Ann.

Cas. 414; In re Board of Rapid Transit Com’rs, 128 App. Div. 103, 112 N. Y. Supp. 619, 636; State ex rel. Crow v. Page, 107 Mo. App. 213, 80 S. W. 912; Ruckert v. Richter, 127 Mo. App. 664, 106 S. W. 1081. The Constitution does not define what evidence they shall consider, nor the extent of the information necessary to authorize them to act. They are not required to rely upon the census reports, but may ascertain the population as'they would any other fact. State ex rel. McBride v. Long, 17 Neb. 502, 23 N. W. 337, 338.

In this case it was the duty of the mayor of any city which had “attained a population of 10.000 inhabitants” to ascertain and certify that fact to the Governor for the purpose of having the city classified under the statutes. The contention was made that the census reports governed.

The Supreme Court overruled this proposition, saying: “It is very clear that the mayor of such city is not required to rely upon the census taken under the statute, but may ascertain that fact in any other legitimate mode.” The judgment and discretion of the commissioners’ court in the instant case having been exercised in good faith and without fraud, not arbitrarily, nor in gross abuse of discretion, there is nothing in the record which would warrant an annulment of the order, either upon collateral or direct attack.

If it be said the commissioners’ court could not judicially know the exact population of Breckenridge, still, taking into consideration what they did judicially know, and the means of knowledge and investigation shown in the certificate, it is conclusive that when they acted they had sufficient facts before them to authorize the order which they entered. No principle of law is better settled than that acts of discretion and findings of fact on the part of public officers to which such power is confided, including commissioners’ courts, will not be reviewed on appeal. 22 Ruling Case Law, pp. 490, 491; Word v.

Schow, 29 Tex. Civ. App. 120, 68 S. W. 192; State v. Goodwin, 69 Tex. 57, 5 S. W. 678; Ewing v. State, 81 Tex. 172, 16 S. W. 872; Foster v. Hare, 26 Tex. Civ. App. 177, 62 S. W. 541; State v. Larkin, 41 Tex. Civ. App. 253, 90 S. W. 912, 916; Scarbrough v. Eubank, 93 Tex. 106, 53 S. W. 573; and authorities supra. Injunction- was not the proper remedy for determining the legality of the acts and orders of the commissioners’ court in issue here, nor the legality of the appointment of respondent to the office of justice of the peace.

The attack made upon the appellant in the court below is shown in the certificate, and it is unnecessary to again set out the issues. The trial judge stated that he granted the injunction because it appeared that appellant had not been a resident citizen of Stephens county for six months prior to the date of his appointment as justice of the peace. The appellant at the time suit was filed and injunction issued had taken the oath of office, given bond, and was in the active discharge of the duties of his office.

This renders inapplicable the injunctive relief provided for in articles 3082, 3083, and 3083a of Vernon’s Texas Statutes, 1922 Supplement (Acts of 1919, 36th Legislature, c. 13). The petition, considered in all its aspects, including its attack upon the eligibility of the appellant, must be held to be a suit for the purpose of trying the right of appellant to hold the office of justice of the peace. This makes quite a different case to that of Troilo v. Gittinger (Tex. Civ. App.) 230 S.

W. 233, relied on by appellee, where the party enjoined from trespassing upon the prerogatives of the public weigher was not an officer, and did not pretend to be one. Nor had appellant intruded himself into or interfered with appellee’s office. If appellant was not a justice of the peace, de facto or de jure, what he did or was doing was void. Whatever he did was as though nothing had been done.

If he tried a case and collected the fees, it was as though there had been no trial and no fees paid, and did not prevent the same case and the same issues from being tried in appellee’s court and the collection of legal fees by appellee. Therefore appellee showed no damages special to himself, and not common to the public at large. Undef such circumstances he was not entitled to equitable relief. Lawson v. Baker (Tex. Civ. App.) 220 S. W. 260, 265. Appellant was at least a de facto officer, and as such was not subject to injunction. 22 Ruling Case Law, pp. 588, 454; Aulanier v.

Governor, 1 Tex. 653, 667; Broach v. Garth (Tex. Civ. App.) 50 S. W. 594; McAllen v. Rhodes, 65 Tex. 348, 353; San Antonio v. Strumberg, 70 Tex. 368, 7 S. W. 754. While the purpose of the suit was in reality to determine appellant’s right to the office involved, as well as the actual existence of the office, appellee made no claim to the office occupied by appellant. Such being the state of the case, if appellant was ineligible, the - exclusive remedy to prevent his usurpation or unlawful occupancy of the office was by quo warranto. Revised Statutes, art. 6398. This suit, however, is not a quo warranto suit.

In no event, under the authorities cited, would an injunction be the remedy in this case. The commissioners’ court, by a valid order, having determined that there was in justice precinct No. 1 of Stephens county, a city of over 8,000 people, upon the official announcement of such fact, and the entry of the order, the office of an additional justice of the peace for the precinct, created by the Constitution, but awaiting the determination of fact by the commissioners’ court (the agency designated by the Constitution for such purpose), came into being, and thenceforward was an existing office.

Since the office came into existence and was not filled, it was vacant. 22 Ruling Case Raw, p. 437 et seq.; 23 Amer. & Eng. Ency. of Law, 349; People v. Chaves, 122 Cal. 134, 54 Pac. 596; State v. Maloney, 92 Tenn. 62, 20 S. W. 419, 422; Stocking v. State, 7 Ind. 326; State v. McMillan, 108 Mo. 153, 18 S. W. 784; In the Matter of the Fourth Judicial District, 4 Wyo. 133, 32 Pac. 850; In re Collins, 16 Misc. Rep. 598, 40 N. Y. Supp. 519. The commissioners’ court, being the constitutional and statutory agency selected to fill vacancies, had authority to fill this vacancy.

State Constitution, art. 5, § 28; Revised Statutes, art. 2288. The -questions certified are answered as follows: The first question is answered in (he affirmative; to the second we answer that the method pursued by the court, though not exclusive, was a proper method, and that the determination and order of the court cannot he collaterally attacked; the third is answered in the negative; and the fourth in the affirmative. tg=For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests aud Indexes