The following concurring opinion was delivered by
Thompson, J.I fully concur in the reasons, as far as they go, for the reversal of this judgment, contained in the opinion of my *344Brother Woodward. I believe the rule to be universal, that when an officer is acting in any special capacity, outside of his general jurisdiction, it must appear affirmatively, as the foundation of the legality of such acts, that they were performed within and under the authority so given. In such case, the maxim “ omnium presumuntur rite acta est,” does not apply. The “ additional judge” of the 6th district, as is clearly shown in the opinion referred to, could, if legally authorized, under any circumstances to sit in the Oyer and Terminer, only do so, in one or other of the contingencies mentioned in the Act of 1856, viz. the absence, sickness, or request of the president judge. In this case, it does not appear that either contingency had occurred. Nor can we any more presume that Judge Galbraith was absent from his jurisdiction, than that he was sitting in the court-house, a spectator during the trial. If the latter, it is manifest, I think, that he could not devolve the exercise of the jurisdiction on another. I cannot believe that he could remain at home, able to perforin the duties of his office, and by request, authorize the additional judge to discharge such duties as presiding in the Oyer and Terminer. If he could request, and thereby authorize it, the law must be presumed to have intended the existence of some controlling necessity as the foundation of such request. But we have nothing on this record which shows that either of the contingences existed, authorizing the additional judge to hold the court; and we are not to presume the existence of special facts authorizing the exercise of special jurisdiction. If I had assented to the doctrine, that the additional judge of the district could, under any circumstances, hold this court, I would have found the reasons just mentioned sufficient to induce me to go for a reversal of the judgment; and, as two of my brethren think it sufficient, I concur with them in their reasoning, differing, however, with them on a paramount point, which would also reverse the judgment, if assented to by a majority. I think it should be reversed, on the ground that the Acts of Assembly of 1856, authorizing the election of an additional judge of the 6th district, and of the 28th of April 1857, defining his jurisdiction in certain particulars, do not, constitutionally, confer upon him the authority to preside in the court in which the prisoner was tried — and that all that was done was eoram non judiee.
After the most careful attention and reflection on the point, I am firmly of the opinion, that any legislative act, conferring the power on any judge or judges to hold Courts of Oyer and Terminer and general jail delivery, without the president judge of the Common Pleas being of the quorum, is unconstitutional and void —that such court cannot be legally constituted, while such an officer exists in the district, and without his presence, as a member of it, I know a contrary determination by the court was pro*345nounced in the case of Zephon v. The Commonwealth, 8 W. & S. 382, and was followed in the case of Kilpatrick v. The Commonwealth, 7 Casey 198. In the last-named case, Mr. Justice Porter and myself dissented on the constitutional ground just stated, and on my part, for an additional reason not necessary to he indicated. The case was carried by a bare majority of the bench. The doctrine is, in the present case, reaffirmed; Mr. Justice Read, who dissents from the reversal of the judgment, agreeing to it. The chief justice, not having heard the case, took no part in the decision ; hut he concurred in the decision in the case of Kilpatrick v. Commonwealth.
The judges of the Supreme Court are, by virtue of their offices, justices of Oyer and Terminer and general jail delivery. This is by express constitutional provision. So by sect. 5th of Art. Y. of the Constitution, it is provided, “That the judges of the Courts of Common Pleas, in each county, shall, by virtue of their offices, be justices of Oyer and Terminer, for the trial of capital and other offences therein; any two of the said judges, the president being one, shall be a quorum.” This is a plain, clear, and unambiguous declaration as to what offices should be attached the powers of justices of Oyer and Terminer, and a clear mandate as to who shall compose and hold that court. Learned and lay men, professional and unprofessional, can understand it but in one way, that when the judges of the Supreme Court do not exercise this function of their offices, in holding the courts of Oyer and Terminer, the judges of the Common Pleas shall, and the president shall be one of the quorum.
