The opinion of the court was delivered, May 5th 1870, by
Agnew, J.
This proceeding is a mandamus at the relation of the Attorney-General of the Commonwealth against Chas. D.' Hippie, the District Attorney of Schuylkill county, to compel him to sign bills of indictment, and to conduct all criminal and other prosecutions in the name of the Commonwealth in the Criminal Court of Schuylkill county. The answer of the defendant brings into question the constitutionality of the court and its jurisdiction, and the duty of the District Attorney to prosecute the pleas of the Commonwealth therein. The Attorney-General has demurred to this return.
The constitutionality of the act to establish criminal courts for Dauphin, Lebanon and Schuylkill counties, approved the 18th of April 1867, Pamph. L. 91, was established by our decision in the case of the Commonwealth v. Green, 8 P. F. Smith 226. It is argued, that that decision settled no more than the constitutionality of the commission issued to Judge Green. This is incorrect. The authority to commission him depended on the constitutionality, of the law creating the court. There cannot be a constitutional judge in an unconstitutional court, and it was said in the outset of the opinion of the court, delivered by our Brother Sharswood: “If the legislature had power to erect' such a district; to provide for the election of the judge therein, in the manner prescribed in the act, and to invest him with any of the powers and rights conferred upon him, we cannot .sustain the demurrer, and give judgment of ouster against the defendant.” He then states: “ The main point of contention is, whether the legislature can transfer any part of the criminal jurisdiction now vested in the courts named in the Constitution to any other court;” and proceeds to show that this is constitutional. The question of the constitutionality of the court was fully decided, and the District Attorney ought not to have réfused to perform his duties under the law on that ground. We shall therefore not renew the discussion, notwith[13]*13standing the effort to induce us to recede from that decision, but shall add, in confirmation, a few observations upon the effect of the amendments to the Constitution of 1790, made in 1838 and 1850, not adverted to in the former opinion.
It was unquestionably the intention of the Convention, in framing the Constitution of 1790, to vest by the fifth article the whole judicial power of the state in tribunals created and to be created. The first section, therefore, declares, that “ the judicial power of the Commonwealth shall be invested in a Supreme Court, in Courts of Oyer and Terminer and General Jail Delivery, in a Court of Common Pleas, Orphans’ Court, Register’s Court, and a Court of Quarter Sessions of the Peace, and such other courts as the legislature may from time to time establish.” Between 1790 and the adoption of the amendments of 1838, the legislature had changed and reorganized the Supreme Court several times, by abolishing the Nisi Prius Courts existing at the adoption of the Constitution all over the state, and substituting the Circuit Court system, which it repealed, re-enacted, and again repealed, and by adding to the number of judges. It had also reorganized some of the Courts of Common Pleas, and added law judges to them. It had created new courts, called District-Courts, for Philadelphia, Lancaster and York, and created several Mayor’s C’ourts, with jurisdiction for the trial of misdemeanors before triable in the Quarter Sessions. Thus, before 1838, the first section of the fifth article of the Constitution of 1790 had received a construction which enabled the legislature to reorganize the courts named in the Constitution and create new courts and new judges, and to take away portions of the jurisdiction of the constitutional courts and confer them on new tribunals. Under these circumstances the Convention of 1837-8 struck out the second section of the fifth article, which read as follows: “ The judges of the Supreme Court and of the several Courts of Common Pleas, shall hold their offices during good behavior. But for any reasonable cause, which .shall not be sufficient ground of impeachment, the governor may remove any of them on the address of two-thirds of each branch of the legislature. The judges of the Supreme Court and the presidents of the several Courts of Common Pleas, shall, at stated times, receive for their services an adequate compensation, to be fixed by law, which shall not be diminished duritig their continuance in office; but they shall receive no fees or perquisites of office, nor hold any office of profit under this Commonwealth.”
In place of this section the Convention adopted a new provision, authorizing the judges of the Supreme Court, of the several Courts of Common Pleas, and of such other courts of record as are or shall he established by law, to be nominated by the governor, and by and with the consent of the Senate appointed and commissioned by him. It further provided, that the president judges of the [14]*14Courts 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, should hold their offices for the term of ten years, if they shall so long behave themselves well. Thus there was a distinct constitutional recognition of the power which had been exercised by the legislature in reorganizing the courts named in the Constitution, and adding thereto law judges, and in creating new courts of record with judges learned in the law. As a measure of precaution, to preserve the former interpretation of the unaltered portions of the Constitution, the schedule provided, in section third, that: “The clauses, sections, and articles of the Constitution, which remained unaltered, shall continue to be construed and have effect as if the said Constitution had not been amended.” The effect of this was to preserve the interpretation the first section of the fifth article had received, which enabled the legislature to reorganize the old and erect new courts. After 1838 and before the adoption of the amendment of 1850, a number of new courts had been created, several of the Courts of Common Pleas reorganized, new judges learned in the law provided for, and this court had made the decisions in Commonwealth v. Zephon, 8 W. & S. 382; Commonwealth v. Martin, 2 Barr 244; and In re Pennsylvania Hall, 5 Barr 204. These cases had decided that the Court of Criminal Sessions was a constitutional court; that the Act of 3d July 1843, transferring the jurisdiction of the Criminal Court to the Court of Oyer and Terminer and Court of Quarter Sessions, was a valid law ; that a Court of Oyer and Terminer could be held by a judge learned in the law, not the president; and that a single judge can hold a Court of Quarter Sessions when directed by the legislature. These cases were all decided from 1844 to 1847, and in full view of them the legislature, in 1849, proposed the amendment of 1850, in lieu of the second section of the fifth article, using the same language in reference to the election of judges, to wit: “ 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.”
