delivered a dissenting opinion.
“The jurisdiction of the Supreme Court shall extend over the state, and the judges shall by virtue of their offices, be justices of Oyer and Terminer and General Jail Delivery in the several counties; they shall have original jurisdiction in cases of injunction when a corporation is a party defendant, of habeas corpus, of mandamus to courts of inferior jurisdiction, and of quo warranto as to all officers of the Commonwealth whose jurisdiction extends over the state, but shall not exercise any other original jurisdiction; they shall have appellate jurisdiction by appeal, certiorari, or writ of error, in all cases as is now or may hereafter be provided by law: ” Constitution of 1874, Article V, sec. 3.
In one section the original jurisdiction of the Supreme Court is limited to four classes of cases, prohibited as to all others, and the appellate jurisdiction in judicial proceedings *383is made as extensive as has been or may be provided by the legislature. Original jurisdiction has been defined thus: “ Authority to take cognizance of a controversy in its first condition, and to try and determine the questions of fact, and apply the law, as distinguished from appellate jurisdiction; ” and the latter thus: “ Pertaining to the judicial review of adjudications. Appellate is used in a broader sense than appeal; thus appellate jurisdiction is the power to take cognizance of and review proceedings in the inferior court, irrespective of the manner in which they are brought up, whether by appeal, or by writ of error, or even by certiorari: ” Abbott’s Law Dict.
The Constitution clothes the Supreme Court with certain original jurisdiction, and legislation can confer it in no other cases. A statute may provide that said court may review interlocutory orders and judgments, as well as final judgments, but a provision that the court shall retain the cause for trial after such review would be void. Appellate jurisdiction is a continuation of the judicial power which has been executed in the court of original jurisdiction, it involves only a review, and if no error be found the judgment of the inferior court stands. But in case of reversal, if the proper judgment cannot be pronounced without the taking of additional testimony, or another trial to determine the facts, the appellate court settles the questions which were raised in the record and remands the cause to the court having original jurisdiction for further investigation and adjudication. If the appellate court also had original jurisdiction of such cause the case would be different.
It matters not how extensive was the original jurisdiction of the Supreme Court prior to the adoption of the constitution of 1874, for that names the classes of cases of which the court shall have such jurisdiction, and declares that it “shall not exercise any other original jurisdiction.” This provision is utterly repugnant to all statutes conferring original jurisdiction on the Supreme Court in cases not within the specified classes. The provision is plain, in negative words, and there is no ground for avoiding it by construction or interpretation. Being a part of the organic law of the Commonwealth, it repeals prior repugnant statutes. It cannot rightfully be nullified by prior statutes or judicial decisions. No legislation is necessary to carry the repeal into effect. The direct security of rights, and the positive prohibition of acts, where legislation’ is not manifestly contemplated for the enforcement thereof, are valid and effective from the adoption of the constitution: In re Grape Street, 13 W. N. C., 377; Pierce v. Commonwealth, 14 Id., 97. Other cases might be cited, among them, Pusey v. City of Allegheny, 98 Pa. St., 522, where it was re*384marked of Art. XVI, sec. 8 : “This being now the supreme law of the land, it must govern the case under consideration; and it is idle to recur to decisions and legislation, the authority of which as to all present and future cases, is, by this provision, annulled.”
None of the prior constitutions contained a limitation and prohibition of original jurisdiction. That of 1776 provided that the Supreme Court, besides the powers usually exercised by such courts, should have certain powers of a court of chancery, “ and such other powers as may be found necessary by future.General Assemblies, not inconsistent with this constitution.” And similar provision was in the constitutions of 1790 and 1838. Under all of them the power of the legislature to confer original jurisdiction upon the Supreme Court was unrestricted. That power was liberally exercised, as maybe seen in the opinion of the court in Commonwealth v. Simpson, 2 Grant, 439, and in the dissenting opinion by Justice Rea.d, in Commonwealth v. Frowenfield, 3 Grant, 99. Among the powers conferred were those of the Court of King’s Bench in England. Now the original jurisdiction of the Supreme Court is limited by the constitution to specified cases, and prohibited in all others.
The constitution of 1790 provided that there should be a Court of Oyer and Terminer and General Jail Delivery in each county, and that the judges of the Court of Common Pleas in each county should by virtue of their offices, be justices of the Court of Oyer and Terminer and General Jail Delivery. This provision was in the constitution of 1838; and it is in the present, with the modification that the judges of the Court of Common Pleas, learned in the law, shall be judges of the Court of Oyer and Terminer. Since 1790 there has been the same constitutional provision respecting the extent of the jurisdiction of the Supreme Court, and that “the judges thereof shall, by virtue of their offices, be justices of Oyer and Terminer and General Jail Delivery in the several counties.” By virtue of the constitution a Court of Oyer and Terminer exists in each county. It is not a creation of the legislature. The judges of the Common Pleas, by virtue of their offices, are judges of the Oyer and Terminer, but their duties and powers as judges of that criminal court are the same as if they were not also judges of another court. The Oyer and Terminer has original jurisdiction iii criminal cases, and its judges have no greater power respecting its business than they would have if not also judges of the Common Pleas, or of the Supreme Court. When one or more of the judges of the Supreme Court act as judges of the Court of Oyer and Terminer in any county, they exercise the duties *385and powers of judges of that court, neither more nor less, and their proceedings and judgments are subject to review by the Supreme Court, same as if said criminal court was held by any other judges thereof.
