dissenting:
As a rule, it is better that a member of a court of last resort, not concurring in the view of the majority, confine, if pos*91sible, his dissent to the consultation room. This is especially true in the disposition of constitutional questions, which are always important. But there are times when public dissent cannot be withheld without being misunderstood, and, as I am unwilling to be understood as concurring in the view of the majority of my brethren in this case, I must dissent of record, and briefly state my reasons for doing so.
By section 22 of the judiciary article of the constitution, creating separate orphans’ courts, it is provided that they are to exercise all the jurisdiction and powers vested in orphans’ courts at the time of the adoption of the constitution, and, in addition, such as might thereafter be conferred. The act of 1905 confers no jurisdiction or powers upon separate orphans’ courts. These are just what they were before the passage of the act, and the judges of the separate orphans’ courts can now do nothing in their own courts that they could not have done prior to April 18,1905 ; but, when transplanted into the equity side of a court of common pleas by the process pointed out by the act, a judge of the orphans’ court becomes, so long as he remains there, a judge of that court. The words of the act are, that while sitting in the common pleas at the invitation of one of its judges, “ he shall bo deemed to be specially presiding in, and to have the powers of, the court of common pleas of the proper county, sitting in equity.” When this was enacted, section 15 of the same article of the constitution was either overlooked or forgotten. It declares that “ all judges required to be learned in the law, except the judges of the supreme court, shall be elected by the qualified electors of the respective districts over which they are to preside.” The common pleas is recognized by the constitution as a distinct court from a separate orphans’ court, and the words of the 15th section of the judiciary article mean that the judges of the common pleas shall be elected as such by the qualified electors of the district over which they preside; and so of the judges of the separate orphans’ courts. How, then, can one sit on the judgment seat of the common pleas unless he is sent to it as one of its judges “ by the qualified electors ” ? The constitution declares that to be the only way in which a seat there can be reached, and the legislature cannot point out any other. It may modify and change the jurisdiction and powers of the *92court of common pleas, but it cannot change the mode of the selection of its judges. If the legislature can authorize a judge ' of the common pleas to call an orphans’ court judge to his assistance as a temporary part of his court, why can it not authorize the calling of any member of the bar for such a purpose ? If allowed to sit in the common pleas as one of its judges, a judge of the orphans’ court will not be there simply as an examiner or master to aid that court, but as a component part of it, and, when- sitting or presiding alone, the court itself. Even if the legislature could direct an orphans’ court judge to sit and act as a judge of the common pleas, it has not undertaken to do so, but has committed or delegated to a common pleas judge the power to create, for the time being, out of an orphans’ court judge a judge of his own court and to clothe him with all of his equity powers and jurisdiction. If for no other reason, for this delegation of power, which, if it existed at all, would be in the legislature alone, not to be delegated by it to any one, the act ought not to be sustained.
It is true that the Act of April 2,1860, P. L. 552, providing that a president judge in any judicial district in the state may call in another judge to hold courts for him, was sustained, but the cases sustaining it are certainly not to be stretched in view of what has been said of them, and in citing them as authority for the constitutionality of this act, it has been entirely overlooked that under that act, when one judge calls in another to hold court for him, the judge called has in his own court, to which he was elected by the qualified electors, the same jurisdiction and powers that the calling judge possesses, and into the court outside of Ijiis district the invited judge takes with him all the powers which he possesses in his own court; but not so here. In his own court the orphans’ court judge has no more jurisdiction over a bill in equity for a decree for specific performance of a contract between living parties than a justice of the peace; but by the act of 1905, when he gets into the common pleas, he at once acquires all of its equity powers.
The spectacle of a judge of a separate oiphans’ court sitting in the common pleas under the act of 1905 is truly anomalous. He is not a common pleas judge, for he was not elected as such, and, therefore, possesses none of the powers of such a judge. In his own court he cannot do what he does in the court into *93which he goes, for in his owm. court he has no such jurisdiction and powers, even under the act of 1905, as he exercises in the common pleas. This is a situation not only not contemplated by the constitution, but in clear violation of it.
Mestrezat and Stewart, JJ., concur in the dissent.