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The opinion of the court was delivered, May 5th 1870, by
Agnew, J.
This proceeding is a mandamus at the relation of the Attorney-General of the Commonwealth against Chas. D.' Hippie, the District Attorney of Schuylkill county, to compel him to sign bills of indictment, and to conduct all criminal and other prosecutions in the name of the Commonwealth in the Criminal Court of Schuylkill county. The answer of the defendant brings into question the constitutionality of the court and its jurisdiction, and the duty of the District Attorney to prosecute the pleas of the Commonwealth therein. The Attorney-General has demurred to this return.
The constitutionality of the act to establish criminal courts for Dauphin, Lebanon and Schuylkill counties, approved the 18th of April 1867, Pamph. L. 91, was established by our decision in the case of the Commonwealth v. Green, 8 P. F. Smith 226. It is argued, that that decision settled no more than the constitutionality of the commission issued to Judge Green. This is incorrect. The authority to commission him depended on the constitutionality, of the law creating the court. There cannot be a constitutional judge in an unconstitutional court, and it was said in the outset of the opinion of the court, delivered by our Brother Sharswood: “If the legislature had power to erect' such a district; to provide for the election of the judge therein, in the manner prescribed in the act, and to invest him with any of the powers and rights conferred upon him, we cannot .sustain the demurrer, and give judgment of ouster against the defendant.” He then states: “ The main point of contention is, whether the legislature can transfer any part of the criminal jurisdiction now vested in the courts named in the Constitution to any other court;” and proceeds to show that this is constitutional. The question of the constitutionality of the court was fully decided, and the District Attorney ought not to have réfused to perform his duties under the law on that ground. We shall therefore not renew the discussion, notwith[13]*13standing the effort to induce us to recede from that decision, but shall add, in confirmation, a few observations upon the effect of the amendments to the Constitution of 1790, made in 1838 and 1850, not adverted to in the former opinion.
It was unquestionably the intention of the Convention, in framing the Constitution of 1790, to vest by the fifth article the whole judicial power of the state in tribunals created and to be created. The first section, therefore, declares, that “ the judicial power of the Commonwealth shall be invested in a Supreme Court, in Courts of Oyer and Terminer and General Jail Delivery, in a Court of Common Pleas, Orphans’ Court, Register’s Court, and a Court of Quarter Sessions of the Peace, and such other courts as the legislature may from time to time establish.” Between 1790 and the adoption of the amendments of 1838, the legislature had changed and reorganized the Supreme Court several times, by abolishing the Nisi Prius Courts existing at the adoption of the Constitution all over the state, and substituting the Circuit Court system, which it repealed, re-enacted, and again repealed, and by adding to the number of judges. It had also reorganized some of the Courts of Common Pleas, and added law judges to them. It had created new courts, called District-Courts, for Philadelphia, Lancaster and York, and created several Mayor’s C’ourts, with jurisdiction for the trial of misdemeanors before triable in the Quarter Sessions. Thus, before 1838, the first section of the fifth article of the Constitution of 1790 had received a construction which enabled the legislature to reorganize the courts named in the Constitution and create new courts and new judges, and to take away portions of the jurisdiction of the constitutional courts and confer them on new tribunals. Under these circumstances the Convention of 1837-8 struck out the second section of the fifth article, which read as follows: “ The judges of the Supreme Court and of the several Courts of Common Pleas, shall hold their offices during good behavior. But for any reasonable cause, which .shall not be sufficient ground of impeachment, the governor may remove any of them on the address of two-thirds of each branch of the legislature. The judges of the Supreme Court and the presidents of the several Courts of Common Pleas, shall, at stated times, receive for their services an adequate compensation, to be fixed by law, which shall not be diminished duritig their continuance in office; but they shall receive no fees or perquisites of office, nor hold any office of profit under this Commonwealth.”
