joined by Justice Harvey, dissenting.
I agree with the conclusion expressed in Justice Griffin’s dissenting opinion and in the opinion of the Court of Civil Appeals herein that the court attempted to be created by the Act of the Legislature under consideration is essentially and in substance a district court, and that the Act, as pointed out in those opinions, violates a number of the important mandatory provisions of the Constitution. The Act in substance differs little from that considered by this Court in Turner v. Tucker, 113 Texas 434, 258 S. W. 149, which attempted to create a. court named “Texarkana Court at Law”, and which Act was held to be repugnant to the Constitution and void because the court attempted to be created was a district court and according to the terms of the Act was to be held at a place other than the county seat. Both Acts undertake to empower the proposed court to discharge and exercise part of the constitutional jurisof the district court,- and because they- do - that they- must be regarded as district courts. See also Rochelle v. State, 89 Texas Crim. 592, 232 S. W. 838; Whitener v. Belknap & Co., 89 Texas 273, 34 S. W. 594.
But even if the “Court of Domestic Relations for Potter County” is not to be regarded as a district court, but rather as some “other court” than those set up by the Constitution, the Act is in my opinion unconstitutional and void, — because it undertakes to give to the court attempted to be created jurisdiction over certain cases, both civil and criminal, the jurisdiction of which is by the Constitution placed in the district courts, and at the same time in violation of the Constitution it undertakes to provide that those district court cases may be tried in the “Court of Domestic Relations for Potter County”, the judge of which is not to be elected by the people as the Constitution provides the judges of district courts must be elected (Art. V, Sec. 7), but is appointed by a Juvenile Board created by the Act; and because, according to the express terms of the Act, the judge of said court “shall have such qualifications as are fixed by the Juvenile Board”, when the Constitution pro*255vides that a district judge must be a citizen of the United States and of this State, must have resided in the district for two years preceding his election, and must have been a practicing lawyer of this State or a judge of a court of this State for four years next preceding his election (Art. V, Sec. 7) ; and because the Act provides that juries “shall be composed of six members”, whereas the Constitution provides that grand juries and petit juries in the district court “shall be composed of twelve men” (Art. V, Sec. 13) ; and because the Act provides merely that the “Court of Domestic Relations for Potter County” “shall sit and hold court in Potter County”, evidently intending that the court may sit anywhere in the county, whereas the Constitution requires that district court be held at the county seat (Art. V, Sec. 7). In other particulars, as pointed out in Justice Griffin’s opinion and in the opinion of the Court of Civil Appeals, the Act under consideration contradicts constitutional limitations set up in the Constitution for the organization of courts that try district court cases and for the trial of those cases, but whose mention are enough and of sufficient importance to show what fundamental changes would be wrought in the trial of those cases when tried by such a court as that attempted to be created by the Act before us.
It is true, as emphasized by the opinion of the majority, that there is no express prohibition in the Constitution of the creation by the Legislature of a court like the “Court of Domestic Relations for Potter County”. Nor does the Constitution in express terms forbid legislation which creates another court and gives it jurisdiction over certain civil and criminal cases, the jurisdiction over which is placed by the Constitution in the district courts, and which permits in that other court thus created the bringing of indictments for felonies by grand juries of “six members” and permits the trial of civil and criminal district court cases in that court before a judge whose qualifications are prescribed by a board and who is appointed by a board and not elected by the people, and by a jury composed of “six members”. But legislation may be forbidden by necessary implication from what is written in the Constitution as well as by express language. Lytle v. Halff & Bro., 75 Texas 128, 12 S. W. 610; Rochelle v. State, 89 Texas Crim. 592, 232 S. W. 838; Reasonover v. Reasonover, 122 Texas 512, 58 S. W. 817; Turner v. Tucker, 113 Texas 434, 438, 258 S. W. 149; State v. Gillette’s Estate (Com. App.) 10 S. W. 2d 984; State ex rel Peden v. Valentine, 198 S. W. 1006, 1009, application for writ of error refused; Arnold v. Leonard, 114 Texas 535, 540, 273 S. W. 799; Cooley’s Constitutional Limitations (8th Ed.) Vol. 1, pp. 351-359. Chief Justice Stayton’s opinion in Lytle v. Halff *256& Bro., 75 Texas 128, 132, 12 S. W. 610, contains this statement as to prohibition by necessary implication:
“A prohibition of the exercise of a power can not be said to be necessarily implied, unless looking to the language and purpose of the Constitution it is evident that without such implication the will of the people, as illustrated by a careful consideration of all its provisions, can not be given effect.”
