dissenting:
The term of office of the relator as a judge of a court of common pleas will expire on the first Monday of January, 1913. His successor in office cannot be elected in 1912. The question raised by this appeal is whether he should *50be elected in 1911, or in 1913. The constitutional and statutory provisions relating to the subject are these: (a) art. V, sec. 15, of the constitution of 1874 provides 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 and shall hold their offices for the period of ten years.” (b) The Act of April 30, 1874, P. L. 118, fixing the time when the terms of judges shall commence, provides: "That the term of office of Judges of the Supreme Court and other Judges learned in the law hereafter elected shall commence on the first Monday of January next succeeding their election.” (c) The constitutional amendment adopted in 1909 provides: "All elections for Judges of the courts of the several Judicial Districts . . . . shall be held on the municipal election days, namely, the Tuesday next following the first Monday of November in each odd-numbered year, but the General Assembly may by law fix a different time, two-thirds of all the members of each House consenting thereto; Provided, That such election shall always be held in an odd-numbered year.” (d) To avoid inconvenience in carrying into operation the amendment of 1909, the schedule provides: "All judges of the courts of the several judicial districts .... holding office at the date of the approval of these amendments whose term of office mav end in the year 1911, shall continue to hold their offices until the first Monday of January 1912.” (e) On March 2,1911, an act was passed that provides that: "All Judges of the courts of the several judicial districts .... holding office at the date of the approval of said amendments, whose commissions expire on the first Monday of January in an odd-numbered year, shall continue to hold their offices until the first Monday of January in the following even-numbered year.” (f) The constitution of 1874 empowers the governor to fill vacancies in judicial offices "happening by death, resignation or otherwise” by appointment to continue until the first Monday of January next succeeding the first general *51election that should occur three or more months after the happening of such vacancy. One of the amendments adopted in 1909 changes the period for which an appointment shall be made, by extending it until a successor shall be chosen “on the next election day appropriate to such office” according to the amendment making the election in odd-numbered years.
The learned judges of the common pleas in dismissing the petition for a writ of mandamus held that the act of 1874 is unrepealed and unmodified by the amendment of 1909 and that its provision fixing the commencement of judges’ terms “on the first Monday of January next succeeding their election” prevents an election in 1911; that the schedule to the amendments of 1909 did not by implication extend judicial terms; that the act of March 2, 1911, was an attempt to extend the terms of judges beyond the limits fixed by the constitution and is therefore invalid. Their conclusion was that an election cannot, under the amendment, be held in 1911, and that on the first Monday of January, 1913, a vacancy will exist which must be filled by the governor. This conclusion is accepted as correct by the majority of my brethren, but I cannot agree with them.
The situation with which we have to deal may be the result of an oversight; but this is by no means clear, for the words of the amendment have but one meaning, and the people deliberately adopted it. The constitution provides that all judges of the courts of common pleas shall be elected for a term of ten years, but nothing in the amendment changes this by the remotest implication. Judges are still to be elected for a term of ten years, and the amendment merely provides that all of them must be elected in odd-numbered years. This means that the election for judges shall hereafter be biennial. The framer of the amendment of 1909, knew that if it should be adopted it would go into effect immediately upon its adoption, and, therefore, there could be no election of judges in 1910, and vacancies would exist in some districts *52for the period of one year, 1911. In view of this the schedule consistently provided that all judges holding office at the date of the adoption of the amendment whose term would end in the year 1911, should continue to hold office for one year longer. As there could not have been by the terms of the amendment, an election for judges in 1910, and the first election of them would occur in 1911, the terms of those expiring in January, 1911, were extended one year. This is as far as the schedule goes, and nothing could be plainer than the expressed intention of the people that after the first Monday of January, 1911, all judges must be elected in odd-numberéd years and each for a term of ten years.
But if we assume there was an oversight in limiting the extension of terms to those that would end in 1911 and in not applying it to all terms that would end in odd-numbered years, it does not follow that there will be a vacancy. If an adequate provision exists for the election of a successor in each case whose term will commence with the expiration of the term of his predecessor, there will be no vacancy. This provision is found by reading together, as we should, the amendment and the act of 1874. The amendment requires an election in an odd-numbered year, the act provides that the term of office shall commence on the first Monday of January next succeeding the election. When judges could be elected at any annual election, the appropriate time to elect was in November of the year immediately preceding the end of their terms. Now that they are to be elected biennially only, and in odd-numbered years, the appropriate time to elect is in November of the odd-numbered year, nearest the end of their terms. This will give effect to both the constitutional and statutory provisions and to the declared purpose of the people that judges shall be elected by them and that appointments to the office of judge shall be limited to the filling of vacancies happening by death, resignation or otherwise during the term for which a judge was elected. The act of 1874 must yield to the *53constitution in so far as it is inconsistent with the latter. The amendments are self-operating and no legislation is needed to give them effect. To sustain the decree of the common pleas will make more than one-third of the judges of the commonwealth appointive for a period of years. It is inconceivable that there was an intention to divide the judiciary of the state into classes by establishing a system making a part elective and a part appointive.
That there are practical objections to the election of a judge fourteen months before the beginning of his term of office is of course to be conceded, but the people have so willed, and it is not for courts to set their will aside. Their intent, as expressed in the amendment, is free from all ambiguity, and I can see no justification for the substitution by implication of a different intent, not suggested by a word in the amendment. Unwise legislation is bad enough, but worse than it is its attempted correction by the courts. One is wrong in practice; the other is radically wrong in principle. It is not for courts to say what the law should be but what it is and to leave its correction to those on whom that duty devolves.
Brown, J., concurs in this dissent.