In place of this section the Convention adopted a new provision, authorizing the judges of the Supreme Court, of the several Courts of Common Pleas, and of such other courts of record as are or shall he established by law, to be nominated by the governor, and by and with the consent of the Senate appointed and commissioned by him. It further provided, that the president judges of the [14]*14Courts 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, should hold their offices for the term of ten years, if they shall so long behave themselves well. Thus there was a distinct constitutional recognition of the power which had been exercised by the legislature in reorganizing the courts named in the Constitution, and adding thereto law judges, and in creating new courts of record with judges learned in the law. As a measure of precaution, to preserve the former interpretation of the unaltered portions of the Constitution, the schedule provided, in section third, that: “The clauses, sections, and articles of the Constitution, which remained unaltered, shall continue to be construed and have effect as if the said Constitution had not been amended.” The effect of this was to preserve the interpretation the first section of the fifth article had received, which enabled the legislature to reorganize the old and erect new courts. After 1838 and before the adoption of the amendment of 1850, a number of new courts had been created, several of the Courts of Common Pleas reorganized, new judges learned in the law provided for, and this court had made the decisions in Commonwealth v. Zephon, 8 W. & S. 382; Commonwealth v. Martin, 2 Barr 244; and In re Pennsylvania Hall, 5 Barr 204. These cases had decided that the Court of Criminal Sessions was a constitutional court; that the Act of 3d July 1843, transferring the jurisdiction of the Criminal Court to the Court of Oyer and Terminer and Court of Quarter Sessions, was a valid law ; that a Court of Oyer and Terminer could be held by a judge learned in the law, not the president; and that a single judge can hold a Court of Quarter Sessions when directed by the legislature. These cases were all decided from 1844 to 1847, and in full view of them the legislature, in 1849, proposed the amendment of 1850, in lieu of the second section of the fifth article, using the same language in reference to the election of judges, to wit: “ 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.” This is again an unmistakable recognition in the Constitution of the power which had been exercised by the legislature in the establishment of the new courts in the interim between 1838 and 1850, exercising jurisdictions which had belonged to the old courts under the Constitution of 1790, and in the reorganization of the old courts, adding new law judges. There ought not to be any doubt, therefore, of the power of the legislature to establish a new Criminal Court, and to give it concurrent jurisdiction with existing courts for the trial of crimes and misdemeanors. The Constitution having neither defined nor limited the jurisdictions of the courts named in the Constitution, or of those to be afterwards established, the power to create new courts and new law judges carried with it the power to [15]*15invest them with such jurisdictions as appear to be necessary and proper, and to part and divide the judicial powers of the state so as to adapt them to its growth and change of circumstances.
The District Attorney in his return, also denies the jurisdiction of the Criminal Court, on the ground that some of the offences committed to it are triable exclusively in the Court of Oyer and Terminer. But this exclusiveness is a creature of law and not of the Constitution. The power to create a new court and vest it with jurisdiction to try all offences in the county, being settled, the jurisdiction of the Oyer and Terminer is no longer exclusive, but is merely concurrent.
The argument for the District Attorney that the act gives to the Criminal Court only that which it takes from the Court of Oyer and Terminer and Quarter Sessions, is a mistaken view of the law. The first part of the act is merely affirmative, vesting the Criminal Court with full power and authority to inquire of, hear, try and determine, agreeably to the laws and customs of this Commonwealth, all murders, rapes, robberies, arsons, felonies, misdemeanors, and other offences which have been or may be committed within the county for which the court is created, and which would be cognisable in any Court of Quarter Sessions of the Peace, and Court of Oyer and Terminer within this Commonwealth, if committed within their jurisdiction, &e. So far the act merely establishes a new Criminal Court, with the same jurisdictions as the Oyer and Terminer and Quarter Sessions, and does not supersede them. This vests only a concurrent jurisdiction. It is not until after vesting jurisdiction in the new court, the act proceeded to wrest all the powers of the Courts of Oyer and Terminer and Quarter Sessions from them, that it became invalid; and so we held in The Commonwealth v. Byan, at Harrisburg, in 1867. This left the valid part of the act standing, and disposes also of the alleged difficulty of the District-Attorney in determining what part of the criminal jurisdiction over offences is vested in the new court. All is vested by the express words of the law, and there is no line of demarcation to be followed. It is concurrent with the old courts, and when a difficulty arises in any particular case, it will be for the court to determine its own jurisdiction, and not the District Attorney.
He is incorrect in asserting that there is no duty on his part to prosecute the pleas of the Commonwealth in the Criminal Court. The first section of the Act of the 3d of May 1850, provides that: “ He shall sign all bills of indictment, and conduct in court all criminal and other prosecutions in the name of the Commonwealth, or when the state is a party, which arise in the county for which he is elected, and perform all the duties which now by law are to be performed by deputy attorney-generals.” He is bound to follow the the business of the Commonwealth into whatever [16]*16courts in the county that business is authorized by law to be tried. His return to the writ of alternative mandamus is therefore insufficient, and judgment must be given for the Commonwealth.
And now, May 5th 1870, the demurrer of the Commonwealth to the return of the defendant is sustained, and the court give judgment for the Commonwealth with costs, and order a peremptory mandamus to issue to the defendant.
Thompson, C. J., dissented.