When the rule as expressed by Chief Justice Stay ton is followed, the answer to the question as to the validity of the Act attempting to create the “Court of Domestic Relations for Potter County” is as simple as this: The Constitution gives to the district court jurisdiction of “all criminal cases of the grade of felony” and of “all cases of divorce”, including the determination of property rights, and of other named cases. (Article 5, Sec. 8.) The same Constitution carefully prescribes the qualifications of the district judges who try those cases and requires that they be elected by the voters. The same Constitution provides that grand juries bringing indictments for felonies must be composed of “twelve men” and that juries that try district court cases must be composed of “twelve men” and that the court that tries those cases shall sit at the county seat. It seems too clear for argument that careful consideration of the foregoing provisions of the Constitution must necessarily lead to the conclusion that the will of the people as expressed in its provisions with respect to the court that tries the important civil and criminal cases committed to its jurisdiction cannot be given effect but will be defeated if legislation is upheld which permits the trial of such cases in a court constituted and conducted without regard to those constitutional provisions, but in direct contradiction of them. The words of Presiding Judge Morrow, who wrote the opinion in Rochelle v. State, 89 Texas Crim. Pep. 592, 232 S. W. 838, 839, are most apt here. He said:
“It is true that by its terms, Article 5, Section 1, of the present Constitution does not limit the power of the Legislature to the creation of any particular court, but it is conceived that if, in the creation of a court, it confers jurisdiction which, under the constitution, belongs to the district courts, it would not be privileged to depart from the provisions named in the Constitution with reference to the jury.” (Emphasis added.)
Section 1 of Article V of the Constitution as amended in 1891, which in general terms authorizes the Legislature to establish other courts, was not intended to override or to nullify the explicit provisions of the Constitution as to district courts *257and district court cases which have been discussed. State v. Gillette’s Estate (Com. App.) 10 S. W. 2d 984, 987; Rochelle v. State, 89 Texas Crim. Rep. 592, 232 S. W. 838; Turner v. Tucker, 113 Texas 434, 258 S. W. 149. If the Act under consideration is held valid, then there may and doubtless will be, much other legislation setting up courts with authority to try even more district court cases, both criminal and civil, than those given to the “Domestic Relations Court for Potter County”, and to try them in courts where there is a judge appointed by a board and with qualifications prescribed by the board, and a grand jury or petit jury composed of “six members” (or there could be juries of two, three, four or twenty-seven members), and with the trial of cases held somewhere in the county. What then would become of the carefully drawn and long tested method set up in the Constitution for constituting the courts and the grand juries and petit juries for the trial of the most important cases, that is, those the jurisdiction of which is given to the district courts ?
Litigants having cases within the constitutional jurisdiction of the district court and persons indicted for felonies are entitled, as of right, by reason of the provisions of the Constitution, to have their cases tried in a court presided over by a judge having the qualifications and elected in the manner prescribed by the Constitution, and tried by juries “composed of twelve men” and at the county seat. They cannot be deprived of these constitutional rights by an act of the legislature setting up another kind of court for the trial of their cases.
The legislature cannot take away from the existing district court of Potter County all jurisdiction to try cases of which it has been given jurisdiction by the Constitution. It cannot take away from the district court of Potter County all divorce cases or all felonies which are crimes against children. Reasonover v. Reasonover, 122 Texas 512, 58 S. W. 2d 817. It would follow, therefore, if the Act attempting to create the “Court of Domestic Relations for Potter County” were sustained, that some district court cases, both civil and criminal, would be tried in the district court of Potter County before a judge having the qualifications of a district judge and duly elected, and before a jury of twelve men and at the county seat and that other district court cases, both civil and criminal, would be tried in the newly created court before a judge appointed by the Juvenile Board and having only such qualifications as the Board might prescribe, and before a jury of “six members” and at some place in the county. And the same is true of divorce cases, including the adjustment of property rights, and of felonies which are *258crimes against children. Some of these cases would be tried in the district court and some would be tried in the “Court of Domestic Relations for Potter County”, which would not be subject to the fundamental constitutional limitations which have been discussed. Section 1 of Article V as amended in 1891 was not intended to authorize such a condition of confusion and inequality in the administration of justice in important cases.
The opinion of the majority deals but casually with the implications that necessarily must be drawn from the particular provisions of the Constitution above discussed, saying that the acts of the legislature in establishing courts “should not be stricken down on the ground that they were violative of what might be conceived by vague implications to be the general spirit of the Constitution, or that they did not conform to the constitutional pattern for district courts or county courts.” The implications which have been discussed above are not vague implications, and they do not arise out of what may be conceived to be the general spirit of the Constitution. They are necessary implications that must be indulged to make effective the method set up in the Constitution for the administration of justice in the important cases within the constitutional jurisdiction of district courts. The judicial system, plan or “pattern” set up in the Constitution is not lightly to be disregarded, and should not be circumvented or nullified under the guise of creating “other courts”. Chief Justice Conner, writing the opinion in State ex rel Peden v. Valentine, 198 S. W. 1006, 1007, application for writ of error refused, expressed proper judicial recognition of the system or “pattern” for the Texas courts as set up in the Constitution when he said: •
“An examination of the Constitution as a whole plainly shows that in organizing the judicial power of the state, courts of distinct grades and classes were provided, which were given carefully prescribed spheres of action within which the judicial functions of each could be exercised. In thus apportioning the judicial power the several classes of courts were distinctly named.”
