On Rehearing. The motion for rehearing in this cause was overruled on the 6th day of October, 1916. Thereafter the appellants filed a motion to vacate the judgment in this cause, and to certify the case to the Supreme Court, and the court then, of its own motion, and that it might have opportunity to investigate the questions presented in the latter motion, recalled its action in overruling the motion for rehearing. The motion to vacate the judgment is based upon the proposition that Special Associate Justice Duffie was not legally appointed, and for that reason the judgment of affirmance rendered in this cause in the original opinion was thereby wholly void, as Justice Brooke was disqualified, and as Justice Middlebrook dissented from the affirmance of the cause by Justice Duffie and Chief Justice Conley.
When this cause was presented to the court originally, it was ascertained that Justice Brooke was recused. Associate Justice Middlebrook and Chief Justice Conley considered the cause, and could not agree as to its disposition. Thereafter a certificate to that effect, in accordance with the terms of the statute, was made and filed with the Governor, who thereupon appointed M. S. Duffie as Special Associate Justice to sit in said cause, and he thereupon duly qualified. The court being thus constituted, it again took up the consideration of the cause, and Chief Justice Conley agreed with Special Associate Justice Duffie in the majority opinion, Justice Middlebrook dissenting. We are of the opinion that there is no merit in appellants' contention that the court, as thus constituted, was an illegal entity. The Constitution of 1876, art. 5, § 11, on the question of the disqualification of appellate judges, provided:
"No judge shall sit in any case wherein he may be interested, or where either of the parties may be connected with him by affinity or consanguinity, within such degree as may be prescribed by law, or where he shall have been counsel in the case. When the Supreme Court or the appellate court, or any two of the members of either, shall be thus disqualified to hear and determine any case or cases in said court, the same shall be certified to the Governor of the state, who shall immediately commission a requisite number of persons learned in the law, for the trial and determination of said cause or causes."
Following this constitutional provision, Revised Statutes of 1879, art. 1040, which article was originally passed May 12, 1846, and readopted in 1879, provides as follows:
"No judge of the Supreme Court or Court of Appeals shall sit in any cause wherein he may be interested in the question to be determined, or where either of the parties may be connected with him by affinity or consanguinity, within the third degree, or where he shall have been of counsel in the cause; and when either court or any two of its members, shall be thus disqualified to hear and determine any cause or causes in said court, the same shall be certified to the Governor, who shall immediately commission the requisite number of persons, learned in the law, for the trial and determination of said case or cases."
Article 5, § 11, of the Constitution of 1876 was amended on September 22, 1891, and now reads as follows:
"No judge shall sit 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. When the Supreme Court, the Court of Criminal Appeals, the Court of Civil Appeals, or any member of either, shall be thus disqualified to hear and determine any case or cases in said court, the same shall be certified to the Governor of this state, who shall immediately commission the requisite number of persons learned in the law, for the trial and determination of such cause or causes."
Section 27 of the Acts of the Special Session of the Twenty-Second Legislature, in the year 1892 (Gammell's Laws of Texas, vol. 10, p. 30), providing for the creation of Courts of Civil Appeals, and which act is carried into the present Vernon's Sayles' Revised Statutes as article No. 1584, provides as follows:
"No judge of the Court of Civil Appeals shall sit in any cause wherein he may be interested in the cause to be determined, or where either of the parties may be connected with him by affinity or consanguinity within the third degree, or where he shall have been of counsel in the cause; and when the court, or any two of its members shall be thus disqualified to hear and determine any cause or causes in said court, that fact shall be certified to the Governor, who shall immediately commission the requisite number of persons, learned in the law for the trial and determination of said cause or causes."
It is to be seen that inadvertently this act followed the language of the Constitution of 1876, and the statute passed thereunder, instead of harmonizing with the provisions of the amendment of 1891, and the act is, to that extent, in conflict with the Constitution. The Constitution makes it the duty of the Governor to appoint a Special Associate Justice when any member of the Court of Civil Appeals is disqualified, while the statute says that the Governor may appoint only when the court or two members thereof are *Page 761 disqualified. This conflict, of course, must be resolved in favor of the Constitution. In the case of City of Austin v. Nalle, 85 Tex. 539,22 S.W. 668, 960, the court had occasion to consider a question with reference to the power of the Governor to make appointments in Courts of Civil Appeals in case of disqualification of a judge or judges, and said:
"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."
This section of the Constitution is self-executing, in that it contains within itself the means by which the right given may be enjoyed and protected, and the duty imposed enforced. Cooley, Const. Lim. (6th Ed.) p. 99. Under the above authorities, there can be no question but what Special Associate Justice Duffie was legally appointed by the Governor to sit in this cause, and that the court, as thus composed, was a duly and legally constituted court.
There is also no merit in appellants' contention to the effect, that it is incumbent on this court, because of the dissent of Justice Middlebrook, to certify this cause to the Supreme Court. The original opinion of the court shows the sole question for determination involved the location of boundary lines between lands owned by appellants and other lands owned by appellee. Therefore the case is one of boundary only, and one of which this court has final jurisdiction under the law. Article 1620, Vernon's Sayles' Texas Civil Statutes, provides:
"When any one of said Courts of Civil Appeals shall, in any cause or proceeding, render a decision in which any one of the judges therein sitting shall dissent as to any conclusions of law material to the decision of the case, said judge shall enter the grounds of his dissent of record; and the said Court of Civil Appeals shall, upon motion of the party to the cause, or on its own motion, certify the point or points of dissent to the Supreme Court."
This statute, it has been determined, does not apply to causes of which the Courts of Civil Appeals have final jurisdiction. Kidd v. Rainey,95 Tex. 556, 68 S.W. 507; Miller v. Mosely, 91 S.W. 651; Herf v. James,86 Tex. 230, 24 S.W. 396.
Appellant also contends that it was entitled to have this case orally reargued after Justice Duffie was appointed. We do not think so. The case was regularly set on the docket for submission, and was, on the day of its submission, orally presented to the court. The presentation of any further oral argument was a matter of grace or invitation from the court, and the court not deeming the issues involved in the case of sufficient importance, or of such a nature as to require further elucidation than was obtained from appellants' arguments in the briefs, did not extend an invitation for any further oral presentation, and did not think any necessary.
Motion for rehearing, and also motion to vacate and certify overruled.