Dissenting Opinion by
Mr. Justice Cohen:By tbe majority’s bolding, it is now established that by Article XII, §2 of tbe Constitution “Tbe General Assembly may by law declare what offices are incompatible” tbe courts of tbis Commonwealth are deprived of their common-law jurisdiction to determine questions of incompatibility. I cannot conceive that as tbe import of tbe constitutional provision. Surely, it was not tbe intention of tbe Constitutional Convention to deprive tbe courts of their common-law jurisdiction.
Tbe problem of plural office bolding is not new. In England as early as in tbe reign of Richard I (1189-1199), tbe sheriff was prohibited from bolding tbe office of justice in bis own county. Undoubtedly, incompatibility of certain offices began as a separation of power concept and then later became engrained in our common law as a matter of public policy. See Conklin, Plural Office Holding, 28 Oregon L.R. 332 (1949) 100 A.L.R. 1162 (1936), 13 L.R.A. 670 (1891), 1917A L.R.A. 216; and 5 L.R.A. 853 (1889). Here in Pennsylvania, in Commonwealth v. Sheriff and Keeper of the Jail of Northumberland County, 4 S. & R. 275 (1818), tbe Supreme Court observed “At tbe common *249law, offices subordinate and interfering with each other have been considered incompatible. . . .”
The common law doctrine of incompatibility is best set forth in 3 McQuillin, Municipal Corporations, §12.67 (Supp. 1961) as follows: “The common law prohibits dual holding of incompatible offices. Public policy demands that an office holder discharge his duties with undivided loyalty. The doctrine of incompatibility is intended to assure performance of that quality. Its applicability does not turn upon the integrity of the person concerned or his individual capacity to achieve impartiality, for inquiries of that kind would be too subtle to be rewarding. The doctrine applies inexorably if the offices come within it, no matter how worthy the officer’s purpose or extraordinary his talent.”
Our problem, however, is not to determine whether under the common-law the courts had the power to determine offices incompatible. Rather, we must decide whether that common law power was abrogated by Article XII, §2, of the Pennsylvania Constitution of 1874 and placed solely in the hands of the general assembly.
In support of the conclusion that the courts have no jurisdiction over questions of incompatibility, the majority relies on Commonwealth ex rel. Schermer v. Franck, 311 Pa. 341, 166 Atl. 878 (1933), wherein we stated: “It is contended that the offices of Justice of the Peace and Mayor of a city are incompatible. Article XII, section 2 of the Constitution provides that the General Assembly may by law declare what offices are incompatible. We have been pointed to no statute which declares the office of Justice of the Peace and Mayor incompatible. Inasmuch as the Constitution has provided a method of declaring what offices are incompatible, thereby announcing the public policy of this State in regard thereto, the courts are not permitted to hold offices incompatible merely because the *250Legislature has failed to act, even though other states may have held such offices incompatible where the duties of one conflict with those of the other. The Legislature of this Commonwealth has determined in several instances certain offices to be incompatible, and it would be a transgression of the power of this court to hold the offices of Mayor and Justice of the Peace incompatible when the Legislature has not seen fit to act in the matter.”
Although this case has been cited frequently by several lower courts for the proposition that courts may not determine the incompatibility of offices, see, e.g., Commonwealth ex rel. Storb v. Ressler, 13 Pa. D. & C. 2d 175 (1957); Gregory v. Johnson, 88 Pa. D. & C. 250 (1954); Commonwealth ex rel. Orban v. Berkey, 75 Pa. D. & C. 353 (1950); and Kurts v. Steinhart, 60 Pa. D. & C. 345 (1947), we do not regard it as binding precedent. The actual holding of the case was that a private citizen cannot invoke the issuance of a writ of quo warranto unless he has a special interest in the controversy greater than that of a mere member of the public. Since the relator did not have such an interest, the court quashed the appeal. The statement of Justice Kephart regarding the incompatibility of offices was not decisional and was merely an additional observation in the form of dicta. The problem of incompatibility was not analyzed in the opinion, nor did the court discuss the history or the policy considerations underlying the doctrine. It is indicative that this court has not cited the Sehermer decision in any subsequent case involving the question of incompatibility.