The constitution is not to receive a technical construction, like a common law instrument or a statute, unless when technical words are used: Commonwealth v. Clark, 7 W. & S. 127. “ It is made,” said Gibson, C. J., “ not particularly for the inspection of lawyers, but for the inspection of the million, that they may read, and discern in it their rights and duties.” “ Words, therefore, which do not, in themselves, denote that they are used in a technical sense, are to have their plain, popular, obvious, and natural meaning:” 6 W. & S. 114; Story on the Constitution, § 210. Read in the light of this settled rule, can any one doubt but that a “president judge” of the Common Pleas must be one of the ■ quorum in the Oyer and Terminer?
It surely cannot be said, that the provision is merely directory, and may be dispensed with by the legislature. The words themselves do not indicate this. They are as clearly mandatory as any words in the constitution. Besides this, there were reasons in history that undoubtedly suggested the provision. The constitution of 1790, framed but seven years after complete independence was established, contained the same provision, and it was transcribed from that and inserted in the constitution of 1838. *346In both instruments there is contained in the Bill of Rights this provision: “No commission of Oyer and Terminer or jail delivery shall be issued.” And this is important to he considered in the present investigation. It had been the practice in England, which was well known to the framers of the Constitution of 1790, for the Crown to issue special commissions of Oyer and Terminer to judges, sergeants-at-law, and even private gentlemen, to hold the assizes in such'part of the kingdom as was therein indicated, for the trial of certain specified offenders and offences. Such was the commission issued for the county of Surrey, in 1745, for the trial of the Scotch rebels, as they were called, who had adhered to the cause of the Pretender, and had, in arms, endeavoured to assert his right to the Crown of England. “ It -was directed to every privy councillor by name, to all the judges, and to some private gentlemen, empowering them, or any three of them, to execute the commission:” Foster’s Crown Law 1. The history of this commission exhibits in painful characters the dreadful insecurity of private rights under such a system, and was, of itself, sufficient to induce our forefathers to interpose a barrier to the possibility of such an evil occurring here. They, therefore, specified who should be justices of the Oyer and Terminer; designated the offices by name, and, also, who should form the quorum in case the function should be discharged by the judges of the Common Pleas — “ Any two of them, the president being one.” Having deposited the power in designated hands, there follows in the Bill of Rights the prohibition, that “ no commission of Oyer and Terminer or jail delivery shall be issued.” Thus we have the power vested, and the prohibition of its change.
Notwithstanding this constitutional provision, and notwithstanding the fact that the Court of Common Pleas existed in the sixth district, with its president and associate judges, the judicial officers designated by the constitution, and by it invested with the functions of justices of Oyer and Terminer, the legislature, by Act of 8th April 1857, provided that the “ additional judge” — not a president judge, or an associate judge, in the terms of the constitution — should, while holding courts which he might hold, “ have and exercise jurisdiction in all matters pertaining to the Orphans’ Court, Courts of Quarter Sessions, and of Oyer and Terminer:” Pamph. Laws 1857, p. 334. This power was not incident to his commission ; for if it were, the act was unnecessary. If it was not incident to the commission, then the act was a nullity, for it was a special commission of Oyer and Terminer, directed to the “ additional judge,” by the legislature, to exercise the power of a judge in Oyer and Terminer in particular counties, on special occasions. This was in direct conflict, in my judgment, with the prohibition that “no commission of Oyer and Terminer shall issue.”
That Judge Derrickson was not a president judge of the *347Common Pleas within the meaning of the constitution, is apparent. He was not designated as such, nor was he an associate judge for the same reason. His office then did not carry with it the incidental quality of a justice of Oyer and Terminer. If he has it, it must be by virtue of the special legislation designed for special occasions. This is forbidden by the constitution. It is not the form, but the substance, we must look at, and in substance it is a commission of Oyer and Terminer, or it is nothing. It matters not, that it is not so called, it is so in fact. The duties to be performed being identically the same with that to be performed under the most formal and special commission. The very ground on which the reversal of this particular case rests, as already stated, is the want of evidence that the special circumstances, authorizing the additional judge to hold it, had occurred. Was not the judge’s authority to hold the court a commission to do it ? and if special facts occurring were necessary to the vitality of the commission, as the decision proves they were, does not all this prove it a special commission ? Precisely the same general argument is applicable to every county in his district, and to every judge everywhere specially authorized to hold such courts, while the organization of the Common Pleas contains a president judge.
