dissenting.—The writ states “ that, by the amended constitution of this state, which was agreed to in the convention on the 22d of February 1838, and adapted, ratified, and conjirpied by the citizens of this commonwealth on the 9th day of October 1838, and the fact of its being so adopted, duly declared and proclaimed on the 11th of December 1838, it is provided by the second section of the fifth article as follows, viz: The judges of the supreme court, pf the several courts of common pleas, and of such other courts of record as are or shall be established by law, shall be nominated by the governor, and, by and with the consent of the senate, appointed and commissioned by him. The judges of the supreme court shall hold their offices fifteen years, if so long they shall behave themselves well. The president judges of the courts of common pleas and of such other courts of record as are or shall be established by law, and all other judges required to be learned in the law, shall hold, their offices for the term of ten years, if they so long behave themselves well. That in the seventh section of the schedule of said constitution it is provided as follows: The commissions of the presidents of the several judicial districts and of the associate law judges of the first judicial district, shall expire as follows: The commissions of one-half of those who shall have held their offices ten years or more at the adoption of the amendments to the constitution, shall expire on the 27th of February 1839, and the other half of those who shall have held their offices ten years at the adoption of the amendments to the constitution, shall expire on the 27th of February 1842; the first half to embrace those whose commissions shall bear the oldest date. The commissions of all the .remaining judges who shall not have held their offices for ten years at the adoption of the amendments to the constitution, shall expire on the 27th of February next after the end of ten years from the date of their commissions.” It then proceeds to state that at the adoption of the amendments to the constitution, to wit: on the 9th of October 1838, 0. Collins held the office of president judge of the second judicial district of Pennsylvania, by virtue of a commission bearing date the 8th of August 1836, by virtue of a commission of that date, and continued to hold said commission and office up to the 26th of December 183S. That on the said 26th of December last ptist the *346said 0. Collins resigned the said commission of president judge of said district; and, on the 27th day of December, the day following the date of said resignation, was again commissioned to the same office he had before held, by Joseph Ritner, Esq., then being governor of the said commonwealth of Pennsylvania, under and by virtue of the fifth section of the schedule to the amended constitution. That notwithstanding the resignation of the commission held by the said Oristus Collins at the adoption of the amendments to the said constitution as above mentioned, and the foregoing provisions of the said amended constitution, and the second section of the schedule of said amended constitution, which is in' the words following, to wit: “The alterations and amendments in the said constitution shall take effect from the 1st day of January 1839.” The said Oristus Collins continues to hold and exercise the office of president judge of the second judicial district of Pennsylvania, without warrant or lawful authority for so doing, “wherefore the attorney-general, &c.
■ The respondent states that, on the 27th day of December 1S38, the governor issued to him a commission, &c.; that the office of president judge was at that time vacant, &c.; and a protestation that the vote on the 9th of October 1838 was on the expediency of adopting the amended constitution on the 1st of January 1839, &c. To this there was a demurrer and joinder.
The decision of this case was argued on the meaning of the words adopt or adoption in the constitution and schedule, and the time when the amended constitution became the law of this state, and the construction of the seventh section of the schedule annexed to the amendments.
It may be proper to notice the different forms of expression used by the legislature in the several acts of assembly relating to this subject.
Ón the 14th of April 1835, an act of assembly was passed submitting it to the people to vote at the election in October then next, on the expediency of calling a convention.
On the 19th of January 1836, an act was passed providing for the election of members of the convention.
In the sixth section we find the words, “and when the amendments shall have been agreed on by the convention.”
In the eighth section, for the purpose of ascertaining the sense of the citizens “ on the expediency of adopting the amendments so agreed upon by the convention,” an election was to be held, &c.
Sections nine and ten direct the mode of conducting the election, of making the returns, and counting the votes, and certifying the result by a certificate to be filed in the office of the secretary of the commonwealth, and another delivered to the governor, whose duty it shall be to declare by proclamation whether the said amendments have been or have not been adopted by the freemen of the commonwealth.
*347On the 22d of February 1838 the labor of the convention closed, and the amended constitution was signed and published according to law, and on the 9th of October 1838, the people confirmed it by a majority of votes.
