
    CHAMBERS v. BALDWIN.
    (No. 3134.)
    (Court of Civil Appeals of Texas. Texarkana.
    June 20, 1925.
    Rehearing Denied July 2, 1925.)
    1. District and prosecuting attorneys <§=>8— District court may determine which of two officers shall represent state in criminal proceedings before it.
    District court has jurisdiction to determine on which of two officers is devolved legal duty of prosecuting attorney in criminal proceedings cognizable therein in order to give relief law can afford, though proceeding by one to restrain other from further representing state is in nature of private action as involving property right to receive fees of office.
    2. District and prosecuting attorneys <§=>8— County transferred to new judicial district held still included in old district as'respects prosecution of criminal actions therein by district attorney.
    Acts 39th Leg. (1925), c. 16, § 8, requiring district attorney of judicial district, from which county was transferred to another district, to prosecute criminal cases in district court until expiration of his term, which is fixed at two years by Const, art. 16, § 30, continued in force Acts 34th Leg. (1915), c. 151 (Yernon’s Ann. Civ. St. Supp. 1918, art. 339), as applying to district attorney until fixed date, so that such county was presently “included in a district in which there shall be a district attorney,” within Const, art. 5, § 21, and district attorney remained resident of district within article 16, § 14.
    3. District and prosecuting attorneys <g=o8— Act providing for prosecution of criminal cases in county, transferred to new district by district attorney of old district until expiration of his term, held not unconstitutional.
    As Const, art. 5, § 7, providing for a judge for each district at time of its creation, does not require provisions for district attorneys, Acts 39th Leg. (1925), c. 16, § 8, postponing time for transfer of county from old to new district as respects prosecution of criminal cases in such county by district attorney of old district until expiration of his term, is not unconstitutional.
    4. Statutes <§=^258 — Legislature may fix time when act shall take effect, if deferred time is reasonable.
    Legislature may provide in each act that it shall take effect in whole or part from its passage or approval or at fixed dat'e, if deferred time is reasonable.
    5. District and prosecuting attorneys <®=»8— County attorney not stripped of vested right by act continuing county in district from which transferred as respects prosecution of criminal cases.
    Acts 39th Leg. (1925), e. 16, § 8, continuing county, transferred to new judicial district by such act, under operation of Acts 34th Leg. (1915), c. 151 (Yernon’s Ann. Civ. St. Supp. 1918, art. 339), as respects prosecution of criminal case's. therein by district attorney of . old district until expiration of his term, did not strip county attorney of any vested right.
    6.Constitutional law <®=o48 — Statute must be upheld, if possible, by any reasonable con- . struction.
    It is court’s duty to uphold and give validity to act, if possible, by any reasonable construction.
    Appeal from District Court, Red. River County; R. J. Williams, Judge.
    Suit by E. B. Chambers against Wyatt Baldwin. From judgment dissolving temporary restraining order, plaintiff appeals.
    Affirmed.
    In November, 1924, the .appellee, Wyatt Baldwin, was elected district attorney for the Sixth judicial district, composed of Fan-nin, Lamar, and Red. River counties. At -the time of his election and qualification, and at the time this suit was instituted, Mr. Baldwin resided in Lamar county. In February,-1925, the Thirty-Ninth Legislature passed an act creating the One Hundred and Second judicial district, composed of Red River and Bowie counties. Acts 1925, c. 16. Red River county was taken out of the Sixth judicial district, and the Sixth judicial district was continued to be thereafter composed only of the counties of Lamár and Fannin. Bowie county was already in the Fifth judicial district, and the creation of the One Hundred and Second district gave that county two district courts. The act' contained the following provisions:
    “Section 2. Immediately after this act takes effect the Governor shall appoint some suitable-person as judge of the 102d judicial district court who shall hold said office until the next general election for state and county officers, and until the election and qualification of his-successor in office.
    “Section 3. The clerk of the district court of Bowie county, Texas, as heretofore constituted, and his successors in office, shall be the clerk of both the Fifth judicial district court and of the 102d judicial district court in Bowie county hereby created, and shall perform all the • duties of the clerk of both courts in Bowie county. ⅝ ⅜ ⅜
    “Section 8. The district attorney of the Sixth judicial district shall prosecute all criminal cases in the 102d judicial district court while sitting in Red River county until the expiration of his present term of office and thereafter the county attorney of Red River county shall prosecute all criminal cases in the district court of the 102d judicial district and shall represent the state in all matters wherein the state is a party and shall receive such fees for his services as is now, or may hereafter be provided by the general laws of the state of Texas.”
    The appellant, E. B. Chambers, was duly elected county attorney of Red, River county in November, 1924, and qualified in January* 1925. He is claiming the right to represent the state in criminal prosecutions in the. district court of the One Hundred and Second judicial district while sitting in Red River county, and to receive the legal fees therefor. In May, 1925, he filed in the district court of the One Hundred and Second judicial district his petition seeking an injunction restraining Wyatt Baldwin from further representing the state in criminal prosecutions in the district court since the transfer of Red River county to the One Hundred and Second judicial district. A temporary restraining order was granted, and upon final trial it was dissolved by the court. This appeal is by the appellant to revise the ruling of the court.
    A. L. Robbins, of Clarksville, for appellant.
    Edgar Wright and A. P. Parks, both of Paris, for appellee.
   LEVY, J.