Again, if the legislature could authorize the additional judge to hold Courts of Oyer and Terminer, while the office of president judge of the Common Pleas exists, they could require him to do so; and they could require him to hold all the terms of that court either generally or for a limited period, and thus oust the constitutional judge of his jurisdiction under the constitutional provision. In case of conflict of jurisdiction between the judges thus commissioned, which would prevail, the legislative judge, or the constitutional judge ? The one is the creature of the fundamental law — the legislation of the people. The other, the creature of the servants of the people, bound not to transcend their will as expressed in the constitution. Can any one doubt for a moment, which must be held the better right? A “better right,” to the exercise of official functions, argues no right whatever against it. Thus then it must follow, that the constitutional judge — the president judge of the Common Pleas, deriving his powers from that instrument, would, in right and title, be superior to the judge deriving his from legislative will alone.
But it is said, that the constitution itself provides for a legislative reorganization of the Common Pleas. The words are, “ until otherwise directed by law, the Courts of Common Pleas shall continue as at present established.” What is meant by “ established,” I need not inquire. But I deny that it can be so re-established by the legislature, as to abolish the office of president judge, because a president judge is necessary to the quorum in the Oyer and Terminer. That court could not be constituted *348without such officer, except by the judges of the Suj>reme Court. It will not do to resort to equivalents to fill the terms of the constitution. If we do, anything will answer for the thing described, that the legislature may deem equivalent. In such a system, the constitution would be neither more nor less than the will of the legislature. It would be better to have no constitution whatever.
But I have used the expressions, “constitutional judge” and “legislative judge.” I think there is that distinction between two such commissions as I am considering. In both the old and new constitution of the Commonwealth, and in the amendment of 1850 to the latter, there are but two classes of judges whose independence is complete during the tenure of their offices, viz., the judges of the Supreme Court, and the president judges of the Common Pleas. The provision of the constitution is, that “ the judges of the Supreme Court, and the presidents of the Common Pleas, shall, at stated times, receive an adequate compensation, to be fixed by law, which shall not be diminished during their continuance in office.” This extends to no other judges than those named. When the reduction of $>400 by the Act of 1843 took place, which had been an increase to that amount by the Act of 1839, it is well known that this court held in The Commonwealth v. Mann, 5 W. & S. 403, that the salaries of the president judges could not be reduced by the act; and it is equally well known that it was withheld from the class of judges known as “district judges” in the state, but was subsequently paid to most of them by special acts of the legislature. The “additional judge,” under the Act of 1856, is in the same category. The legislature could undoubtedly increase his salary, and decrease it at pleasure. His office is not, in all senses of the instrument, therefore, a constitutional office. It cannot be supposed, I think, that the framers of the constitution ever intended that the office of president judge should be abolished, and the substitute for it be liable to, or dependent on, legislative will for compensation. The constitution of 1790 made the tenure as well as salary independent. It was a life tenure, subject only to be defeated by impeachment or an address of two-thirds of both houses of the legislature. The constitution of .1838 retains the same quality of independence of the legislature during the term, which is for years. The same principle exists in both, differing only in tenure. I cannot believe that the words, “ unless otherwise directed by law, the Courts of Common Pleas shall remain as at present established,” gives the power to abolish the office of president judge, when named so often as it is in the constitution, and when protected, as I have shown it to be, beyond that of any merely legislative judge. It would be an anomaly, unprecedented, if the time should ever come, when there should be no president judges in our courts, although so often designated in the constitution. That time never *349can come until the constitution becomes a dead letter; and when that time arrives, the people may not need such functionaries a.t all. If then the office is to remain, as it must, to preserve the framework of the constitution, I fear not to say that the Oyer and Terminer can never be legally constituted but by the judges of the Supreme Court, or by the judges of the Common Pleas, the “ president judge being one,” in accordance with requirements of that instrument.
