On Appellant’s Motion for Rehearing.
NORVEL, Justice.Appellant has filed a motion for rehearing of his application to certify points of dissent to the Supreme Court. Two questions or, points are suggested in the motion to certify, the first question is one of fact rather than of law and consequently we adhere to our ruling insofar as that question is concerned. Liberty Film Lines v. Porter, 136 Tex. 49, 146 S.W.2d 982, 987; Perry v. Greer, 110 Tex. 549, 221 S.W. 931.
The second point suggested, that relating to alleged jury misconduct, does, however, present a question of law. Upon further consideration, it is our conclusion that we are required to certify this question to the Supreme Court.
It is not contended that the opinion of the majority rendered in this case is in conflict wjjh a prior decision of the Court of Civil Appeals or the Supreme Court, nor has this Court deemed it advisable to submit a question to the Supreme Court for adjudication under Rule 461, Texas Rules of Civil Procedure. Neither said Rule 461, nor Rule 462, R.C.P., is here involved. Appellant’s motion to certify is based solely upon Rule 463, R.C.P., and the only reason we certify a question to the Supreme Court is that in our opinion we are required to do so by the provisions of said Rule.
It is conceded that this is a case over which we have final jurisdiction %nd our original refusal to certify a question to the Supreme Court was based upon authority of Herff v. James, 86 Tex. 230, 24 S.W. 396, and cases following that decision. Upon further investigation, we have concluded that because of material changes made in pertinent statutory provisions since the date of those decisions which have to be carried forward into the Rules of Civil Procedure, the holding of Herff v. James is no longer applicable to the situation before us.1
*518In that case the Supreme Court was called upon to construe certain provisions of the Act of April 13, 1892, providing for the organization of the Courts of Civil Appeals. 10 Gammel’s Laws of Texas 389, Acts 22nd Legislature, 1st Called Session, p. 25.
This Act provided for two forms of certified questions, that is, the certificate of dissent and the “discretionary question” —discretionary in the sense that a Court of Civil Appeals was permitted ’to certify a question of law to the Supreme Court provided it deemed such course advisable.
Sections 32, 33, 34 and 35 of the original Act, Vernon’s Ann.Civ.St. arts. 1852-1854,' 1851, are as follows:
“Sec. 32. When any one of said civil courts of appeal 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.
“Sec. 33. When a certificate of dissent is sent up by any court of civil appeals, it shall be the duty of the clerk to send up a certified copy of the judgment of the court below, with a certified copy of the conclusion of facts and law as found by the court, and the questions of law upon which there is a division, and the original transcript if so ordered by the supreme court; and thereupon, if the supreme court so direct, the clerk shall set down the same for argument and notify the attorneys of record.
“Sec. 34. After the question is decided the supreme court shall immediately notify the court of civil appeals of their decision and the same shall be entered as the judgment of said court of civil appeals.
“Sec. 35. Whenever, in any case pending before the court of civil appeals, of which said court of civil appeals has final jurisdiction, there should arise an issue of law *519that is novel, or presenting a question of first impression to the court, and the court of civil appeals should deem it advisable to present the issue to the supreme court for adjudication, it shall -be the duty of the presiding judge of said court to certify the very question to be decided to the supreme court, and during the pendency of the decision by the supreme court the cause in which the issue is raised shall be retained for final adjudication in accordance with the decision of the supreme court upon the issue submitted.”
Section S of the original act is in part as follows: “The judgment of the courts of civil appeals * * * shall be conclusive on facts and law in the following cases * * *, to-wit: (1) any civil case appealed from a county court or from a district court when under the constitution a county court would have had original or appellate jurisdiction to try it, except in probate matters and in cases involving the revenue laws of the state or the validity of a statute.” Vernon’s Ann.Civ.St. art. 1821.
In Herff v. James, supra, decided December 7, 1893, the supreme court construed Sections 32, 33 and 34, above quoted, relating to certificates of dissent in relation to Section 5 of the Act which defined the jurisdiction of the courts of civil appeals and came to the conclusion that the supreme court did not have jurisdiction of a certificate of dissent arising in a case over which the jurisdiction of the courts of civil appeals was made final by said Section 5.