On the 11th of December 1838, the votes were counted, and a certificate of the speaker of the senate, stating the number of votes for the amendments and against the amendments, and on this being transmitted to the governor, he on the same day issued a proclamation, stating the number of votes for and against the amendments, having a majority for said amendments, and therefore he declared, in pursuance of the act of assembly, that the said amendments have been adopted by the freemen of this commonwealth—and that they are to go into operation and be in force in the manner and at the time set forth and named in the said amendments and schedule thereto annexed. So far we have the language of the acts of assembly—agreed, approved, expediency of adopting, and the proclamation in the words of the act of assembly, that the amendments had been adopted, and to go into operation, &c.
In the constitution itself we find in the article 1, sect. 9, “ The senators who may be elected at the first general election, after the adoption of the amendments to the constitution, shall be divided into three classes. The seats of the senators of the first class shall be vacated at the expiration of the first year; of the second class, at the expiration of the second year; of the third class, at the expiration of the third year; so that thereafter one-third of the whole number of senators may be chosen every year. The senators elected before the amendments to the constitution shall be adopted, shall hold their offices during the time for which they shall respectively have been elected.”
As “each house shall judge of the qualifications of its members,” it does not seem proper that we should say any thing on this section, but it is certain that the senate have not considered this clause to apply to the members elected last October.
In article 6, sect. 10, we find as follows: “Any person who shall, after the adoption of the amendments proposed by this'convention to the constitution, fight a duel or send a challenge for that purpose, or be aider or abettor in fighting a duel, shall be deprived of the right of holding any office of honour or profit in this state, and shall be punished otherwise, as is or may be provided by law; but the executive may remit the said offence and all its disqualifications.” Now, when we see that the second section of the schedule says, “ The alterations and amendments in the said constitution shall take effect from the first day of January 183,9, and that the duelling cause is one of these alterations, we can have no doubt of the meaning of the word adoption, as used in it. No court, nor lawyer, nor intelligent layman will say a man is to be deprived of any right, or subjected to any punishment by any law, before that law takes *348effect. The time designated in the above section by the word adoption of the amendments, means, and must mean, the 1st of January 1839, when these amendments were to take effect.
The constitution derives its force and effect immediately from the people. They, and they only, can agree to it, approve it, adopt it, or in the words used in the constitution of the United States, ordain and establish it, as in the first clause, or as in the last clause of that instrument. “ The ratification of the conventions of nine states shall be sufficient for the establishment of this constitution between the states so ratifying the same.” Neither the legislature nor any branch of it, were required to do any act except count the votes and certify the result; and the governor had no duty nor power except to proclaim that result. The sanction of neither legislature nor governor was required, and whether they approved- or disapproved of it, did not affect its validity. The people by their votes approved, or adopted, or ratified, or established it, and they acted on 9th of October 183S. In a popular sense they then adopted it; but they adopted it as it was written, and no otherwise. A schedule was subjoined to it, and forms part of it; most of its provisions are temporary, and when once acted on, become useless; but they have the same force and obligation as the other parts of the instrument, and are derived from the same source viz., the people. That schedule was prepared that no inconvenience arise in the transition of the government from the old to the new constitution, and it ordained that—
§ 1. “All laws of this commonwealth in force at the time when the said alterations and amendments shall take effect, and not inconsistent therewith, and all rights, prosecutions, claims and contracts, as well of individuals as of bodies corporate, shall continue as if the said alterations and amendments had not been made.”
§ 2. “ The alterations and amendments in the said constitution shall take effect from the first day of January 1839.” The words, unless otherwise provided in this schedule, must be understood here. This will be more apparent on viewing the other sections which follow: for on most, if not all the offices, it did not take effect on the first of January 1839; and on some of them not for more than ten years after that time.
The third section does not seem material in this case. .
So of the fourth section.
§ 5. “The governor who shall be elected in October 1838, shall be inaugurated on the third Tuesday in January 1839, to which time the present executive term is hereby extended.”
This alteration was eminently necessary, that no inconvenience might arise from the change from under the old to the new constitution; and whatever may be said of the precision of the language of this instrument, there has been and can be no serious difficulty as,,to this. “The executive term is extended,” can have but one meaning; it includes the duties, and the powers, and the ernolu*349ments of the whole executive department, and carries it on to the period designated, neither increased nor diminished; it remains as it was under the old constitution, at least until 1st January 1839, and as it is under the new one from that time until it expired by its limitation.
