dissenting.
I agree with the majority opinion in so far as it holds that the Legislature, under the provisions of Art. V, Sec. 1, has authority to establish the Court of Domestic Relations for Potter County and to define its jurisdiction. As said by this Court in Whitener v. Belknap, 89 Texas 273, 34 S. W. 594, “In order to determine whether the passing of such law is prohibited by the Constitution, we must first ascertain what has in fact been done by the Legislature by the enactment thereof”, and again, “The Legislature could not change the effect of this law by calling it the ‘Texarkana Civil and Criminal Court.’ The substance and not the name must govern in the construction of that law.”
This Court speaking through Judge Greenwood in the case of Turner v. Tucker, (1924) 113 Texas 434, 258 S. W. 149, in determining the kind and nature of “Texarkana Court of Law”, said:
“* * * And we have not the least doubt that a court empowered to discharge principal functions of the district court must be regarded as a district court in giving effect to the command of the amendment.” (of Sec. 1 of Art. 5 in 1891.)
Rochelle v. State, 89 Texas Cr. Ref. (1921) 592, 232 S. W. 838, referred to by this Court in the case above, uses language particularly applicable to the case at hand when Morrow, P. J., said:
“Manifestly, under the power given the Legislature by article 5, sec. 1, as amended in 1891, it would have the power to create a criminal district court, the language used being ‘the Legislature may establish such other courts as it may deem necessary.’ It must be observed that, from its inception, the criminal district court, as defined in the statute and as recognized in the Constitution, has exercised jurisdiction which is vested by the Constitution in the district courts: that is. the jurisdiction of *247felony cases and all misdemeanors, when by law the jurisdiction of them is transferred from the county court. The criminal district court has, in all cases, contained elements essential to the district court created by the Constitution, and had officers in common with the district court created by the Constitution. Recalling that by express provisions of the Constitution, the jurisdiction in felony cases is conferred upon the district court, and having in mind the legislative acts and constitutional provisions to which we have adverted, we are unable to classify the court in question as other than a district court, with jurisdiction limited to the trial of criminal cases.”
How much more evident is it that the Court of Domestic Relations of Potter County which has the Civil and Criminal Jurisdiction of a District Court as set out in the Act creating it, is unable to be classified as other than a district court with jurisdiction limited to the trial of certain civil and criminal matters.
Let us examine the present Act.
Sec. 1 merely names the Court.
Sec. 2 in first paragraph provides qualifications and compensation of the Judge of said Court.
The second paragraph sets out the jurisdiction of said Court as follows:
“Said Court of Domestic Relations shall have jurisdiction of all cases involving adoptions, removal of disability of minority, change of name of persons, delinquent, neglected or dependent child proceedings, and all jurisdiction, powers and authority now or hereafter placed in the district or county courts under the juvenile and child welfare laws of this State; and of all divorce and marriage annulment cases including the adjustment of property rights involved therein, as well as cases of child support, alimony' pending final hearing and adjustment of property rights as well as any and every other matter incident to divorce or annulment proceedings; and all other cases of Domestic Relations involving justiciable controversies and differences between parents or between them and their minor children which are now, or may hereafter be, within the jurisdiction of the district or county courts in the manner provided by Articles 2837, 2338-1, Revised Civil Statutes of Texas, 1925, Acts of the Regular Session of the 48th Legislature, 1943, Chapter 240, page 313, and Acts of the Regular Session of the *24849th Legislature, 1945, Chapter 35, page 52, and any other Article of the Civil or Penal Statutes of this State. It shall also have jurisdiction of all criminal cases involving crimes against children the maximum punishment for which does not exceed two (2) years in the penitentiary, or in which a fine or jail sentence may be imposed including wife and child desertion, contributing to the delinquency of a minor, enticing a minor from legal custody as provided under Articles 602, 534 and 535 of the Penal Code of this State; and provided that all cases above enumerated may be instituted in, or transferred to said Court.”