(after stating the facts as above),

There is no dispute about the facts, and the question is one purely of law, viz. upon which one of the two officers is devolved the legal duty and obligation of prosecuting attorney in criminal actions and proceedings cognizable in the district court of Red River county? The court has jurisdiction to determine ⅛⅜ question in order to give the relief the law can afford, although the proceedings are in the nature of a private, and not public, action, within the scope of the law, as a property right is involved- — the rig'ht to receive fees of office. Both parties are prosecuting attorneys for the state; the one the county attorney of Red River county, the other a district attorney residing in Lamar county. Each of the two officers as such is entitled by law to receive such fees and compensation as may be prescribed by law. Section 21, art. 5, Const. And the duration of the term of the two officers is fixed at two years. Section 21, art. 5, Const.; section 30, art. 16, Const. As provided by the Constitution:

“The county attorney shall represent the state in all cases in the district and inferior courts in their respective counties; but, if-any county-shall be included in a district in which there shall be a district attorney, the respective duties of district attorneys and county attorneys shall, in such counties, be regulated by the Legislature.” Article 5, § 21.

Therefore the law makes the two offices separate and distinct, though with the same tenure, rights, powers, duties, and obligations of prosecuting attorneys. The one, however, is made subordinate to the other, having exclusive control, to some extent, of business of the state cognizable by the district court, in the certain instances specially named in the law. As expressly provided, the county attorney shall be the prosecuting attorney to “represent the state in all cases in the district and inferior courts in their respective counties,” unless his county “shall be included in a district in which there shall be a district attorney.” In such case, as provided, “the Legislature” is empowered and required to regulate “the respective duties of district attorneys and county attorneys.” In other words, in such case, the Legislature, by statutory provision, shall direct and assign the duties of the prosecuting attorney, as agent of the state, severally performable by such different officers in the courts of that county. Hence, as a provision of law upon which to found a private right, as relating to compensation, a county attorney could claim there was vested in him the authority and imposed on him the duty “to represent the state, in all cases in the district and inferior courts” of his “county,”' in case it appears that his county does not comprise a part of “a district in which there shall be a district attorney” authorized and provided for by the Legislature. Is that situation shown in the instant case? In the present act the Legislature, acting under authority expressly conferred by the Constitution, created the One Hundred and Second judicial district, composed of Red River county, in which the appellant was county attorney, and Bowie county. Red River county was transferred from the Sixth judicial district, composed of the counties of Lamar, Eannin, and Red River. The act provided for the “immediate” appointment of “a judge of the One Hundred and Second judicial district.” But, as regards a district attorney, the act in section 8 expressly provided that “the. district attorney of the Sixth judicial district shall prosecute all criminal cases” arising “in Red River -county” triable- “in the One Hundred and Se'cond judicial district court.” “Thereafter,” as further provided, “the county attorney of Red River county’,’ shall represent the state in “all criminal cases in. the district court of the One Hundred and Second judicial district.” At the time of the present enactment, and for á time prior thereto, a district attorney was specially provided to represent the state in the counties of Lamar, Eannin, and Red River, composing the Sixth judicial district. Acts 1915, p. 259 (Vernon’s Ann. Oiv. St. Supp. 1918, art 339).’ January, 1927, is the date of the expiration of the term of office of the said district attorney. The object of the Legislature, as is evident, is to create a new judicial district including Red River county, and to have “a judge”' preside over the same, and to have “a district attorney” for a limited time to represent the state “in Red River county” in the district court. “Thereafter,” as provided, meaning after January 1, 1927, the office of district attorney as applicable to “Red River county” was to be discontinued and cease to exist. But, according to the wording, it was “the district attorney of the Sixth judicial district” that was to represent the state in the district court of “Red River county.” No new office, tfiougfi, in tfiis respect was undertaken to be created, and no right that did not exist before was conferred. The purpose of the Legislature is evinced merely to continue in force without interruption the situation already existing, and not to presently disturb the rights already attached, as specially relating to the district attorney. There is plainly shown the intention of the Legislature to recognize “the Sixth judicial district,” as composed of the counties of Lamar, Fannin, and Red River, as a continuing district under the act of 1915 “for the election of a district attorney,” in force and unchanged in that special regard until January, 1927. Therefore in such intention and purpose, as is evident, the legal effect attaching to section 8, as in the nature of a saving clause, is to continue in force without interruption, and not repeal by the present act. Che law of 1915 as specially applicable to the district attorney, and to fix a date for the change effective at the time designated, January, 1927. Then, if, as provided and intended, the old Sixth judicial district, as composed of Lamar, Fannin, and Red River counties, is specially continued, so far as pertains to the district attorney and the performance of duties imposed on him therein, Red River county would be presently “included in a district in which there shall be a district attorney” within the scope and terms of the constitutional provision, although transferred otherwise -to another judicial district. As true, appellee would be, as proven, a resident of his district, within the meaning and scope of section 14 of article 16 of the Oonstitution, since Lamar county is within such Sixth district. Consequently, if it were within the authority of the Legislature to so legislate, the scope of the controversy here would be reached. Wherein, then, do the terms of the provision contravene or violate constitutional provisions?