In the constitution of 1790, I have said, the office of president judge was made independent of the legislature, which is the sovereign power of the state, by a life tenure and a fixed salary. The teachings of history are manifest in this provision. The melancholy experience of the tyrannical reigns of the Charles’s and James II., of England, was fresh in history. Amongst the worst features of those times, was the venality of judges depend-ant on the crown for office as well as salary. And fresh, too, was the history of the great reform which gave, in the subsequent reigns of William III. and George I., permanency in tenure and salary to the judges. This was a great reform, but it still left the right to special commissions in the crown. Our ancestors followed the reform by the independence of the judges, and forbade the abuses of the special commission by the prohibition in the constitution. The constitution of 1838 embraced both principles —independence during the tenure, and no special commissions. But if the doctrine I contend for be not a fixed regulation of our constitution, and implicitly followed, we abandon both principles. The judge may be subject to a reduction of salary during his continuance in office, and special commissions in Oyer and Terminer may again prevail. This is demonstrably the effect of sustaining the right of dispensing with the president judges, as of the quorum, in Oyer and Terminer. This may become an evil, the extent of which cannot be imagined, and which I hope the country may never experience.
Wherever there is an enumeration or specification of powers in the constitution, these of necesssity exclude all others not specified ; “ because an affirmative grant of special powers would be absurd as well as useless, if a general authority were intended:” Story on the Const. U. S. 207. The remark holds good in our case. The specification of who shall hold the- Oyer and Terminer, was exclusive of the right to invest any other judges not enumerated.
Nor is there any existing necessity to excuse the invasion of the constitutional powers I complain of. There is no district in the state in which the president judge might not preside with ease in all the cases in the Oyer and Terminer. But if there be, let the districts be lessened, and a constitutional judge be provided.
*350It is in times of great public security that innovations are most likely to occur, but they become precedents in evil times; and it is our duty to correct departures from the prescribed line while free and unembarrassed in our actions, as we happily are at this time. I certainly anticipate no immediate evil to the public, from the exercise of the judicial functions which I object to, by the learned and efficient additional judge of the sixth district — I would be as willing to repose unsanctioned power in his hands, as in that of any man within my knowledge. It is not the judge that I fear; it is the precedent I would avoid. On this subject I cannot refrain from introducing the following appropriate extract from Macaulay, who, in his History of England, speaking of constitutional limitation, says: “We have been taught by long experience, that we cannot, without danger, suffer any breach of the constitution to pass unnoticed.” * * * “As we cannot, without the risk of evils from which the imagination recoils, employ physical force as a check on misgovernment, it is evidently our wisdom to keep all the constitutional checks on misgovernment in the highest state of efficiency, to watch with jealousy the first beginnings of encroachment, and never to suffer irregularities, even when harmless in themselves, to pass unchallenged, lest they acquire the force of precedents.” These words of admonition are certainly as valuable in their teachings when applied to our clearly defined written constitutions, as to those undefined limitations on the monarchy of Great Britain. If a jealous and vigilant watchfulness becomes a British subject, to preserve the limitations of power, does it become us to be less watchful ? In my humble judgment, the Act of 185T, giving the additional judge power in the Oyer and Terminer, is a plain violation of a constitutional injunction, which needs to be redressed. The present enlightened executive of this Commonwealth, has in two messages expressed his decided and unhesitating dissent to legislative violation of the doctrines here contended for, and in terms of striking power and weight; and at this I rejoice. Eor the reasons thus given, I would have reversed the judgment in this case.
Read, J., dissented.