Let us not mistake either things or words. A constitution is but a law; it emanates from the people, the depositary, and the only one, of all political power; it is, therefore, the supreme law. It organizes and defines the different parts of the government, confers on each department the powers and duties allotted to each, and limits the powers of every department. It has this further quality: having distributed the different powers to>the different departments, it leaves those powers to be erected by those departments, and leaves to the sovereign people themselves no other power than that of choosing their own officers or representatives. The people can do no act, except make a new constitution or make a revolution.
Still a constitution is but a law, though it is the supreme law: and it is to be construed as every other law, though it is sometimes the law by which acts of the legislature, and which are generally termed laws, are to be tested. It is common, and our books are full of them, to enact laws to take effect from the time when signed by the speakers of both houses and the governor; but it is also common to enact laws which are not to go into operation for a specified time; and though, in each case, we find “ be it enacted and it is hereby enacted,” it is no law until the specified time arrives.
I have before me an act passed 24th of February 1834; the last section is—this act shall take effect from and after the first day of October next; and all such acts of assembly as are hereby altered or supplied, shall be and are hereby repealed, except so far as may be necessary to finish proceedings commenced, &c. Now this act of assembly, though it had gone through all the forms, and received all the sanctions requisite to give it validity and make it binding, was no law until the first of October, eight months after it passed. Until that day, the existing laws which it repealed, when it took effect, continued in full force.
This is more clearly and distinctly the case with a constitution, which being the supreme law, there can not be two supreme laws at the same time, requiring different duties and conferring different powers. Let us not mistake a constitution, which confers powers and requires duties, and permits one thing and forbids another— let us not mistake it for the printed or written paper on which we find it. It is the great rule of action, having the highest sanction— it consists of the principles and regulations established by it—it is more than the paper and ink—when, in the sense contended for and in a sense which at first seems to meet popular opinion, it is said to have been adopted. ” It, as a constitution—as a rule of action—as the supreme law of the land, Jiad no existence, it was a dead letter—it was powerless—it was nothing but the expression *350of an intention—a declaration of what would be hereafter, until long after the 9th of October 1838. The old constitution continued in force—it was the governing rule of action, as well of individuals as of officers and departments—it was the supreme law until it expired on the first of January 1839. Words must have meaning, especially in important matters; when a constitution is adopted, it must be adopted as the supreme law of the land. If this is not the case, in what situation were the good people of the state from the 9th of October until the 11th of December? The majority was small—it was doubted on which side it was; no functionary of the government knew what would be the result, and none would have dared to act, had it not been that, by the very instrument itself, it was provided that the old constitution should continue in force until the first of January 1839.
The eighth section of the act of the 29th of March IS36, expressed the true meaning, and the only rational one, “ for the purpose of ascertaining the sense of the people, on the expediency of adopting the amendments agreed upon by the convention;” the election was to be held, and the tenth section, which directs that proclamation should be made whether the amendments have been or have not been adopted, is inaccurate. The proclamation of the governor, that the amendments have been adopted, and that they are to go into operation and be in force in the manner and at the time set forth and named in said amendment and schedule thereto annexed, is nearer the truth. The amendments, properly considered, as what they are, the supreme law of the land, could not be adopted in that sense, and were not intended to be adopted in that sense until the 1st of January, 1S39, it then became the supreme law of the state. Let us advert more particularly to the constitution of the United States, and its history. It begins: “ We, the people of the United States, in order to form a more perfect union, establish justice, &c. &c., do ordain and establish this constitution for the United States of America.” And it ends: “The ratification of the conventions of nine states shall be sufficient for the establishment of this constitution between the states so ratifying the same.” Now these words are stronger than the word adopt; and the expressions are as positive as the governor’s proclamation. It was ratified, or agreed to, or adopted, by eleven states in succession between May and the 17th of September 1788. On the 2Sth of September 1788, congress, sitting under the old confederation, notified the governors of this fact. I have not their letter, but Marshal, C. J , 5 Wheaton 420, says congress notified the states that it was adopted. And the expression that it was adopted at particular times by the states in succession, is used by him in his life of Washington, and by other writers; but when the time of its adoption is thus spoken of, it is figurative. The adoption or ratification of eight states left it an able .paper, but not a constitution; it did not become one until the ninth state ratified or adopted it. Nay, it was no constitution; *351it was not the supreme law of the land before the 5th of March 1789, and so decided by the Supreme Court of the United States in the case last cited. The legislature of Virginia, in October 1788, passed a law which, after the adoption of the federal constitution, would have been void; but this constitution ordained, established, ratified and adopted by more than nine states, was held to be not yet in existence; it was not the law of the land; it had no force or effect till the government was organized under it. This statement proves, as far as the highest authority can prove, that it may be said a constitution is adopted, and yet when figurative language is laid aside, and judicial decision is required, it is found that the constitution, so far from being adopted as the organization of the government and supreme law, was still a dead letter, affecting nobody and restraining nobody.