Eather, we are impressed with the fact that this court has on several occasions exercised jurisdiction over cases raising the question of incompatibility of public office. In Commonwealth ex rel. v. Snyder, 294 Pa. 555, 144 Atl. 748 (1929) we stated: “We have *251said — and probably necessarily so because of article XII, section 2 of the state Constitution — that if a statute declares incompatibility, the penalty fixed by it, if any, will always be enforced: [citing cases]. If, however, as here, the incompatibility is not determined by a statute, but arises solely by reason of the fact that the duties of the two offices are such that it would be against public policy to permit one person to hold both of them, then the incumbent may elect which he will retain. . . .” The entire tenure of the opinion of the court makes it clear that a court can assume jurisdiction in an action of quo warranto where the alleged incompatibility of offices was based upon grounds of public policy rather than statutory declaration. Similarly, in Commonwealth ex rel. Adams v. Holleran, 350 Pa. 461, 39 A. 2d 612 (1944), we determined the incompatibility of two offices notwithstanding the fact that the legislature did not act. In the course of its opinion, the court stated that “In good public service a man cannot serve two masters or perform the duties of different offices,” once again giving recognition to the Longstanding common-law rule regarding incompatibility. See also Commonwealth ex rel. McCreary v. Major, 343 Pa. 355, 22 A. 2d 686 (1941); Packrall v. Lane, 38 Wash. 193 (1958) ; In re Monroe County Auditors’ Report, 84 Pa. D. & C. 278 (1951); Reilly v. Ozzard, 33 N.J. 529, 166 A. 2d 360 (1960); and Kobylarz v. Mercer, 130 N.J.L. 44, 31 A. 2d 208 (1943).
It is unquestioned that common-law rules and maxims are subject to modification by statute. However, a statute modifying a common-law rule will be enforced only to the extent of the modification intended. Greene County v. Southern Surety Co., 292 Pa. 304, 141 Atl. 27 (1927). See Act of 1806, March 21, P. L. 558, 4 Sm. L. 326, §13, 46 P.S. §156. Similarly, there is no presumption that a statute was intended to change the common law. The change must *252appear to have been meant, or it will be held not to have been made. Central Lithograph Co. v. Eatmor Chocolate Company (No. 1), 316 Pa. 300, 175 Atl. 697 (1934). While these principles normally govern the construction of statutes, there is no reason why they cannot be applied in determining the effect of a constitutional provision on the prior common law.
It is significant that neither of the commentators on the Constitutional Convention of 1874 saw fit to comment regarding the effect of the provision in question upon the existing common-law doctrine of incompatibility and the right of the courts to determine questions of incompatibility. See Buckalew, An Examination of the Constitution of Pennsylvania (1883), White, Commentaries on the Constitution of Pennsylvania (1907). Similarly, the reported debates of the constitutional convention are devoid of any consideration of this issue. See Vol. VII, Debates of the Convention to Amend the Constitution of Pennsylvania (1873). Nor are there any cases reported questioning the jurisdiction of the courts under the Constitution of 1838, Art. VI, §8, which contained a provision similar in pertinent part to the current constitutional section.
We do not regard the word “may” in the second sentence of Art. XII, section 2, to be a sufficiently explicit indication on the part of the constitutional convention that the courts were to be stripped of their time-honored jurisdiction concerning matters of incompatibility and that the general assembly was to exercise sole and exclusive power in this regard. “May” is normally employed in a permissive sense, Commonwealth of Pennsylvania, Department of Welfare v. Carland, 393 Pa. 45, 142 A. 2d 14 (1958), and does not denote or connote either mandatory or exclusive power. Had the constitutional convention desired that the general assembly should have sole jurisdiction in this matter, it would have so provided in a much more articulate manner.
*253To hold to the contrary and prohibit the courts from considering questions of incompatibility would leave a void in the regulation of dual office holding in the large area of public activity concerning which the legislature has not seen fit to act, and would deprive the public of an important safeguard in guaranteeing the integrity of governmental offices and of those who occupy them.
I would affirm the order of the court below so that it might judicially determine whether the two offices held by the appellee were in fact incompatible and against public policy so that it would be improper to permit one person to hold both.
Mr. Justice O’Brien joins in this dissenting opinion.