On Motion for Rehearing.
On appellee’s insistence that the office of county superintendent of public instruction provided for by article 2750, Vernon’s Sayles’ Civil Statutes, has a potential existence in each county in the state, and that appellee, as in the case under review, who was regularly elected.to the office, and possessing all of the qualifications required, is a de facto officer and entitled to the emoluments of the office for the term to which she was elected, we will briefly outline our view of that feature' of appellee’s contention.
If we are not in error in our construction of the above article that the office of county superintendent of public instruction depends for its existence upon the condition of the scholastic census at each general election, there would be no separate and independent office as is contemplated by the article when the scholastic population of the county as shown by the preceding census in a general election year falls below 3,000. In that event the office created or brought into existence by reason of the showing of the scholastic census likewise, by reason of the showing of the scholastic census, has no further existence, potential or otherwise, and that, by article 2763, “in each county * * * having no school superintendent, the county judge shall be ex officio county superintendent of public instruction.”
There seems to be an irreconcilable conflict of authority on the proposition as to whether or not it is possible to have a de facto officer in the absence of a de jure office. The two views on that question are stated in 22 R. O. L. 591, and many cases cited. We think we need not enter upon a discussion of that question; suffice it to say that, in our judgment, the instant ease does not present a question of an act of an officer whether dé facto or de jure. Here the office of county superintendent of public instruction as an office, in our judgment, terminated, and when such condition occurs the law, by statutory provision, enjoins the discharge of the duties of that office upon the county judge. The procedure here is a direct attack, not upon any act of appellee as an officer, but goes more to the question of the existence of the office rather than to any act of hers or her right to occupy it. Our view, as expressed in the opinion, is that, Presidio county not having created the office of county superintendent of public instruction by a vote of the people, the existence of that office, on the facts shown, terminated.
The motion is overruled.