We notice that all of these matters of jurisdiction are matters over which the Constitution specifically gives a District Court jurisdiction except (a) jurisdiction under the juvenile or welfare laws of this State now or hereafter placed in the County Courts; (b) “all other cases of Domestic Relations involving justiciable controversies and differences between parents or between them and their minor children which are now, or may hereafter be, within the jurisdiction of * * county courts in the manner provided by” certain statutes, naming them; “all criminal cases involving crimes against children * * * in which a fine or jail sentence may be imposed,” (c) “contributing to the delinquency of a minor, enticing a minor from legal custody as provided under” certain articles named; and providing “that all cases above enumerated (in the paragraph as a whole) may be instituted in, or transferred to said Court.” All these are matters over which the County Court is given jurisdiction by Art. 5, Sec. 16, but which Art. 5, Sec. 22 permits the Legislature to change and to add to the jurisdiction of a district court.
Sec. 3 provides that when the court is organized and the judge shall qualify, the County Judge and the two District Judges of Potter County may transfer to said Court all cases of which the Court “is hereby given jurisdiction”, including all papers and orders, etc.
Sec. 4 provides that the Court “shall sit and hold court in Potter County” and provides for dockets and minutes; the appointment of a Clerk of the Court by the Juvenile Board under same terms and conditions as the appointment of the Judge, and makes the Clerk removable on same terms as the Judge; and that the Clerk shall hold office until his successor has qualified.
Sec. 5 creates a Juvenile Board composed of the Judge of two district courts now sitting in Potter County and the County *249Judge of Potter County, Texas, and for the compensation of the Juvenile Board.
Sec. 6 provides for the appointment of a Judge of said Court by a majority of the Juvenile Board, by and with the approval of the Commissioners Court, and for a term of 4 years and until his successor is appointed and qualified for each term, the Judge to be removed by the Juvenile Board “for incompetence, malfeasance, and misfeasance in office, or for conduct unbecoming a member of the Judiciary” upon complaint before the Board and after a fair and open trial by the Board. Provides that the Board and its members shall give counsel and advice to the Judge of the Court of Domestic Relations when deemed necessary and when sought by him, and to cooperate with the Judge in administering the Court.
Sec. 7 makes it the duty of all oíficérs, agents and employees of the child welfare board, county welfare office, county health officer, sheriff and constables within Potter County to furnish such services to the Court as shall be required.
Sec. 8 gives the Judge authority to appoint, with the approval of the Commissioners Court, such officers and investigators as may be necessary, and appoint a court reporter if needed, but must utilize services of the regular district court reporter and his assistants when possible and providing that the Commissioners Court shall pay salaries of all such officers, assistants and reporter.
Sec. 9 gives the Judge of the Coúrt power “to issue injunctions, temporary injunctions and restraining orders and such other writs as are now or hereafter may be issued under the laws of this State by district courts, when necessary in cases or matters in which said Court has jurisdiction, and also power to punish for contempt.”
Sec. 10 fixes the term of said Court.
Sec. 11 provides appeals from all civil cases to Court of Civil Appeals at Amarillo “as now or hereafter provided for appeals from district and county courts and in all criminal cases appeals shall be to the Court of Criminal Appeals.”
Sec. 12 provides: “The practice and procedure, rules of evidence, selection of juries, issuance of process and all other matters pertaining to the conduct of trials and hearings in said Court shall be governed by the laws and rules pertaining to *250district and county courts; provided that juries shall be composed of six (6) members.”
Sec. 13 makes the District Attorney of the 47th Judicial District and the County Attorney of Potter County responsible “for the prosecution of all cases of a criminal nature in said Court of Domestic Relations.”
Sec. 14 provides: “All cases, indictments, complaints and other matters over which the Court of Domestic Relations is herein given jurisdiction may be transferred to or instituted in said Court, but the Judge of said Court may transfer any such cases or matters to the county or district court having jurisdiction thereof under the laws of the State, to be tried in such court to which such transfer is made, with the permission and consent of the Judge thereof.
