(dissenting).
The Department of Public Safety does not predicate its appeal on the grounds now seized upon by the majority for reversal of cause. To the contrary, both parties hereto, in briefs and on rehearing, merely take opposite views of the following question of law: Whether the initial finding contemplated by Article 6687b, § 22, was to be made by the corporation (police) court, a judicial tribunal, or the judge of said court as an administrative official. It was decided in original opinion that the statutory words “mayor of the city, or judge of the police court, or a justice of the peace”, made the corporation court judge one of such administrative officers; a conclusion with which my associates still agree. All parties to this appeal having acquiesced in the foregoing construction of *667pleadings, any deficiencies therein become immaterial perforce of Rule 67, T.C.P., in part providing: “When issues not raised by the pleadings are tried by express or implied consent of the parties,- they shall be treated in all respects as if they had been raised in the pleadings.”
Source of above proviso is Federal Rule 15(b), 28 U.S.'C.A.: “Where issue was trie.d in habeas corpus proceedings by express or implied consent of the parties, although not raised by the pleadings, it was required to be disposed of by the court. Hamilton v. Hunter, D.C.Kan.1946, 65 F.Supp. 319.” Note 29, p. 611. “Where issue was not raised by pleading, but was considered at trial without objection, issue would be treated as if it had been raised in pleadings. Byers v. Fuller, D.C.Ky.1945, 58 F.Supp. 570.” Id., Note 28, p. 610. “Where issues not raised by pleadings are tried by consent of parties, they .are treated as if they had been raised in pleadings, and failure to amend pleadings to conform to evidence does not affect the result of trial. Hutchins v. Akron, C. & Y. R. Co., 6 Cir., 1947, 162 F.2d 189.” Id., Note 28, p. 609. “Where judgment indicated that point complained of on appeal was tried out by parties and acted upon by trial court, Court of Civil Appeals would presume that, the matter was properly before trial court under rule of procedure providing that issues not raised by pleading but tried out by consent of parties shall be treated as if raised by pleading. Rules of Civil Procedure, rule 67.” . Harris v. Harris, Tex.Civ.App., 174 S.W.2d 996, syl. 3. “Under Civil Procedure Rules, even though defendant wholly fails to file an answer, if the parties appear and try the case on certain issues without any objection of plaintiff, he cannot raise the issue of insufficiency of defendant’s pleadings for the first time on appeal. Rules of Civil Procedure, rules 67, 90.” Bednarz v. State, 142 Tex. 138, 176 S.W.2d 562, syl. 2.
The allegations of fact in said original petition of appellee Cox and his further statements as reflected in motion for ‘judgment are in conflict, it seems to me; but even if the initial hearing for suspension of driver’s license had been “before a licensed .examiner employee of the Department of Public Safety,” it constituted, nevertheless,a void proceeding as held by Judge Hartt. So why the case must be reversed for purpose of determining on which of two void alternatives it is to be ultimately tried, remains a puzzle to the writer. The law does not require the doing of a vain or useless thing.
I adhere to the majority’s original opinion of affirmance.