
    PARRISH v. RALLS et al.
    
    (Court of Civil Appeals of Texas.
    Nov. 20, 1910.
    Rehearing Denied Dec. 31, 1910.)
    1. Counties (§ 85) — Counts' Seat — Remo val — Geographical Center — Certificate of Land Commissioner.
    Rev. St. 1895, art. SI’S, relating to the establishment and removal of county seats, provides that, to remove a county seat from a point within five miles from the geographical center of the county to a point more than five miles therefrom, a two-thirds majority of all the votes cast at an election is necessary, but only a simple majority is essential to remove the county seat from a point without, to a point within, the five-mile radius from the center. Article 813 declares that the Commissioner of the General Land Office, on being notified by the county judge that a proposition is submitted to the people of the county or that it is desirable that the center of the county should be designated, preliminary to the removal of any county seat, shall from the maps, surveys, and other data in his office designate the center of the county, and shall certify the same to the county judge, who shall cause the certificate to be spread on the deed records of his county. Held, that since such certificate depended on surveys and objects called for in field notes, which were subject to change during passing years, it was intended that the commissioner should make such designation and certificates when ealied on to do so, and hence the fact, that the center of a county had been once certified by the commissioner did not preclude a subsequent certification on application to the county judge.
    [Ed. Note. — For other cases, see Counties, Dec. Dig. § 35.]
    2. Evidence (§ 83) — Presumptions—Countv Lines — Changes.
    Where, after the Commissioner of the General Land Office had once certified the geographical center of a county, a new certification was made by him on the application of the county judge prior to proceedings for a change of the county seat, and neither certificate was attacked for fraud or mistake, it must be presumed, especially when not clearly denied, that since the making of the first certificate there had been such changes in the maps, surveys, and data on file in the Land Office pertaining to the county from which such certificates were required to be made, as to change the location of the geographical center of the county.
    [Ed. Note. — For other cases, see Evidence, Dec. Dig. § 83.]
    Appeal from District Court, Crosby County ; Jos. A. P. Dickson, Judge.
    Suit by John R. Ralls and others against Pink L. Parrish. From an order granting a temporary injunction, defendant appeals.
    Reversed, and injunction abated.
    Graham & Dalton and J. W. Burton, for appellant. Cooper & Stanford, for appellees.
    
      
      For otter cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes
    
    
      
       Writ of error denied by Supreme Court.
    
   CONNER, C. J.

This is an appeal from an order granting a temporary injunction. The petition therefor sets out that the petitioners are taxpayers and owners of real estate in the town of Emma, Crosby county; that the defendants constitute the commissioners’ court of Crosby county, of which Pink L. Parrish is the county judge, and the others commissioners ; that Emma for many years had been the duly established county seat of Crosby county; but that on August 8, 1910, an application, signed by the requisite number of freeholders, was filed with said county judge, requesting an election to determine whether the county seat should be removed from Emma to Crosbyton; and that the election was ordered for September 17, 1910, and resulted in a total vote of 318, of which Emma received 120 and Crosbyton 198 votes. The petition further alleges that on August 8, 1910, said county judge had become financially interested by virtue of contracts with the owners of the site to convey to him certain town lots in Crosbyton in order to induce said Parrish to become a partisan therefor; that the relation between the county judge and the owners of Crosbyton was fraudulent and concealed from the public; that at and before said order for election the center of Crosby county had been fixed by certificate from the Commissioner of the General Land Office as provided in the Constitution and laws of the state, so as to exclude the site ■of Crosbyton and include Emma within a radius of five miles from said center; that the certificate of the commissioner had been My recorded in Crosby county and acted upon since September, 1891, as was well known to said county judge; that nevertheless said Parrish, “with the fraudulent intent and purpose of procuring another and different designation of the center * * * and of carrying out his fraudulent purpose of aiding and abetting the owners of the town site of Cros-byton, and making same the county seat of Crosby county,” by letter of date August 13, 1930, requested the Commissioner of the General Land Office to designate the center of Crosby county, the commissioner being thereby led to believe that no previous designation had been made; that on August 26, 1910, the commissioner made a plat, certifying thereto, which designated a point as the center of the county more than five miles from Emma, but less than that distance from Crosbyton. It was further alleged that between the first and second certificates there had been no change in the outer boundary lines of the county; that at the time of the issuance of the last certificate the commissioner was ignorant of the former certificate, and upon later being informed sought by letter to withdraw the certificate last sent; but that said Parrish declined to return it and caused its record, and will, unless prevented, act thereon in canvassing the votes and declaring the result of said election. Wherefore it was prayed that said last-mentioned certificate of the Commissioner of the General Land Office be declared null and void, and that said judge and commissioners be enjoined from considering the same in declaring the result of the election.