Sec. 15 provides that if any clause or part of the Act shall be held invalid, it is declared to be the intention of the Legislature that the remainder of the Act shall remain in effect and not be affected thereby.
Sec. 16 is the emergency clause.
It is the duty of this Court to uphold the Act of the Legislature in creating the Court of Domestic Relations unless some provision of the Constitution can be cited which clearly shows that the Act or parts thereof are invalid. State ex rel Rector v. McClelland, 148 Texas 372, 224 S. W. 2d 706(2), and authorities cited on p. 710 thereof.
I believe the Court as created is a district court with jurisdiction limited to Domestic Relations and within the power of the Legislature to create. The mere naming of it as a Domestic Relations Court does not change the fact that it has all of the powers of a district court as its jurisdiction is set out, with certain matters of a civil and criminal nature over which a county court has jurisdiction added to the Domestic Relations Court as is permitted by Sec. 22 of Art. 5. “A rose by any other name would smell as sweet.”
The Court must be a district court or it would be a void court. It has jurisdiction of felony matters. Our Constitution gives original jurisdiction in felony matters to the District Courts, and this has been the rule since the very beginning of our jurisprudence in Texas.
*251The language of Bendy v. Wilson, 142 Texas 460, 179 S. W. 2d 269, 151 A. L. R. 1217, by this Court, is particularly applicable to our construction of this Act regarding the jurisdiction of the Court of Domestic Eelations in criminal matters:
“The Constitution of Texas gives the Court of Criminal Appeals appellate jurisdiction of all criminal cases. Section 5 of Article V of the Constitution. That court has not construed this Act, and this court is compelled to construe same in the light of the opinions of the Court of Criminal Appeals.” l.c.275 1st. col.
I do believe there are certain provisions of the Act which are specifically prohibited by the Constitution and will proceed to point out such provisions.
This being a district court the Judge thereof must have the qualifications set out in the Constitution, Art. 5, Sec. 7, as amended in 1949. That the Judge is a District Judge is further borne out by the provisions of Sec. 6 of this Act providing that his term of office shall be for four years. District Judges are the only Judges holding a 4-year term under the Constitution. That he is considered a Judge there can be no doubt, for the duties devolved upon him are wholly judicial, except as to his juvenile duties and they constitute only a small part of the total duties; he may be removed for “conduct unbecoming a member of the judiciary”; he presides over criminal trials, divorce actions and adjustment of property rights, annulments of marriages, etc., etc., — all matters for a district court’s jurisdiction under our Constitution. By Sec. 9 of the Act he is given the power to issue certain named writs “and such other writs as are now or may hereafter be issued under the laws of this State by district courts,” etc. By Sec. 12 of the Act his court is governed by “The practice and procedure, rules of evidence, selection of juries, issuance of process and all other matters pertaining to the conduct of trials and hearings * * * pertaining to district and county courts.” Being a District Judge he must initially be appointed by the Governor and must stand for election at the first general election after his appointment (Art. 4, Sec. 12, State Constitution) and can be removed from office only as a District Judge is removed. (Art. 15, Sec. 6.) The Legislature is given the power and authority to determine his compensation by Art. 5, Sec. 7, as amended in 1949, and has done so in this Act. By the last sentence in Section 2 of the Act and by the first sentence in Section 14 of the Act it is provided that indictments may be returned into this Court. That could only be by a grand jury of this Court, Art. 1, Sec. 10, State *252Constitution, when a felony has been committed. Jurisdiction for indictments is given to the District Court by Art. 5, Sec. 8, State Constitution.
The Grand Jury and the Petit Jury in this Domestic Relations Court must contain twelve men each as required by our Constitution, statutes, and the adjudicated cases.
In order to meet the requirements of Art. V, Sec. 7, of our State Constitution, the provisions of the Act, Sec. 4, providing that the Court “shall sit and hold court in Potter County” must be construed as requiring the sessions to be held at the County Seat only, Turner v. Tucker (1924), 113 Texas 434, 258 S. W. 149, and not elsewhere. That part of the Act which attempts to create the office of Clerk of this Court must fall as in violation of Art. V, Sec. 9. The Clerk of the Court must be governed by the provisions of our Constitution as to his qualifications, appointment and removal.