The Legislature is clothed with absolute authority to create, increase, or diminish judicial districts. Section 7, art. 5, Const. Under this provision one county may be divided into parts or portions, and each part or portion thereof constitute a separate and distinct judicial district. Lytle v. Halff, 75 Tex. 128, 12 S. W. 610; Wheeler v. Wheeler, 76 Tex. 489, 13 S. W. 305, and other cases. Although the constitutional provision, supra, provides for “a judge” for “each district” at the time of the creation of such district, in order that the district court may properly function, yet it is not required that there be provided at the same time, or even at all, a district attorney. The Legislature is clothed with absolute authority, in their discretion, for expediency, convenience, or economy, to provide’ “for the election of district attorneys in such districts as may be deemed necessary.” Hence the constitutional requirement as regards the creation of a judicial district is not violated, where the Legislature, in creating a new district, provides, as here done, for the postponement, as is the effect, of the date for the change of one of the counties of the old district to the new district, as specially pertains to the prosecuting attorney of the old district. In other words, the act intended to cut off Red River county from the 'old district, and to put it in the new district for all purposes except as pertains to the district attorney’s duties, and for this one purpose only this county was to presently continue a part of, and not be cut off by the act from, the old district. Such subject-matter pertaining to the district attorney does not in the least affect or interrupt the completeness of the district in the functioning of the judge or court as such. The act was to become effective from the date of its passage as to the judge and his right to function in the district, but not for the change of Red River county from the operation of the act of' 1915, as to district attorney, to the present act until January, 1927. It is not a power, forbidden to the Legislature to exercise, to establish a judicial district and to provide for its functioning immediately, but adding a provision, in the nature of a saving clause, which postpones the taking effect as to a particular thing in no wise repugnant, inconsistent, or controlling to the purview of the act.

The Legislature is free to fix in each act the time it, as a whole or in part, shall take effect, and may therefore provide that it shall take'effect in whole or in part from its passage, approval, or at a fixed date; the deferred time being reasonable. Consequently it is concluded that continuing Red River county under the operation of the act of 1915, as relates to the district attorney, for the time stated, did not have the effect to strip the county attorney of any right vesting in him by assigning the duties of prosecuting attorney to the attorney of another separate district. For until the act of 1915, as pertains to the district attorney, ceased to be legally effective as to Red River county, such county remained under its operation for that special purpose, and did not presently became a part of the new district for such purpose. Red River county became, we think, a part of the new district for all purposes, except the one purpose only, as related to the district attorney. It was not by the act cut off from the old district for the one purpose stated, but presently remained a part of the old district for the one purpose stated. Quite a different question would be presented had the act intended to permanently continue the old district for the special purposes stated.

There is quite a distinction between assigning the duties of prosecuting, attorney to the attorney of another distinct district, and the latter holding office in the original district not presently changed in that regard and made effective as to the new district. It is quite analogous to the holding that a special district court may even be created for one county, to cease to exist at a time named, and the terms of the officers of said court to expire at the time named. Carter v. Missouri, K. & T. R. Co., 106 Tex. 121, 157 S. W. 1169. The power to create necessarily includes the power to create in whole or in part, and. to take effect, as determined, at an immediate or deferred time. It is an elementary rule of construction that, if by any reasonable construction an act of the Legislature may be held valid, it is the duty of the courts to uphold the same and give validity thereto.

It is believed that the judgment should be affirmed, and it is accordingly so ordered. 
      cgr^For other cases see same topic and KEV-M UMBER in all Key-Numbered Digests and Indexes
     