dissented, and delivered the following opinion :—
The Act of Assembly to establish criminal courts for Dauphin, Lebanon and Schuylkill counties, determined to be constitutional by a majority of this court, at least so far as to authorize the commissioning of a judge, is not so in my opinion; and I will give some of the reasons for my belief, and why I differ from the majority.
The act, I think I may safely say, is the most extraordinary legislative performance on our or any other statute book. It occupies three and a third octavo closely-printed pages of the Pamphlet Laws; is in a single section, forming but one sentence, and is without a full stop from beginning to end. This form, unlike all other precedents of statutes containing different provisions, is significant of conscious wrong intended in framing the bill, and *235that its shape was designed to prevent defeat in detail by separate votes on separate sections or paragraphs. I do not mean to say that ipso facto this circumstance necessarily impairs the validity of the act, but does call for a severe scrutiny of its provisions.
Its provisions are no less remarkable. It ostensibly establishes three criminal courts, one in each of the three counties named, while in fact it establishes but one, and that one in the county of Schuylkill. It also provides for the appointment by the governor of a judge until the ensuing election, just as if it were a case of vacancy “ happening by death or resignation,” and for the election of the judge thereafter, as in other districts, by the electors of the three counties composing the pretended district.
The jurisdiction of the court for Schuylkill county is without limit both in Oyer and Terminer and in the Quarter Sessions, and is to be held and presided over by a single judge. To effectuate this completely, all criminal jurisdiction is forbidden to the constitutional 'courts of the county, as well as the summoning of grand juries in Dauphin and Lebanon counties. The jurisdiction of the court is made dependent solely on the option of the district attorney in each whether any court shall ever be holden therein or not. No independent clerks for these courts are provided, but the office is conferred by the legislature on those elected for the performance of similar duties in the other criminal courts of the district. This is a disregard of the express provisions of sect. 3, art. vi. of the constitution, which requires them to be elected. This disregard is not a novelty in the act; there is scarcely a provision in it that does not violate some provision or other of the constitution, as will be shown herein.
In its practical results the act is also noticeable. It was passed on the 18th day of April, A. D. 1867, and a judge was shortly thereafter appointed. In June following this court passed upon one of the main provisions of the act, holding that so far as it attempted the repeal of the criminal jurisdiction of the established and constitutional courts of Schuylkill county, it was unconstitutional and void. In July a suggestion was filed by the Attorney-General of the Commonwealth for a quo warranto to try the validity, of the judge’s commission under the act. During the pendency of this proceeding, the legislature at its late session, by a decided majority in both branches, passed a bill to repeal the act. This the governor vetoed, and the veto remained unacted on when the legislature finally adjourned. Thus, between the legislature and this court, the act now pronounced constitutional in some of its features, has had a precarious existence, has been of no public benefit, and, in my judgment, never will be. It is an experiment that will not work. One part of the act has been declared unconstitutional, as already said, and this part was a most material portion of the scheme of the new court. We decided that when *236we held that the jurisdiction of the judges of the Common Pleas to hold Courts of Oyer and Terminer could not be taken away by an act of the legislature. I think the' same objection exists as to the jurisdiction of these judges in the Quarter Sessions. It is very doubtful whether the legislature has the power to deprive them of it. Mr. Justice Rodgers seems to hold the negative in In re Pennsylvania Hall, 5 Barr 204.
As the constitution of the Common Pleas may be changed by the legislature by express constitutional provision, it is not intended to be insisted that in making such change, a change of Quarter Sessions jurisdiction might not follow; not by the establishment of an independent tribunal merely. The provision of the constitution on this subject, Art. v., § 81, is, “ The judges of the Court of Common Pleas of each county, any two of whom shall be a quorum, shall compose the Court of Quarter Sessions,” &c. I do not forget that the legislature may, from time to time, establish other courts than those enumerated. This the constitution says; but to establish courts in place of those enumerated, has never been decided. The experiment of a criminal court once established in Philadelphia, is no proof of the just power of the legislature on this point. Time and the people condemned it. The reminiscence is not a beacon to point to a safe harbor, but rather to avoid rocks and shoals. I hold that neither in the Oyer and Terminer, nor in the Quarter Sessions, is the jurisdiction of the constitutional courts at all to be affected by this or any like act. That as to both, the provisions of this act are unconstitutional. Nor is the instance of a mayor’s court, to the purpose. That is essentially a municipal tribunal, and where it exists it tries offences in and against the corporation, which are at the same time offences against the state, and thus by usage holds criminal jurisdiction within the limits of the municipal corporation. But this act authorizes a single judge to hold Courts of Oyer and Terminer and G-eneral Graol Delivery. A general jurisdiction. The constitution requires two judges of the Common Pleas to hold this court, one of whom shall be president of the court, who, as everybody knows, is required to be learned in the law; or two judges of the Common Pleas learned in the law, as held in Zephon’s Case, 8 W. & S. 385, and in Kilpatrick’s Case, 7 Casey 198. The act disregards the constitutional quorum required in Oyer and Terminer, and the material of the quorum altogether; so does it in the Quarter Sessions. And if the judge’s commission gives no authority or jurisdiction in either of these courts, as I think it does not, it is a void commission.