The elaborate and complete system of courts, with particular provisions for the organization of district courts and for the exercising of their functions in trying the important cases committed to their jurisdiction, was set up bj>- the Constitution to assure the people of the state the orderly, intelligent, fair and equal administration of justice in the trial of those cases, and this Court should not give its approval to an Act of the Legislature which tends to break down that system and to nullify *259those provisions and limitations and which, if followed as an approved precedent, will inevitably break down the system, nullify the constitutional limitations and cause confusion in the administration of justice.
The authorities cited in the opinion of the majority do not support the conclusion that the Act attempting to create the “Court of Domestic Relations for Potter County” is valid. Carter v. Missouri, K. & T. Ry. Co., 106 Texas 137, 157 S. W. 1169, sustained an Act of the Legislature which created an emergency district court for Grayson County to have concurrent jurisdiction with the existing district court, and empowered the governor to appoint, upon the creation of the court and as its judge, one “having the qualifications provided by law for district judges.” The provision of the Act that the term of the judge should continue until the court should cease to exist on December 1, 1914, was sustained only because the term of office did not extend beyond the time for the qualification of a successor, and there could be no successor. State ex rel Rector v. McClelland, 148 Texas 372, 224 S. W. 2d 706, held valid an Act of the 51st Legislature which created a probate court for Harris County and provided that it should have concurrent jurisdiction in probate matters with the county court of Harris County. The Legislature was careful to provide in that Act that the judge of the newly created court should be elected by the qualified voters of the county for a term of two years and should be “well informed in the laws of the state”.
Many courts have been created by the Legislature under the authority given by Section 1 of Article V of the Constitution as amended in 1891. See Article 1970-1 to 339, Vernon’s Annotated Civil Statutes, and Article 52-1 to 161, Vernon’s Annotated Code of Criminal Procedure. Examination of these various acts discloses that when they give to the newly created court jurisdiction of cases of which the district courts have jurisdiction under the Constitution, they uniformly provide that the judge shall be elected by the qualified voters for a term of four years and shall have the qualifications prescribed for a district judge, and that when they give to the new court jurisdiction only of cases of which the county courts have jurisdiction under the Constitution, they uniformly provide that the judge shall be elected for a term of two years and shall have at least the qualifications prescribed for county judges. We have found no Act of the Legislature other than that creating the “Court of Domestic Relations for Potter County” and the Act condemned in Rochelle v. State, 89 Texas Crim. Rep. 592, 232 S. W. *260838, that undertakes to provide for only six jurors in district court cases.
Giving full verity to the recital in the emergency clause of the Act that there is a present imperative need for combining all matters affecting domestic relations under the authority of a single court, it is nevertheless undoubtedly true, in view of the construction that heretofore has been placed by this Court upon Section 1 of Article V of the Constitution as amended in 1891, that such a court can readily be created without transgressing the limitations of the Constitution and can effectively be administered within those limitations.
I cannot agree that the Act can be sustained in part by striking out those parts of it that offend the Constitution, and this despite the statement in Section 15 that if any section of the Act shall be held invalid the remainder shall remain in effect.
The invalid provisions of the Act are not so distinct and separable that when they are stricken out that which remains is capable of being executed in accordance with the apparent legislative intent. The void parts of the Act affect the whole of it. They go to the organization of the court, the qualifications of the judge who presides over it, his appointment, his removal, and to all indictments brought in the court and the trial of all jury cases. They permeate the whole of the Act. A dominant purpose of the Act is to place full control of the court in the Juvenile Board, giving it authority to prescribe the qualifications of the judge of the court and to appoint and remove him. Another dominant purpose is that all indictments shall be brought by grand juries of “six members” and that all jury cases shall be tried before petit juries of “six members”. A court thus constituted and administered is a court fundamentally different from the district courts constituted and administered according to the provisions of the Constitution. The entire Act is void, and the saving clause in its Section 15 cannot serve to save portions of the Act when the invalidity permeates all of it and affects its dominant purposes. Empire Gas & Fuel Co. v. State, 121 Texas 138, 162, 165, 47 S. W. 2d 265; White v. White, 108 Texas 570, 587, 196 S. W. 508, L. R. A. 1918a; County School Trustees of Orange County v. District Trustees, 137 Texas 125, 132-133, 153 S. W. 2d 434; 11 Am. Jur. pp. 845-849, Secs. 155, 156; Cooley’s Constitutional Limitations (8th Ed.) Vol. 1, pp. 359-363; Commonwealth ex rel Margiotti v. Sutton, 327 Pa. 337, 193 Atl. 250; 59 C. J. pp. 647-648, Sec. *261207; Whitener v. Belknap & Co., 89 Texas 273, 34 S. W. 594; State v. Gillette’s Estate (Com. App.) 10 S. W. 2d 984, 988-989; Turner v. Tucker, 113 Texas 434, 258 S. W. 149.
The judgments of the Court of Civil Appeals and the District Court should be affirmed.
Opinion delivered June 28, 1950.