However, in Wallis v. Stuart, 92 Tex. 568, 50 S.W. 567, 568, decided in 1899, the Supreme Court directly held that it had jurisdiction to consider a question certified to it in accordance with the provisions of Article 1043, 1895 Revised Statutes, although the question arose in a case over which the jurisdiction of the court of civil appeals was final. The opinion points out that Article 1043 had its origin in Section 35 of the original act and distinguishes the two types of certified questions provided for by statute. In discussing Herff v„ James, the Supreme Court said:
“ * * * Since section 34 of the act mentioned (now article 1042 of the Revised Statutes) provided that the decision of this court should ‘be entered as the judgment of the court of civil appeals,’ it was held that sections 32, 33, and 34, in regard to certificates of dissent, did not apply to cases over which the jurisdiction of the court of civil appeals was final. In other words, the court was of opinion that there was an inconsistency in the two provisions, which should be reconciled by holding that the sections relating to certificates of dissent were not intended to apply to cases which were subject to final determination in the court of civil appeals. The questions before us arise, it is true, in a case in which this court has no power to grant a writ of error; but they are not certified under article 1040 of the Revised Statutes, but under article 1043. The latter article reads as follows: ‘Whenever in any case pending before the court of civil appeals there should arise an issue of law which said court should deem it advisable to present to the supreme court for adjudication, it shall be the duty of the presiding judge of said court to certify the very question to be decided by the supreme court, and during the pendency of the decision by the supreme court, the cause in which the issue is raised shall be retained for final adjudication in accordance with the decision of the supreme court upon the issue submitted.’ Under this article, the court of civil appeals is required, after the decision of this court upon the question, to enter its own judgment. This is not inconsistent with the finality, of its jurisdiction. * * jM> 2
*520The certification of questions by reason of conflict of decisions was first provided for in 1899. See Acts 26th Legislature, Regular Session, page 170.
These provisions were for the most part carried forward into the Revised Statutes of 1911 and 1925 and are now represented by Rules 462 and 478, R.C.P.
It is well settled by numerous authorities that in case of conflicting decisions a court of civil appeals may be compelled by mandamus to certify a question to the Supreme Court even though the case before it is one in which its decision is made final by statute. McCurdy and Daniels v. Conner, 95 Tex. 246, 66 S.W. 664; Jacobs v. Pleasants, 114 Tex. 242, 267 S.W. 251; 3 Tex.Jur. 315, Sec. 216.
As relating to the Supreme Court’s jurisdiction, the only distinction ever drawn between discretionary certifications and certifications because of conflicting decisions on the one hand and certificates of dissent on the other, is that pointed out in Wallis v. Stuart, supra, which is based on the provision that the decision of the Supreme Court “shall be entered as the judgment of said Court of Civil Appeals.”
This provision was carried forward from Section 34 of the original Act into the 1895 Revised Statutes as Article 1042, and into the 1911 Revision as Article 1622. It does not appear in the 1925 Revision, and was therefore repealed by Section 2 of the Final Title of the 1925 Revised Civil Statutes.
Apparently the following provision was substituted therefor: “When the Supreme Court decides a question certified to it by a Court of Civil Appeals, such decision shall be binding upon the Court of Civil Appeals.” Art. 1854, R.C.S. 1925, now Rule 479, R.C.P.
This rule and Rule 478 taken from the Act of 1899, above mentioned, appear in the Rules of Civil Procedure under Part IV thereof, entitled “Rules of Practice for the Supreme Court” and are apparently applicable to all forms of certified questions.
The wording of Rule 479, either in its present form, or former statutory form, has never been construed to have the same meaning as the now repealed direction that the decision of the Supreme Court shall be entered as the judgment of the Court of Civil Appeals. The same is likewise true of Rule 478.
The authorities which hold that it is the duty of a Court of Civil Appeals to certify a question or questions to the Supreme Court in cases of conflict of decision are now applicable to. cases in which a dissenting opinion is filed, provided, of course, that in either instance the question, or point of dissent, arises in a case over which the jurisdiction of the Court of Civil Appeals is final.
For the reasons Stated, appellant’s motion for rehearing of application to certify points of dissent to the Supreme Court will be granted to the extent here indicated. Our former order will be modified so as to comply with this opinion. The question relating to alleged jury misconduct will be certified to the Supreme Court. Pending disposition of this question by said Court, our order overruling appellant’s motion for rehearing will be set aside.
Appellant’s motion to certify is granted in part and in part overruled.
Appellant in support of his motion suggests a matter heretofore considered by us but not discussed in our former opinion. We therefore briefly notice it here.