It would be void also if it expressly gave authority and jurisdiction in the Oyer and Terminer. The bill of rights declares that no such commission shall ever issue. See opinion in Foust’s Case, 9 Casey 338. Not being a judge of the Common Pleas, jurisdic*237tion in Oyer and Terminer of the judge in the new court does not inhere in his commission, and cannot be vested therein on account of the provision in the bill of rights quoted; and I am of the opinion that as the Quarter Sessions jurisdiction of the Common Pleas was not changed by the act, the commission is void, that no judicial functions can be exercised under it. If it be incurably defective, as to all these main objects of the act, as it assuredly is, I see not how it is to be regarded as a commission of vigor and authority for purposes that the legislature never intended should be the foundation of a separate commission.
The act in question purposes to constitute a criminal judicial district of three counties. In two of them jurisdiction is to be exercised not by force of the commission of the judge, but at the option and on the certificate of the district attorney. One part of the district it was intended should have a regular criminal court by force of law; in the other .two-thirds, no courts are to be held unless it suits the will and pleasure of the prosecuting officer of the county.
What does the constitution provide on this subject ? It provides for judicial districts, and it provides for the election of the president judges of these districts, with equal authority in every part of them. This is the plain meaning of the constitution where it says, “ And all other judges required to be learned in the law (shall be elected) by the qualified electors of the respective districts over which they are to preside and act as judges,” to preside by virtue of their commissions, is obviously the meaning of the provision. ■
Now here is a district of three counties, in two of which the judge is not to preside by virtue of his commission. Is this a constitutional district in which a judge can be legally elected ? or that the judge elected can receive a valid commission? That involves an answer to the question, whether two counties out of three may legally elect a judge of the district to preside in one only ? The obvious operation of such an act would be to establish a judicial district of one county, and to permit other qounties, not in the district, to vote for and elect the judge. Will anybody say that such an arrangement could be the foundation of .a valid commission? That is this ease exactly and precisely. The judge has a commission for a district of three counties, but is forbidden to exercise jurisdiction in two of them, excepting as it pleases the district attorneys to allow him to do so. His authority does not exist until the option of the district attorneys is exercised, and it is not certain it will be exercised. Is the person holding the commission of judge a judge in all three counties in the mean time, in the sense of the constitution ? The constitution means a presiding in the district by virtue of law, in the exercise of judicial functions. This act means something else. Are both and each of these dissimilar and opposite provisions constitutional ? It *238would be hard to affirm this. If it be constitutional in this district to limit and divide jurisdictions, it will doubtless be constitutional at some future time, perhaps not distant, to add Berks, Schuylkill, Montgomery and Bucks to Philadelphia, and make it a special judicial district, only to be presided in by the judges elected, at the will of the prothonotaries or clerks in those counties ; an option not likely to be exetcised, the election once over.
It would confound all ideas of the proper construction of the constitution to hold anything but that such an act would be a palpable violation of its provisions — a mere evasion; a thing more to be deprecated even than an open and undisguised infraction of the constitution.
I have not room in this opinion to characterize this essential revival of the old special commission system for the trial of prisoners. Its evils were known to the framers of our constitution. The history of the arbitrary and tyrannical reigns of the Charles’s and James II. of England was more fresh then than now, and the effort of the framers of our constitution was to prevent its repetition. But here we have it in substance as well as resemblance. The district attorney in each of two counties in the disti'ict has power to choose between the constitutional and toe alternative court, furnished by this act, before which it may be most easy to convict a prisoner, and as he decides, the new court is to be called in, or the ordinary tribunals, of which no one complains, and in which all ought to have confidence, is to have jurisdiction of the offence. Such q provision is most dangerous to the people, a flagitious violatioirirf the principles of the constitution, and an especial infraction, in my judgment, of its provision against issuing special commission's I am therefore of opinion that the Act of Assembly under which Judge Green claims to exercise the functions of a judge, is void and unconstitutional. I am, consequently, for giving judgment for the Commonwealth on the demurrer.