Appellant insists that appellees have no such interest as will entitle them to the relief extended, or that, if so, the question presented is a political one, which the court cannot consider in this form of action. But whether these contentions should be sustained upon the authority of Townsen v. Mersfelder, 49 Tex. Civ. App. 289, 109 S. W. 420, and Robinson v. Wingate, 36 Tex. Civ. App. 65, 80 S. W. 1067, and Id., 98 Tex. 267, 83 S. W. 182, or the case distinguished from those mentioned and the contentions denied because of the opinions in Norman v. Thompson, 96 Tex. 250, 72 S. W. 62, and Oden v. Barber, 129 S. W. 602, we need not determine; for, regardless of these questions, we are of opinion that the petition shows no sufficient grounds for an injunction.

It may be seen from the statement we have given that the petition fails to negative changes of lines of surveys within the outer boundary lines of the county, and fails to connect the commissioner with the fraud alleged, or in direct terms to deny the accuracy of the certificate of which complaint is made. Chapter 5, tit. 23, of the Revised Statutes of 1895 regulates the manner of the establishment and removal of county seats. In article 816 of that chapter it is provided, so far ás pertinent to this case, that, to remove a county seat from a point within five miles of the geographical center of a county to a point more than five miles therefrom, a majority of two-thirds of all the votes cast at the election is necessary, while it only takes a simple majority of the votes east to remove the county seat from a point without to a point within a five-mile radius from the center. It is also so declared in section 2, article 9, of the Constitution. The mode of ascertaining the geographical center is provided for in article 813, which reads: “The Commissioner of the General Land Office, upon being notified by the county judge of any county that a proposition is submitted to the people of such county, or that it is desirable on the part of the people thereof, that the center of such county should be designated, preliminary to the removal of any county seat, shall from the maps, surveys and other data on file in his office, designate the center of such county, and shall certify the same to the county judge of such county, who shall cause the same to be spread upon the records of deeds of his county.” This article of the statute is in accord with the express declaration of the section of the Constitution above cited, and the certificate of the commissioner, therefore, would seem to exclude any other method of determining the geographical center; but we are not prepared to hold that a certificate duly made and given is rendered void by the mere fact that a like certificate had been given in previous years. Inasmuch as the designation is to be made “from the maps, surveys, and other data on file” in the Land Office, and not by an actual survey, it would seem that the center must be determinable by reference to surveys and objects called for in field notes, and as these are subject to mutations during the passing years, that it was intended by the law that whenever called upon by the authority named in the statute, the commissioner should make designation and ceftificate of the center so as to relieve any uncertainty that from any cause may have arisen. The certificates under consideration are not exhibited in ap-pellees’ petition, so that we may determine the precise difference between them, or how the several center points as therein stated may be fixed on the ground; but neither certificate is attacked for fraud or mistake on the part of the commissioner, and it should therefore be presumed, we think, especially when not clearly denied, that, since the designation and certificate first made, there have been such changes in the maps, surveys, and data on file in the Land Office pertaining to Grosby county as authorized the general change of center point that the petition notes; otherwise, if accurately made, there would have been no material difference in the certificates. The law, as already indicat.ed, is flexible, general in terms, and contemplates an adaptation to changed conditions. It nowhere limits the people of a county, or the power of the commissioner, to a single original designation and certificate, nor does the law pronounce the consequence contended for in event more than one shall be made. If the acts of the county judge in making the request, and of the commissioner in making the designation, were legal, then neither the interest nor the motive of the county judge can be material.

We conclude that on the merits appellees were not entitled to an injunction.

The order therefore will, accordingly, be reversed, and the writ of injunction aoated.  