Opinion by
Mr. Justice BellConcurring in Part and Dissenting in Part :
Smith filed in this court a Petition for a Writ of Prohibition prohibiting the Judges of the Court of Common Pleas of Lancaster County from putting into effect their Rule of Court No. 43, on the ground that both it and the Amendatory Act of January 14, 1952, which authorized it, are unconstitutional. Smith al*236leged that he had brought an action in trespass to recover damages arising out of an automobile collision; that his damages totalled f249.00; that his action “had been listed for jury trial before the Rule of Court [No. 43] went into effect”; that he desired to have his action tried by a jury; and that under the provisions of the Act of 1952 and the Rule of Court, he will be deprived of his constitutional right of a jury trial because the conditions imposed were so “burdensome, oppressive and unreasonable” as to amount to a denial thereof. This Court substituted for the Prohibition petition a rule on the Judges of Lancaster County to show cause why a Writ of Mandamus should not issue directing them to place the case on the jury trial list. The issue is a very important one, viz. whether the Amendatory Act of 1952 or the Rule of Court violate Article I, Section 6, of the Constitution of Pennsylvania, which provides “Trial by jury shall be as heretofore and the right thereof remain inviolate.”
The advantages and the desirability of the Amendatory Act of 1952 and the beneficial results accruing therefrom and which will in all likelihood continue to result therefrom are obvious to Courts and must likewise be obvious to most trial lawyers. Nevertheless, the worthy objectives of or the beneficial results which will flow from an Act are not sufficient to justify a Court in sustaining it if it violates the Constitution.
Authorities are not in agreement on the origin of the right of trial by jury but they are agreed that it is a basic and very important right. In 31 Am. Jur., Page 552, “II Right to Jury Trial” §3, it is said: “The right to jury trial is immemorial. It was brought from England to this country by the colonists, and it has become a part of the birthright of every free man. It is a right which is justly dear to the American people, and one which is expressly guaranteed by the Federal *237Constitution and by tbe Constitutions of tbe several states. In Magna Charta, the basic principle of the right to jury trial is more than once insisted on as the great bulwark of English liberties, especially by the provision that ‘no freeman shall be hurt, in either his person or property . . . unless by lawful judgment of his peers or equals, or by the law of the land’ — a privilege which, according to Blackstone, is ‘couched in almost the same words with that of the Emperor Conrad, two hundred years before’.”
This ancient right of trial by jury was introduced into this country by the English colonists and is regarded as one of the most important basic and fundamental features of American Jurisprudence — a right which must be carefully guarded against infringement; 50 C.J.S. II, Section 9, Page 722.
Our Constitution and our decisions do not give an absolute right of trial by jury in all cases, they merely ordain and guarantee that trial by jury as it existed at the time of the adoption of the Constitution in 1874 shall remain inviolate. Watson Appeal, 377 Pa. 495, 499, 105 A. 2d 576; Haines v. Levin, 51 Pa. 412; Premier Cereal & Beverage Co. v. Pennsylvania Alcohol Permit Board, 292 Pa. 127, 140 A. 858. The right of trial by jury in trespass actions existed prior to the Constitution of 1874 and, therefore, must be protected and preserved.
Statutes which provide for a voluntary arbitration are Constitutional. Statutes which compel parties to submit to arbitration against their will or without their assent, in other words which impose compulsory arbitration, violate the Constitution unless there is thereafter an mvtrammelled right to a trial by jury; cf. Cutler & Hinds v. Richley, 151 Pa. 195, 25 A. 96; Emerick v. Harris, 1 Binney 416; Capital Traction Company *238v. Hof, 174 U. S. 1; 50 C.J.S., Section 118, Pages 832, 833.
The law is aptly stated in Emerick v. Harris, 1 Binney, supra, (Page 423) : “. . . the legislature cannot constitutionally impose any provisions substantially restrictive * of the right of trial by jury . . . the sacred, inherent right of every citizen, a trial by jury, must be preserved. ‘It shall remain inviolate, as heretofore.’ ” In The North Pennsylvania Coal Company v. Snowden, 42 Pa. 488, 491-3, we said: “. . . if there is any right to which, more than all others, the people of Pennsylvania have clung with- unrelaxing grasp, it is that of trial by jury. They brought it with them from the land of their fathers. In every constitution which has been adopted, they have taken care to secure it against infringement, and put it beyond the power of either the executive, the legislature, or the • courts to take it away from any individual. . . . The judiciary, no more than the legislature, can deny to any litigant the right of trial by jury, in a case appropriate to such a mode of trial.” See to the same effect Mansfield’s Case, 22 Pa. Superior Ct. 224, 235.