The words adopted, or adoption, are vague and indefinite, and we must gather the precise meaning from the context, and the whole instrument. Now, in the two clauses in the body of the constitution, they must mean the time when the constitution became the law of the land, or the sentences in which they are used are absurd.
If we look to the remaining sections, of this schedule, which extend to twelve, we shall find every one of them predicated on the idea that the old constitution continued until the 1st of January 1839; and though this is not said so in express words, yet it is so by necessary implication, which is as strong in law and in reason as direct assertion; and provision is made for the appointment of every officer from the highest to the lowest, of those heretofore appointed by the governor. It is assumed throughout, that though the tenure of office and mode of appointment is changed, the office and the officer are continued until the times prescribed.
The sixth section relates to the commissions of the judges of the supreme court, who shall be in office on the first of January 1839, and directs when their commissions shall expire at each consecutive period of three years.
I think it will appear that all the remaining sections refer to and speak as of this 1st of January 1839.
The seventh section is most material. It is: “ The commissions of the president judges of the several judicial districts, and of the associate law judges of the first judicial district, shall expire as follows: The commissions of one-half of those who shall have held their offices ten years or more, at the adoption of the amendments to the constitution, shall expire on the 27th day of February 1839. The commissions of the other half of those who shall have held their offices ten years or more at the adoption of the amendments to the constitution, shall expire on the 27th day of February 1842. The first half to embrace those whose commissions shall bear the oldest date. The commissions of all the remaining judges who shall not have held their commissions ten years at the adoption of *352the amendments to the constitution, shall expire on the 27th of February next after the end. of ten years from the date of their commissions.”
§ 8. The recorders of the several mayors’ courts, and other criminal courts of this commonwealth, shall be appointed for the same time and in the same manner as the president judges of the several judicial districts of those now in office. The commissions oldest in date shall expire on the 27th of February 1842, and the others every two years thereafter, according to their respective dates, the oldest expiring first..
§ 9. The legislature at the first session under the amended constitution, shall divide the other associate judges of the state into four classes. The commissions of those of the first class shall expire on the 27th of February 1840, &c., &c., till 1843, according to the dates of their commissions.
§ 10. The prothonotaries, clerks of the several courts, (except of the supreme court,) recorders of deeds, and registers of wills, shall be first elected, under the amended constitution, at the election of representatives in the year 1839, in such manner as may be prescribed by law.
§ 12. The first election for aldermen and justices of the peace shall be held in the year 1840, at the time fixed for the election of constables, &c.
I think it is apparent all these sections refer to the 1st of January 1839, though not in words, yet in a manner not to be mistaken. All the' officers without exception would continue in office until that time. There was no occasion to speak of, or provide for them before that time. To prevent the confusion which would have ensued from every office expiring on that day, the several offices are to expire at different periods, and the time of each is by necessary implication extended to the time designated for the change. It is also obvious there was no intention that any one office should become vacant until the time therein mentioned. Even in the eighth section the words “now in office,” must fairly be applied to mean by “now” the 1st of January 1839. There are but three or four recorders—if all had died or resigned, there would not on any other construction have been any provision for the others; at least none easily understood—but if “now” in that sentence means the 1st of January 1839, there can be no difficulty.
