concurring:
I concur. I write to express an additional basis for the conclusion reached in the majority opinion.
In article VIII, section 4 of the Constitution of Utah, express provision is made for two instances in which judicial duties may be performed by someone other than an active article VIII judge or justice. That section provides in part:
Except as otherwise provided by this constitution, the Supreme Court by rule may authorize retired justices and judges and judges pro tempore to perform any judicial duties. Judges pro tempore shall be citizens of the United States, Utah residents, and admitted to practice law in Utah.
The quoted language is new language contained in the 1984 amendment to article VIII.1 It seems reasonable to assume that the drafters of the amendment and the electorate when they adopted it contemplated that situations would arise in which an active article VIII judge or justice might not be available to perform a judicial duty or that overloaded calendars would sometimes require additional judicial assistance. Thus, provision was made in section 4 for this court by rule to authorize retired justices and judges, and judges pro tempore “to perform any judicial duties.”2
A well-recognized and often relied-upon rule of construction of language in statutes and constitutions is the maxim expressio uni-us est exclusio alterius. Hansen v. Wilkinson, 658 P.2d 1216, 1217 (Utah 1983) (“ ‘It probably is not wholly inaccurate to suppose that ordinarily when people say one thing they do not mean something else.’ ” (quoting 2A C. Sands, Sutherland Statutory Construction, § 47.01 (4th ed. 1973))). In construing constitutional provisions, the rule has been stated by various courts in different ways. For example, in State ex rel. O’Connell v. Slavin, 75 Wash.2d 554, 559, 452 P.2d 943, 946 (1969), the court stated the rule as follows:
For purposes of constitutional interpretation, the express mention of one thing implies exclusion of another which might logically have been considered at the same time.
In In re Investigation of a Circuit Judge of the Eleventh Judicial Circuit of Florida, 93 So.2d 601, 606 (Fla.1957), the same rule was stated:
*856[W]here the constitution expressly provides the manner of doing a thing, it impliedly forbids it being done in a substantially different manner.
The Supreme Court of Arizona in Whitney v. Bolin, 85 Ariz. 44, 330 P.2d 1003, 1005 (1958), stated the rule as follows:
[T]he enumeration of specified things in a constitution will usually be construed to exclude all other things not so numerated. •
Finally, in Village of Perrysburg v. Ridgway, 108 Ohio St. 245, 253, 140 N.E. 595, 597 (1923), the court wrote that “express delegations of political power are made through constitutional provisions and are necessarily exclusive delegations of power, unless it be expressly provided otherwise.” See also Peck v. State, 63 Idaho 375, 120 P.2d 820, 822 (1941) (citing another expression of the rule).
The rule has been applied in construing constitutional provisions in a wide variety of situations. One such instance is in the construction of constitutional provisions prescribing the qualifications of candidates for public office. In Powell v. McCormack, 395 U.S. 486, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969), the United States Supreme Court held that the House of Representatives could not add to the qualifications specified in the Constitution to serve as a House member. Similarly, in Whitney, 330 P.2d at 1004 — 05, article VI, section 13 of the Arizona Constitution prescribed the qualifications for justices of the supreme court. The legislature added by statute that no incumbent of an elective office shall be eligible for nomination or election to any office other than the office held. The court held that the legislature cannot add other qualifications or restrictions to those enumerated in the constitution for justices. Id. at 1005-06. Recently, the Arkansas Supreme Court in U.S. Term Limits, Inc. v. Hill, 316 Ark. 251, 872 S.W.2d 349, cert. granted, — U.S.-, 114 S.Ct. 2703, 129 L.Ed.2d 832 (1994), held that an amendment to the Arkansas Constitution which imposed term limits on United States senators and representatives elected in Arkansas was unconstitutional in that it added qualifications to those stated in the United States Constitution.
The rule has also found application in cases construing constitutional provisions dealing with removal of public officers from office. In In re Investigation of a Circuit Judge, the court held that where the constitution creates an office, fixes its term, and provides the conditions under which the incumbent may be removed before expiration of his or her term, neither the legislature nor any other authority has power to remove or suspend such officer in any manner other than that provided by the constitution. 93 So.2d at 604. Likewise, in State v. Patterson, 181 Ind. 660, 105 N.E. 228 (1914), the Constitution of Indiana provided that any judge or prosecuting attorney who is convicted of corruption or other high crime may be removed from office by the supreme court. It was held in that case that the legislature lacked the power to prescribe by statute that a prosecuting attorney could also be removed for neglect of duty. In that case, the court wrote:
In construing constitutional provisions, a rule of general acceptance is “that which is expressed makes that which is silent to cease.” When the constitution declares how a right may be exercised, it impliedly prohibits its exercise in some other way.