I have referred to the questions of jurisdiction, believing they bear on the propriety of granting the petition of the defendants. If no error be shown in the proceedings of the Court of Quarter Sessions which ought to be corrected at this stage, it seems to me that the main result of interference by the appellate court will be delay. I believe that a court for the correction of errors cannot rightfully delay a trial in the court of original jurisdiction, when no error appears to have been committed. If it can, the state of the law relative to the trial of criminal causes, since the adoption of the present constitution, is no better than it was before. As the law stood before, this court could bring up causes from the inferior criminal courts and try them. In Commonwealth v. Simpson, supra, Justice Black said: “It is clear that we have the power of bringing criminal cases into this court for trial by certiorari, but we ought not to have it. It has never yet been exercised for the punishment of offenders, but it has often had the effect of screening them from justice. Of the numerous removals which have been made in fifty'years, not one has resulted in conviction; and nine out of ten have never been tried......I make these remarks in the hope of calling to the subject the attention of that department of the government which alone can give a remedy for what I am sure is a great evil.” The legislature gave no remedy, but the consti-' tution of 1874 did by prohibiting this court from exercising original jurisdiction, except in the cases therein named. What is that remedy worth if this court may delay the trial in the proper court ? Is it not notorious that delay in bringing an offender to trial tends to his acquittal? During the delay the prosecutor may become weary, or satisfied, or the Commonwealth’s witnesses lost; and then the offender will be ready for trial, and the District Attorney learns that he cannot adduce evidence to convict. In my opinion no certiorari should be issued by this court to arrest a trial and bring up a' cause before final judgment in the court below, except for such error as must be corrected before the alleged offender could have a fair trial on the merits, and that such error ought to be shown prima facie at the time of application for the writ.
The petition in this case prays for a writ of certiorari to be issued to the Court of Quarter Sessions of Warren county, and upon its return that this court will proceed to the trial, decision and determination of the cause. It sets forth alleged facts tending to show that the defendants are not guilty of the *386offence charged in the indictment; that persons other than the defendants have acted badly, and in contemptuous defiancé of the Court of Common Pleas of the county of Allegheny; that the presiding judge of said Court of Quarter Sessions has had his personal prejudices and pride aroused, and has made manifest his inability to preside impartially and with a due regard to the rights of the defendants; that if the case be tried in said county the jurors will be persons whose minds have been inflamed and prejudices excited against the defendants ; and avers “ that a fair and. impartial trial cannot be -had before the said judge and before a jury of Warren county, nor at a trial to be held in said county or in the neighborhood thereof where the said public excitement has prevailed.”
The defendants admit that they are not entitled to a change of venue under any Act of Assembly. They do not allege any error in the record. Upon the verity of their showing no ground exists for action by the appellate court. Were this court to seize and try the cause it would be an exercise of original jurisdiction prohibited by the constitution. There being no error in the record, there is no cause for the writ: Cases have been cited which were removed into this court prior to 1874, where a court of nisi prius was ordered to be held in the proper county for the trial; all such cases were when this court had original jurisdiction, and before the court of nisiprius was abolished.
Authorities are abundant that the judges of this court, by virtue of their offices, may act as judges of the Oyer and Terminer in the several counties ; but there is no authority that one or more judges of this court, when holding a court of Oyer and Terminer in a county, can remove a case to or -from that" county, which could not be so removed by the same court when held by one or more judges of the Court of Common Pleas. The jurisdiction, and powers of the Court of Oyer and Terminer are defined by the laws. A judge of this court may go into the county of Warren and preside over the Court of Oyer and Terminer, and while he is there holding said court the judges of the Common Pleas shall not act as judges of the Oyer and Terminer. Had the petitioners requested that some of the judges of this court should hold a Court of Oyer and Terminer in the county of Warren, it might be considered whether their aspersions of the able and upright'president judge of the Court of Quarter Sessions-are cause for granting their request. Then it might be enquired, What power has the Court of Oyer and Terminer over a case pending in the Quarter Sessions, held by a judge of the Common Pleas, and which may be lawfully tried in the Quarter Sessions ?
The foregoing indicates the reasons why I was opposed to *387the granting of the rule to show cause, and to the stay of proceedings in the court below, and why I would discharge the rule.
Gordon and Clark, JJ., concur in this dissent.Per Curiam. — April 12th, 1886. — It is ordered that the indictment and proceedings be sent down to the Court of Quarter Sessions of Lycoming county with instructions to try the said indictment in all respects as if the same had been originally found in said court. Said trial to be on the 6th dajr of September next, unless upon legal cause shown said trial shall be continued, and shall be at the expense of Warren county.
Mr. Justice Trunkey dissented, and filed a dissenting opinion, in which Gordon and Clark, JJ., concur.