In Capital Traction Company v. Hof, 174 U. S. supra, the Court said (Pages 27-28) : “. . . by a violation of the trial by jury, I understand taking it away, prohibiting it, or subjecting it to unreasonable and burdensome regulations, which, if they do not amount to a literal prohibition, are, at least, virtually of that character ... It is sufficient, and within the reasonable intendment o.f that instrument, if the trial by. jury .be no.t. impaired, although.it may be .subjected to new .modes, . . ..- A law. containing, arbitrary and unreasonable provisions, .made with .the. intention of annihilating or-impairing the trial by jury, would -be subject *239to the same considerations, as if the object had been openly and directly pursued.”
The Constitution is violated and the right to a jury trial — if the right existed prior thereto — is denied if the Statute or the Eule of Court (1) deprives a party of the right of jury trial or (2) so trammels or fetters it by burdensome restrictions or onerous conditions that this basic American right is substantially or unreasonably encumbered or restricted. Applying that test to the present case, the majority opinion convincingly points out that the real cause of complaint is (a) that the Act requires the fees of the arbitrators must be paid to the County (by the party appealing from the decision of the arbitrators) before the appellant is entitled to a jury trial and (b) that the Eule of Court fixes a minimum fee for the arbitrators of $75.00. Small, reasonable, unburdensome fees and costs are valid and may be imposed by statute or rules of Court. The statute does not by its terms impose conditions or restrictions which are so burdensome or onerous as to prevent a party demanding a jury trial from securing such a trial upon payment of reasonable fees and costs. These could only be such as are imposed upon any litigant who desires a jury trial without arbitration. If that be the proper construction of the Act of 1836 and the Amendatory Act of 1952, as I believe it is, I would hold said Acts to be Constitutional.
I disagree with the majority’s conclusion with regard to Eule of Court No. 43 of Lancastér County. Eule 43 requires, inter alia, that in controversies involving not $1,000.00 or less, but $500.00 or less, a minimum fee of $75.00 shall be paid to the arbitrators. For this reason the Eule is invalid since it does not comply with the enabling Act. Moreover the effect of this Eule is that in a claim for $100.00 or $150.00 or $249.00 a litigant in order to get a jury trial would *240have to pay the customary jury fee plus an onerous fee to three arbitrators of at least $75.00, whereas heretofore in such cases as well as in cases where his claim was for $10,000 or for $1,000,000 or for $10,000,000, he had to pay a jury fee of only a few dollars. Such a Rule is so obviously unfair to the poor man and so discriminatory and unjust that it cannot be sustained; it imposes such burdensome and onerous conditions and restrictions on the Right to Trial by Jury that it plainly and unquestionably violates the Constitution!
The majority opinion is what is often called an advisory opinion — a practice which I have urged should be frequently adopted in important cases. See Clark v. Meade, 377 Pa. 150, 167, 104 A. 2d 465. The majority have suggested two changes for Rule 43 which are advisable and essential. It is impossible and unnecessary for me to now decide whether an amended Rule embodying those two suggestions would be constitutional; nor is it necessary to now decide whether the present Rule 48 is invalid and unconstitutional for the additional reason that it went into effect after petitioner’s case had been listed for jury trial, i.e., after his right thereto had been vested.
In recent years it has become a popular practice throughout our Country to sustain the constitutionality of almost any act that has a desirable objective. That should not suffice to make constitutional what would- otherwise.be unconstitutional. We must realize the, wisdom and necessity of maintaining inviolate precious documents which ordain and guarantee freedom of speech, freedom of religion, freedom of the press, rights ■ of private property and other important basic rights, which have been revered by the people of the United States.
The petitioner sought a right of trial by jury which .was undoubtedly his constitutional right. He cannot *241be deprived thereof by a Rule of Court which violates both the enabling Act and the Constitution.
The Rule to Show Cause should be made absolute!
Mr. Justice Musmanno joins in this opinion.Italics ' throughout, óurs.