(dissenting). After repeated and most careful consideration, I have found myself unable to agree with my associates in the conclusions they have arrived at in this case.
The question before us is, whether various acts of the legislature of 1895, purporting to abolish certain courts, including the Court of Common Pleas, and to establish in each county a new court, to be- called the County Court, were within the power of the legislature to enact.
Before a court can rightfully pronounce legislative acts invalid because of their opposition to the provisions of the constitution, such opposition ought to be clear and beyond doubt.
In the case before us, I have not found any clear and undoubted discrepancy between the acts complained of and the constitution. On the contrary, I think that giving to the pertinent clauses of the constitution a reasonable construction —such a construction as was almost contemporaneously given and acquiesced in and practiced under for over forty years and approved by a solemn adjudication of this court—the people thereby conferred upon the legislature power to pass the acts in question.
The courts affected by those acts are the Court of Oyer and Terminer and General Jail Delivery, the Court of General Quarter Sessions of the Peace and the Inferior Court of Common Pleas.
*91The first pertinent clause in the constitution is that contained in section 1, article 6, which reads as follows: “The judicial power shall be vested in a Court of Errors and Appeals in the last resort in all causes as heretofore, a Court for the Trial of Impeachments, a Court of Chancery, a Prerogative Court, a Supreme Court, Circuit Courts, and such inferior courts as now exist and as may be hereafter ordained and established by law; which inferior courts the legislature may alter or abolish, as the public good shall require.”
It is conceded that the Court of Oyer and Terminer and General Jail Delivery and the Court of General Quarter Sessions of the Peace, were, at the adoption of the constitution of 1844, inferior courts then existing, and that, by the clause above quoted, complete power was given to the legislature to alter or abolish them, when, in its judgment, the public good required.
Nor is there any serious contention that the Court of Common Pleas was not also an inferior court existing at the adoption of that constitution. It is true it was a court of-great antiquity, having come down from provincial and colonial times. But it was always a court of limited jurisdiction and powers. It was always named in its records and pleadings as the “ Inferior Court of Common Pleas.” Such was the name given it in the constitution of July 2d, 1776, and in numerous acts of the legislature. And it was also so called in the constitution adopted in 1844. It not only was, but was then universally recognized as, an inferior court. To my mind, it does not admit of the least doubt that if the clause now under consideration stood alone, it conferred upon the legislature power Over the Court of Common Pleas of equal extent and efficacy as that conferred in respect to other inferior courts. This proposition seems conceded by my associates.
But the claim is that the grant of power to alter and. abolish the Inferior Court of Common Pleas conferred on the legislature by language the meaning of which it is impossible to mistake, is,.by other clauses of the same constitution, *92either wholly taken away or materially restrained and limited. It is here that my associates and I part company. In my judgment, the express power given to the legislature by this clause, over the Inferior Court of Common Pleas, is neither taken away nor diminished by any other part of that instrument.
The clauses to which my associates attribute this effect are the following, viz.: The two paragraphs of section 6, of article 6, which prescribe a limit on the number of the judges of the Inferior Court of Common Pleas, fix . their term of office and provide for a commission which shall evidence their official status, and paragraph 2, of section 2, of article 7, which, as originally adopted in 1844, prescribed that such judges should be appointed by the senate and general assembly in joint meeting. One of the .amendments to the constitution adopted in 1875, provided for the insertion in paragraph 1 of the last-named section (which paragraph required nomination and appointment by the governor with the advice and consent of the senate) of the words “and judges of the Inferior Court of Common Pleas,” But by a singular inadvertence, paragraph 2, which provided for the appointment of such judges by the joint meeting of both houses of the legislature, was not stricken out of the constitution. An ineffectual attempt to strike it out was made in 1890, and the two clauses now stand in our constitution. But as the amendment of 1875 clearly expressed the people’s intent that such judges should be nominated and appointed' by the governor with the advice and consent of the senate, which appointment was incompatible with the mode provided by paragraph 2, subsequent governors and senates have properly treated the latter paragraph as repealed by implication.
The line of argument, then, is that while the constitution, by express terms,- incapable in themselves of any other construction, has conferred upon the legislature power to alter or abolish the Inferior Court of Common Pleas when, in its judgment, the public good requires, yet that,, by the clauses *93of the constitution providing for the mode of appointment^ &c., of the judges of that court, the granted power, is either wholly taken away or so restrained and limited as to prevent the legislature from transferring the jurisdiction and functions of that court to any other court or to judges appointed in any other mode.
The rule of construction to be applied in such cases is free from doubt. • That rule is that, while the whole instrument is to be examined and considered in determining the construction to be given to any part, yet if a part of the instrument, by express and unmistakable words, grants a power, such grant must not be construed as defeated, or even limited in its operation by other clauses of the same instrument, unless the latter are wholly incompatible with the unrestricted grant. If they can reasonably be construed in harmony with the grant, such construction must be given them, so that the grant may have its full effect.
I find no difficulty in construing these clauses of the constitution so as to preserve the power granted to the legislature to alter or abolish the Inferior Court of Common Pleas unimpaired and unlimited. That court, being in existence at the adoption of the constitution of 1844, was impliedly continued with its powers and jurisdiction until the legislature should deem the public good required its alteration or abolition. Until that time arrived, the judges of that court were to be appointed in the prescribed manner. When the legislature should exercise its power to alter or abolish the court, and its act left no office of a judge of that court existing, then the other clauses providing for their appointment would cease to be operative. The office being gone, no appointment could be made.
