The nature of this suit is stated as follows by the Court of Civil Appeals:
"This was a proceeding instituted by the relator, Marsene Johnson, in the District Court of Galveston County, Texas, February 17, 1894, against S.S. Hanscom, as judge of the County Court of Galveston County, to compel him to execute and deliver, as such officer, to the relator, a warrant in favor of the latter upon the treasurer of said county for the sum of $203.40, alleged to be due and owing him by Galveston County for costs and fees earned by the relator and collected by said county in certain enumerated cases heard and determined before him as recorder of the city of Galveston and as ex-officio justice of the peace, wherein the accused were charged with and convicted of violations of the penal laws of the State of Texas."
Under amended section 16 of article 5 of the Constitution, this proceeding might properly have been instituted in the County Court. Before the amendment the District Court only had power to issue the writ of mandamus, except when it was necessary to enforce the jurisdiction of some other court. But we are of the opinion, that by virtue of the amendment the County Court has power to issue the writ in any case where a mere monied demand is involved, and the amount of that demand exceeds $200 and does not exceed $1000, exclusive of interest. Our reasons for the conclusion are given in the opinion on the motion for a rehearing in the case of Dean v. The State,88 Tex. 296. *Page 323
The judgment of a Court of Civil Appeals is final in every case, as a general rule, "when under the Constitution a County Court would have 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." (Rev. Stats., 1895, article 996.) This application does not show that this case comes within either exception.
Smith v. The City of Sherman, which was dismissed at the last term of the court, involved the same question, and we held, that we had no power to grant a writ of error in that case, but without a written opinion.
We have had some difficulty in determining the question of jurisdiction in this case, by reason of the fact that the county judge was the defendant in the suit. But our conclusion is, that although the county judge be a party to the suit, it may be brought in the County Court and a special judge agreed upon or appointed to try the case. See last clause of sec. 16, art. 5, of the Constitution.
The application is dismissed for want of jurisdiction.
Byron, Johnson, for plaintiff in error, in an argument in support of motion for rehearing, as to his powers and jurisdiction as ex-officio justice of the peace, cited: Code Crim Proced., arts. 41, 98, 99, 924, 930, 931, 935, 1010 to 1014, 1128; Charter of City of Galveston, art. 7, sec. 17.
On the duty of the county judge to issue and deliver him a warrant on the county treasurer for his costs in State cases: Sayles' Civ. Stats., 3600, 3609, 3586; City Ordinances, arts. 378, 379, 380.
That the provision in the charter of the city of Galveston requiring all fines, etc., to be paid into the city treasury was not intended to apply to State cases, but to city cases for violations of city ordinances alone, and that the disposition of fines collected in State cases is governed by the statute of the State: Code Crim. Proced., art. 1015.
That if the provision in the city charter had been intended to apply to moneys collected as fines it State cases, it would be a legislative appropriation to the City of Galveston, the same being a municipal corporation, of public moneys belonging to the State and county, which would be in violation of the State Constitution. (Const. of Texas, art. 3, secs. 51, 56.) And the ruling of the Court of Civil Appeals involved a question of the validity and constitutionality of statutes of the State, which gave the Supreme Court jurisdiction.
That the case was not one which could have been brought in the County Court: Const., art. 5, secs. 11, 16; Rev. Stats., arts. 1129, 1130; Taylor v. Williams, 26 Tex. 583; Glavecke v. Tijirina, 24 Tex. 669; Dicks v. Austin College, 1 White W. App. C.; McFaddin v. Preston, 54 Tex. 406; Davis v. State,44 Tex. 524; Railway v. Ryan, 44 Tex. 426 [44 Tex. 426]; Peters v. Duke, 1 White W., App. C., 304; Rogan v. Grady, 2 Willson, App. C., 260; Clack v. Taylor Co., 3 Willson, App. C., 201; Keuchler v. Wright, 40 Tex. 680 [40 Tex. 680]; Walker v. Bernard, 27 S.W. Rep., 726; Black's Law Dic., 748; Virginia v. Rives, 100 U.S. 323; 3 Black. Com., 110, 1 Cranch, 169; 5 Peters, 192; 12 Peters, 614; People *Page 324 v. Jameson, 40 Ill. 93; Ex parte Sibert, 67 Ala. 349; Jack v. Moore, 66 Ala. 184; Merrill on Mandamus, secs. 3-8, 203, 302; People v. Barnett, 91 Ill. 422.
Gresham, Jones and Wheless, for defendant in error.