dissenting:
I can hardly imagine a case where I would not concur in enforcing the execution of a judgment while it stands, although I had dissented from the judgment itself. To avoid the appearance of dissenting from proper action to enforce a judgment I shall briefly state why I do not concur in this order.
There is no difference of opinion respecting the extent of the original jurisdiction of the supreme court prior to the adoption of the Constitution of 1871. It is agreed “that the original jurisdiction of the court, excepting in the excepted cases, is abolished;” that the court of nisi prints is abolished; that the judges of this court are ex officio judges of the courts of oyer and terminer in every county in the state; and that one or more judges of this court may hold the court of oyer and terminer.
The petition prayed that, upon the return of the writ, this court will proceed to the trial, decision, and determination of the case. Of course it is impossible to grant this specific prayer, for the case is not one of the excepted cases, and therefore is *260only within the appellate 'jurisdiction of this court. Following the specific prayer is a prayer “for such other and further relief as to your honors shall seem meet and the circumstances may require.”
At the argument, the able and astute counsel for defendants urged that the statutes defining the original jurisdiction of the supreme court, clothing it with the powers of the court of King’s Bench, are still in force notwithstanding the Constitution of 1874; and that in the exercise of such powers this court, by certiorari, may bring in criminal cases for trial and try them in any county in the state; but it was not contended or pretended that this court would, or legally could, send criminal causes from one county to another to be tried in the courts of quarter sessions, or in the courts of oyer and terminer when held by the judges of the courts of common pleas. Such an exercise of power is without precedent,, and to that I dissent; not to the holding of courts of oyer and terminer by judges of this court whenever and wherever it may be deemed advisable.
When the supreme court had original jurisdiction it cotdd try criminal cases in any county in the state, and then it could be said that there was no change of venue; that a change of venue was out of the question; and that only the place of trial was changed, for the whole state was within the jurisdiction of the court. But with all its powers it never transferred a case from the court of quarter sessions in one county to the court of quarter sessions in another county for trial. Then the cases were brought within its jurisdiction for the professed purpose of trial hy itself, not. for a mere change of venue.
The petitioners aver “that no relief is afforded them by the terms and provisions of any existing acts of assembly; there being no provision made, as they are advised, for a change of venue in cases like the present, which is a misdemeanor only, not a felony.”
To bring up a criminal case by certiorari from one county and send it to another for trial, whatever the form of the procedure and order, I regard as a single change of venue. To me it seems violating § 23 of article 111 of the Constitution: “The power to change the venue in civil and criminal cases shall be vested in the courts, to be exercised in such manner as shall be provided by law.” The legislature has not imposed *261on this court the power to change the venue in civil or criminal cases.
Mr. Justice Gordon and Mr. Justice Clark concur in this dissent.