But it is said that it is unreasonable to conceive that the people, in adopting the constitution of 1844 and the amendment of 1875, meant to prescribe a mode of' appointment of these judges, which the legislature might at any time make nugatory by the alteration or abolition of the court. But let üs see into what a dilemma we are led by adopting the con*94trary view. When the people conferred on the legislature power to alter or abolish this court, we are to presume that they meant what they said. Nor was this a mere permission to the legislature. It obviously contained an implied mandate to alter or abolish- the court when the legislature should deem the public good required. Surely, it is infinitely more reasonable to presume that the people intended to limit the prescribed appointment to the duration of the court, which leaves this mandate in full force, than to conceive that, by prescribing the appointment, they intended to deprive the mandate of all force, for I think it must be admitted that the construction adopted by my associates does, in fact, deprive the legislature of all power to alter or abolish this court. If these judges must be continually appointed, with the functions and jurisdiction previously possessed, then the legislature cannot possess the control over this court which the constitution intended, and it must remain unchanged, even if the legislature adjudges that the public good required alteration or abolition. If the legislature is restricted- to a mere abolition of the court, without power to transfer its functions to another court, then the power apparently granted can never be exercised. The Inferior Court of Common Pleas possesses some concurrent jurisdiction. Upon its abolition, matters falling within that jurisdiction could doubtless be dealt with by other courts. But it also possesses a jurisdiction in many matters which is peculiar to itself and exclusive. In this jurisdiction is included, among other things, the power to lay out roads, to license inns and to hear and determine appeals from justices’ courts. If these peculiar functions, of such public importance, cannot be transferred to and placed within the jurisdiction of other courts, it is obvious that the public good could never require its abolition. It becomes practically unassailable, and the granted power to abolish is nugatory and of no value.
It is also said in the same line that, admitting the power of the legislature to abolish this court, the acts now before us are an evasive exercise of that power. The contention is that *95the Inferior Court of Common Pleas is thereby continued, with its previous jurisdiction, to be exercised under a new name by judges appointed in a different manner from that required by the constitution. This is said to be evasive of the constitution in that regard. But this argument, as well as that before alluded to, omits to recognize that the grant of power to the legislature is not only to abolish, but to alter. If the legislation in question does, as is claimed, abolish the Inferior Court of Common Pleas and create and establish a court of wider jurisdiction, then, in my judgment, it can be supported, under the legislative power to abolish that court. But if it continues the jurisdiction of the Inferior Court of Common Pleas to be exercised by another judge, appointed in a different mode, it is not evasive legislation, but a proper exercise of the legislative power to alter that court.
The reasoning of my associates must necessarily lead to the conclusion that the clause of the constitution in question does not empower the legislature to alter the Inferior Court of Common Pleas, in its judges and their mode of appointment. But such a conclusion is at variance with a construction of this clause almost contemporaneous with its adoption by the people, and which has been acquiesced in and acted upon for so long a period that, in my judgement, it ought not to be departed from.
By the act entitled “An act to reorganize the courts of law,” approved February 9th, 1855 (Pamph. L., p. 17), it was, among other things, enacted that the justices of this court should be ex officio judges of the Inferior Court of Common Pleas. At that time the constitution prescribed that judges of that court should be appointed by the senate and general assembly in joint meeting. It is obvious that in this respect that act can only be sustained upon the construction I have given to the constitutional clause conferring power on the legislature to alter the Inferior Court of Common Pleas. It injected into that court judges who were not appointed in the manner prescribed by the constitution. It was a legislative construction of the clause of the constitution and contained *96an assertion of their power to thus alter the court. That act remains unrepealed, and its provisions were re-enacted in the late Revision as section 26 of the “Act relative to the Supreme and Circuit Courts.” Rev., p. 219. For over forty years it has been acquiesced in and acted upon. Every judge who has sat upon this bench since 1855, has, at times, sat in the Court of Common Pleas and exercised the jurisdiction of a judge of that court. In my judgment, it is too late to adopt a different and opposite construction.
Moreover, I think the constitutionality of the act of February 9th, 1855 (supra), in respect to the provision making justices of this court ex officio judges of the Inferior Court of Common Pleas, has been settled in this court by its decision in Engeman v. State, 25 Vroom 247. One of the questions in that case was whether a Court of General Quarter Sessions, held by a justice of this court and a lay judge of the Court of Common Pleas, was properly constituted and competent to try an indictment. The act of February 9th, 1855, had also made the justices of the Supreme Court ex officio judges of the Court of General Quarter Sessions of the Peace. As has been stated, there can be no question that the legislature had power to thus alter that eourt. But the legislature which clothed the justices of this court with the functions of the judges of the General Quarter Sessions, might deprive them of those functions or restrict them in their use.
By section 23 of the Criminal Procedure act (Rev., p. 270) it was enacted that the Court of General Quarter Sessions in each county should be constituted by any two or more of the judges of the Court of Common Pleas. The act of April 24th, 1887, re-enacted this section. Pamph. L., p. 133. Therefore, unless the justice of this court who sat in the trial of the Engeman case was a judge of the Court of Common Pleas, the'trial court was defectively constituted. The justice of this court was a judge of the Court of Common Pleas only if the act of February 9th, 1855, was a valid exercise of legislative power. That was a question raised, and, as the opinion shows, considered. The decision sustained the *97conviction as before a properly-constituted court, and thus settled that the justices of this court are properly ex officio judges of the Court of Common Pleas under the provisions of that act.
For these reasons I am unable to agree with my associates. In my judgment, the legislation attacked in this case ought to be held to have been within the power of the legislature to enact, and the mandamus should be denied.