Article 1620, Revised Statutes of 1911, relating to certificates of dissent was amended by the 38th Legislature (see page 72, Acts of said Legislature) by adding the following: “The provisions hereof shall apply to cases appealed from county *518courts as •well as to cases appealed from the district courts.” See also Art. 1852, R.O.S. 1925, and Rule 463, R.O.P. Since the article before its amendment referred to “any cause or proceeding,” the amendment seems tautological in nature. Appellant’s argument is necessarily based upon an amendment by implication of Section 1, Article 1591, R.O.S. 1911 (now Art. 1821, Vernon’s Ann.Civ.Stats.), which provided that the judgment of the Court of Civil Appeals should be final as to “Any civil case appealed from the county court or from a district court, when, under the Constitution, a county court would have had original or appellate jurisdiction to try it, except in probate matters and in cases involving the revenue laws of the State or the validity * ⅜ * of a statute.” It, however, appears that the same Legislature that amended Art. 1620, R.C.S. 1911, also amended Section 1 of Art. 1591, R. C.S. 1911 (see Acts 38th Legislature, page 110) by extending the exception contained in said section to cover “cases involving conflicts between decisions of the Courts of civil appeals or between a decision of a court of civil appeals and a decision of the supreme court.” Both amending Acts became effective on the same day — ninety days after adjournment of the Legislature. Further, both articles ys amended were brought forward into the 1925 Revision without material change as Articles 1821 and 1852, respectively. Section 22 of the Final Title of the 1925 Revised Civil Statutes provides said Revised Statutes “shall be construed to be an Act of the Legislature.” It would therefore seem that the circumstances and conditions which led to the holding in Herff v. James, supra, that the sections of the Act relating to certificates of dissent were procedural in nature and did not relate to nor affect the jurisdiction of the Supreme Court, were present in 1923 and also in 1925, although subsequent legislative enactments were involved.
Furthermore, in 1929 Article 1821, R.C. S. 1925, was amended by re-enactment in an amended form, so that a judgment of the Court of Civil Appeals is no longer-final in cases of boundary. The provisions of Section 1 of the article were re-enacted without change. Acts 41st Legislature, p. 68, Vernon’s Ann.Civ.St. art. 1821.
Upon adoption of the Texas Rules of Civil Procedure, the Supreme Court, in accordance with Section 3 of the Act relinquishing to the Supreme Court full rule-making power in civil judicial proceedings (Acts 46th Legislature, 1939, p. 201, Art. 1731a, Vernon’s Ann.Civ.Stats.) listed Article 1852, R.C.S. 1925, as a repealed article. Vernon’s Texas Rules of Civil Procedure, page 629. The provisions of the article were adopted as Rule 463, R.C.P. By such action the Supreme Court construed the provisions of the article and of the rule as relating solely to procedural matters and as not relating to the jurisdiction of the Supreme Court — a matter of substantive law. § 3, Article 1731a, Vernon’s Ann.Civ. Stats.
At the time the case of Herff v. James was decided, the Supreme Court was composed of Chief Justice Stayton and Associate Justices Gaines and Brown. The opinion was by Stayton, C. J. When Wallis v. Stuart was decided the members of the Court were, Chief Justice Gaines, the author of the opinion, and Associate Justices Brown and Denman.
In April, 1893, while the Court was composed of Stayton, C. J., Gaines and Henry, JJ., the Supreme Court, in Darnell v. Lyon, 85 Tex. 455, 22 S.W. 304, 960, opinion by Judge Gaines, answered a question certified to it by a Court of Civil Appeals, in accordance with the provisions of Section 35 of the Act of April 13,1892. Chief Justice Stayton dissented from the majority holding on the ground that the Supreme Court was without jurisdiction to answer the questions by reason of constitutional considerations. In view of this dissenting opinion, it is inferable that Chief Justice Stayton intended to place the decision of Herff v. James upon a somewhat broader basis than that stated by Judge Gaines in Wallis v. Stuart.
Although the difference in the wording of the statutes involved may seem to afford a narrow basis for the distinction pointed *520out in Wallis v. Stuart, such distinction has been recognized by numerous decisions of the Supreme Court, and must be regarded as well established prior to the passage of the 1925 Revised Civil Statutes. Wilson v. Giraud, 113 Tex. 3, 195 S.W. 848; American Nat. Ins. Co. v. Tabor, 111 Tex. 155, 230 S.W. 397; Gulf, C. & S. F. R. Co. v. Gorman, 112 Tex. 147, 245 S.W. 418; Morrow v. Corbin, 122 Tex. 553, 62 S.W.2d 641, 651. The case last cited contains a discussion of the constitutional considerations involved in the certification of questions, as well as an explanation of the rule of stare decisis as applied to a situation somewhat similar to that here involved.