I believe that the case of State ex rel Peden v. Valentine (1917), Tex. Civ. App., 198 S. W. 1006, writ refused, announces principles of law consistent with my opinion herein. In that case the Legislature had created the County Court of Tarrant County for civil cases, and attempted to provide for appointment by the Governor of the Judge thereof. Effort was made to sustain this appointment under Sec. 1 of Art. V of the Constitution. In disposing of this contention, Chief Justice Conner of the Ft. Worth Court of Civil Appeals said:
“Section 1, art. 5, of our Constitution as amended, authorizes the Legislature to provide courts other than those named in the Constitution, evidently to the end that the judicial power of the state, except as otherwise restricted, might be from time to time adjusted to exigencies that might arise in the course of the state’s expanding development. Hence we find that the Legislature has provided for special ‘district courts’ (see Acts 1913, pp. 53, 83, 439, and 441) ; criminal district courts (see V. S. Tex. Civ. Stat. arts. 2201c, 2229, 2235a) ; county courts ‘at law,’ as for Dallas and Harris counties (V. S. Tex. Civ. Stat. arts. 1786 and 1811) ; and county courts for ‘civil cases,’ as for Tarrant and Bexar counties (V. S. Civ. Stat. arts. 1799 and 1811-6). An examination of these several acts will show that the several courts so provided for are not courts ‘other’ than those named in the Constitution, in the sense that they are of wholly differing functions, but rather courts of the same kind, but with divided powers. To illustrate: These special district courts and county courts are given jurisdiction over parts of a *253whole originally committed to courts of the same class by the Constitution. No special district court is given power not originally committed to district courts, and no special county court is given powers other than were committed to county courts. The names and territorial limits given these special courts rather than the qualifying affixes and suffixes indicate the character of the courts. The affix ‘criminal’ or the suffixes ‘at law’ or ‘for civil cases’ have reference to the character of the divided jurisdiction given rather than to the character of the court. As named they are essentially district and county courts within the meaning of the Constitution. Of course, in a general sense, and perhaps for special purposes, all the courts named are state courts, and their presiding judges state officers. But we cannot for this reason disregard the district classification of our courts by the Constitution and laws where the classification is the point at issue. Numerous references might be made to constitutional and legislative acts that tend to show the sense in which the terms, ‘county court’ and ‘county judge’ are used. For instance, section 24, art. 5, of the Constitution provides as follows:
“ ‘County judges, county attorneys, clerks of the district and county courts, justices of the peace, constables and other county officers, may be removed by the judges of the district courts for incompetency,’ etc.
“Here is a plain declaration that county judges are among those who are designated as county officers. The words, ‘and other county officers,’ after naming certain ones, is a plain declaration that a county judge is a county officer. The act itself which creates the court seems to compel this conclusion. In section 12, c. 17, of the act of 1909 creating the court (1 V. S. Tex. Civ. Stat. art. 1810) it is provided that the judge may be removed from office for the same causes as ‘any other county judge,’ etc.
“If we are correct, as we think we are, in the foregoing conclusion, it would seem to follow without dispute that the judge of the county court of Tarrant county for civil cases is a county judge, a county officer as contradistinguished from a district judge or a state officer, and hence that appointment to that office needs no confirmation by the senate.”
By the same reasoning this Court of Domestic Relations for Potter County is essentially a District Court.
That part of the Act which I hold valid is sufficient to provide the relief for a court to handle domestic relations in Pot*254ter County as set out in the emergency clause, and as saved by Sec. 15 of the Act.
I would, therefore, reverse the judgments of the Court of Civil Appeals and of the trial court, and remand this cause to the district court of Potter County, Texas, for further proceeding in accordance with this opinion.
Opinion delivered June 28, 1950.