The rule is expressed by Cooley as follows: “When the Constitution defines the circumstances under which a right may be exercised or a penalty imposed, the specification is an implied prohibition against legislative interference to add to the condition or to extend the penalty to other cases.” Cooley’s Const. Lim. 64.
Patterson, 105 N.E. at 229 (citations Omitted).
Because of the foregoing well-reasoned authorities, I am led to conclude that article VIII, section 4 provides the exclusive means by which the authority to perform judicial duties may be delegated to a person other than an active article VIII justice or judge, to wit, “the Supreme Court by rule may authorize retired justices and judges and judges pro tempore to perform any judicial duties.” Utah Const, art. VIII, § 4. I agree with the majority that the legislature is not free to authorize by statute other persons, such as commissioners, to enter final judg*857ments and impose sentence in criminal misdemeanor cases or perform other core judicial functions.
In 1984 when article VIII was amended by the electorate to include the above-quoted language, commissioners did not try misdemeanor cases. Only seven years earlier in 1977, city judges had been automatically made circuit judges and a statewide circuit court system had come into place. The trial and sentencing of persons charged with misdemeanors was a major part of circuit court work. Because all city judges holding office as of July 1,1977, automatically became state circuit court judges, some parts of our state had more circuit judges than the case load at that time required. With this backdrop of conditions which existed in 1984, it is readily understandable that the above-quoted provision in section 4, which was new language, was thought to be broad enough to accommodate any future increased need for judicial duties to be performed by anyone other than an active article VIII judge or justice. Thus, retired justices and judges and judges pro tempore were the only persons authorized in section 4 to perform judicial duties and only then, when authorized by rule of the supreme court (not by the legislature).
It is of no consequence that article VIII, section 1 vests judicial power in courts, not in judges, as argued by Chief Justice Zimmerman and Justice Durham in their dissenting ■ opinion. Although judicial power may be vested in courts, section 4 allows that power to be exercised, i.e., allows “judicial duties” to be performed, only by article VIII judges and by retired justices and judges and by judges pro tempore when authorized by the supreme court.
Since section 4 carefully delineates and limits the persons who may perform judicial duties, no one can circumvent that limitation by voluntarily agreeing that someone else can “perform judicial duties” in his or her case. While a criminal defendant can waive a personal right afforded him, such as the right to a speedy trial, the right against self-incrimination, and the right to a jury trial, it is not within his power to invest by a “waiver” the right to perform core judicial duties in persons to whom that right has not been granted by section 4.
Finally, because the wording of section 4 is unique to our constitution, the federal cases upholding the magistrate system in the federal court system relied upon in the dissenting opinion are not on point.
Thus, I conclude that in addition to the reasons given in the majority opinion, the statute at issue in the instant case, Utah Code Ann. § 78-3-31, violates article VIII, section 4 of the constitution to the extent that it authorizes court commissioners to perform core “judicial duties.” Clearly, the trial and sentencing of the defendant in the instant case is a core “judicial duty.” The statute further violates section 4 because it provides for the appointment of court commissioners by the judicial council in derogation of the right of the supreme court by rule to authorize certain persons to perform core judicial duties who are not active article VIII judges or justices.
I therefore join in the reversal of defendant’s conviction.
STEWART, Associate C.J., and RUSSON, J., concur in the concurring opinion of HOWE, J.. Prior to the amendment, judges pro tempore were authorized to try causes only in the district court and upon agreement of the parties or their counsel. There was no provision respecting retired judges or justices. Utah Const, art. VIII, § 5 (1945).
. The words "[e]xcept as otherwise provided by this constitution" in section 4 refer to an exception made in section 2 that when a justice of the supreme court is disqualified or otherwise unable to participate in a cause before the court, an active judge from an appellate court or the district court shall be called to sit on the supreme court. A retired justice or judge or a judge pro tempore may not be used for that purpose.