I go back to the seventh seclion. The commissions of the president. judges. What president judges? Certainly of those who shall hold that office when the constitution affected them—of those who should be then in office. The president judges of the several judicial districts, includes all. It is equivalent to “the commissions of all the president judges of the state.” No one can deny this branch of the sentence includes every one, and plainly manifests an intention to provide for every one—for every one whose tenure of office would be affected by the new form of government. *353The sentence then is explicit as if it had been written, “ the commissions of all the president judges'of this state shall expire as follows: Of the judges who shall have held office ten years or more at the adoption of the amendments, one-half shall expire on the 27th of February 1S39, and the other half on the 27th of February 1842. The first half to embrace those whose commissions bear the oldest date.” Let it be observed the commissions are to expire in order—not of the length of time the officer has been in office, but according to the dates of the commissions. This is not accidental, it occurs before. The time when the offices of the judges of the supreme court expire depends on the date of the commission. This branch of the sentence is also affirmative and iuclndes those who shall have held their offices ten years or more—it is also exclusive, it has no relation to, nor effect upon those who had not held office ten years—let us attend to the remaining part of the section. “The commissioners of all the remaining judges who shall not have held their office ten years at the adoption of the amendments to the constitution, shall expire on the 27th of February next after ten years from the date of their respective commissions.” The prosecution would read this thus: The commissions of the remaining judges who shall have held their offices less than ten years at the adoption of the amendments—and thus excludes those who did not hold their office at the adoption—but no man can gravely say this does not change the meaning, and I know of no authority to leave out the word “ not” and insert “ less than,” most clearly the word “all” in the beginning of the sentence is material, and can only be rejected by those who insist for a particular construction. The presidents of the several judicial districts includes all in the state. Those who have held commissions ten years and all the remaining judges who have not held commissions ten years, also include all the judges in the state; and Judge Collins did not hold his office ten years, and is embraced by the last clause. When the mode of expression is changed, and the first clause is inclusive of only a part, and the last is negative of those mentioned in the first clause, I know of no authority for changing it for other words conveying a different meaning; at least no authority when the words do convey a different meaning; besides the construction contended for makes the whole section inconsistent, for the first part clearly indicates an intention to provide for the case of every judge in the state. My construction of the last clause does so; all who held office a certain length of time, and those who had not held office for that length of time, include all the judges in the state. If I am right as to the time of adopting the amended constitution, there can be do dispute as to my conclusion. But if the amendments were, and if the meaning of the sentence compels us to say they were, adopted on the 9th of October, I still say the seventh section includes those who were not, as well as those who were, judges on that day.
*354It would be easy to quote authority of the highest courts and best writers as to the construction of words and sentences, and especially of them as used in a constitution. Men of critical and philological acuteness have been able, and will always be able to raise plausible disputes as to the meaning of instruments prepared with great care. Almost every important word is used sometimes in a plain and sometimes in a figurative sense; and words are-constantly acquiring a meaning different from what they once had, and are constantly used and understood in a manner not strictly accurate. I make a power of attorney, and near the close of it say— and I do hereby ratify and confirm whatever my said attorney may do, &c., &c.; now both words, ratify and confirm, in strictness only apply to what has been done, not what is to be done. The meaning is, I agree, that I will ratify and confirm; such form of expression is not uncommon. If we consider a constitution as what it really is—as a form of government, organizing the different departments of that government, changing the old and introducing new provisions—if we consider a constitution as the supreme law, and ■recollect that there can not be, at the same time, two different supreme laws, it seems clear it can only be adopted when it supersedes and displaces the old one, and becomes in reality the supreme and controlling law.
I disclaim all knowledge of express intention in the framers .of this instrument, because there was much diversity of opinion and probably of intention; also, because I do not believe the very case occurred to the convention, or to even a large proportion of it.
It is not necessary to say that Mr Collins, on his resignation, was a private citizen, and could as legally and constitutionally be appointed a judge, as if he had never had a commission. This was not denied; nor was it seriously contended, nor, I think, can it be, that Governor Ritner could not constitutionally appoint any qualified man to any vacant office. The eleventh section is express: “ The appointing power shall continue as heretofore.”
I do not suppose it possible, in any case of a dispute on the construction of any instrument, to convince every person. I have considered this case much and carefully, and have come to the conclusion, as well from what I suppose to be the intent of the whole schedule as from the words. In the clause as to duelling,it is clear the word adoption relates to the first of January 1839. I think it clear, the intention was to provide for every officer, and the beginning of the section is express, that it was intended to provide for every president judge, and- that the convention used words which will include every judge, and that judgment ought to be for the respondent. " ■