Opinion by
Rice, P. J.,
Commissioners duly appointed in accordance with the provisions of the Act of May 22, 1895, P. L. 97, “ to designate, survey and mark that portion of the boundary line between Hunting-don and Mifflin counties lying between the Centre county line and the Juniata river,” filed their report in the court of quarter sessions of Huntingdon county. Exceptions were filed by the county commissioners of Mifflin, depositions were taken, and, after hearing, the court overruled the exceptions, approved the report, and ordered it to be filed. Afterwards, the county commissioners of Huntingdon presented to the quarter sessions of Mifflin a petition, accompanied by certified copies of the report and map, as well as of the exceptions and the decree, in which, after reciting the proceedings above referred to, they prayed the court “ to direct the said report and map to be filed, to approve the same and direct it to be recorded.” The record shows that a motion to the same effect was made on behalf of the county line commissioners. At the same time J. C. Swig-art, one of the county line commissioners, presented an ex[387]*387tended report, dissenting from the conclusions of the majority, and submitted with it the minutes, testimony, drafts, maps and records put in evidence before the commission.
It will be important to notice hereafter, that all .these proceedings in Mifflin county occurred on June 30, 1897. We have no means of knowing, with absolute certainty, all that took place on the hearing of the motion above referred to, but it would seem probable that Huntingdon county made the same claim there, as here, that the court had no discretionary power in the matter, and, therefore, that it was its duty to approve the report forthwith. Be that as it may, the two associate judges held differently, and made the following order, from which the president judge dissented: “And now, to wit: June 30,1897, the report of the commissioners appointed to run and mark the county line between the counties of Huntingdon and Mifflin .... having been presented to the court of quarter sessions of Mifflin county, on due consideration thereof, the said court hereby refuses to approve said report and declines to order the same to be recorded.” From this order the commissioners of Huntingdon county appealed to this court, and from the order of the quarter sessions of Huntingdon the Mifflin county commissioners appealed. Both appeals were argued at the same time, and may be considered together.
The Act of April 16, 1876, P. L. 42, entitled “An act to provide for running and marking county lines,” provided, inter alia, that copies of the report of the commissioners should be filed in the court of each county, and, “if approved by the court,” should be recorded. The Act of May 22, 1895, P. L. 97, entitled “An act to amend the act of 1876 (giving its title) increasing the number of commissioners to five, and pro-' viding for advertising,” provides that “ copies of said report shall be filed in each court, and shall be approved by the court and ordered to be recorded.” It will be observed, that under the amended, as well as under the original, act, the report is not entitled to be recorded until it shall have been° approved by the court. This implies the power and duty to determine whether or not the report is entitled to approval. If it should be made to appear to the court, by the report, or in any other legitimate way, that the findings of the commissioners as to the true location of the line were clearly wrong, or that, instead [388]*388of locating the line as established by law, they had undertaken to establish a new boundary line, or that the report was procured by corrupt influences brought to bear by interested parties upon the commissioners, it surely was not intended, that the court must stultify itself by adding- its approval to the illegal proceeding. The selection of the word “ approve,” to define the jurisdiction of the court over the proceedings, the general presumption that the legislature will not confer upon the courts a jurisdiction shorn of the incidental judicial powers absolutely essential to its exercise, and the absence from the title of the act of anything to give notice of a provision making that mandatory which was before discretionary are considerations which cannot be overlooked in the construction of this section. An interpretation which leads to the conclusion that the legislature has deliberately disregarded a constitutional limitation upon its powers or a constitutional mandate as to the form of legislative enactment is always to be avoided if possible, although at first view such interpretation might seem most obvious and natural; for it is always to be presumed that the legislature designed the statute to take effect, and not to be a nullity. To carry out the intent of the legislature disjunctive words have been given a conjunctive meaning and permissive words have been construed as mandatory. So here, looking at all the evidences of the legislative intent, we are warranted in concluding that, in conferring upon the courts the jurisdiction to approve the report, the legislature did not intend to deprive them of the judicial power to hear and determine before exercising it. As the learned judge who presided at the hearing in Huntingdon county well says: “ Approval by the court is a judicial act implying, necessarily, concurrence to some degree at least, and concurrence, when applied to judicial action, is not a matter that is enforceable by legislative enactment. There could be no object whatever in mere perfunctory approval without judgment or discretion. Such an act could lend nothing to the proceedings, and it is impossible to conceive why it should be required as preliminary to the recording of the report. If the purpose were to eliminate the discretion of the court the word approval would not have remained. The very use of it without regard to its qualification is wholly inconsistent with the idea that there was any intention to constrain judicial action. [389]*389To suppose the contrary is to impute to the legislature an ignorance or disregard of the plain distinction between legislative and judicial power; either this or to impose upon the courts as a judicial duty that which is both useless and meaningless. Such considerations without more are sufficient to warrant the conclusion that our power of revision is unaffected by the change of phraseology, and all that could have been done under the original act we may do now.” We concur in this conclusion.
Upon this construction of the act of 1895 no well founded objection can be raised as to its constitutionality.
The remaining assignments of error filed by Mifflin county relate to the merits of the controversy between the two counties, as disclosed by the evidence taken in support of the exceptions, and to the alleged misconduct of one of the commissioners. They require a brief consideration of the power and duty of the commissioners, the jurisdiction of the quarter sessions to review their findings, and our jurisdiction on appeal.
The duty of commissioners appointed under the act of 1895 is to designate, survey and mark the boundary line as estab lished by law. It is too clear for argument that they have no authority to establish a new line. Judge Stewakt correctly defined their duties when he said: “ Tins line (the county line) was an existing fact but obscured. It was the duty of the commission to discover and define it. The return of any other than the original and true line would not, of course, be compliance with the law, and could not receive the approval of the court.
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Opinion by
Rice, P. J.,
Commissioners duly appointed in accordance with the provisions of the Act of May 22, 1895, P. L. 97, “ to designate, survey and mark that portion of the boundary line between Hunting-don and Mifflin counties lying between the Centre county line and the Juniata river,” filed their report in the court of quarter sessions of Huntingdon county. Exceptions were filed by the county commissioners of Mifflin, depositions were taken, and, after hearing, the court overruled the exceptions, approved the report, and ordered it to be filed. Afterwards, the county commissioners of Huntingdon presented to the quarter sessions of Mifflin a petition, accompanied by certified copies of the report and map, as well as of the exceptions and the decree, in which, after reciting the proceedings above referred to, they prayed the court “ to direct the said report and map to be filed, to approve the same and direct it to be recorded.” The record shows that a motion to the same effect was made on behalf of the county line commissioners. At the same time J. C. Swig-art, one of the county line commissioners, presented an ex[387]*387tended report, dissenting from the conclusions of the majority, and submitted with it the minutes, testimony, drafts, maps and records put in evidence before the commission.
It will be important to notice hereafter, that all .these proceedings in Mifflin county occurred on June 30, 1897. We have no means of knowing, with absolute certainty, all that took place on the hearing of the motion above referred to, but it would seem probable that Huntingdon county made the same claim there, as here, that the court had no discretionary power in the matter, and, therefore, that it was its duty to approve the report forthwith. Be that as it may, the two associate judges held differently, and made the following order, from which the president judge dissented: “And now, to wit: June 30,1897, the report of the commissioners appointed to run and mark the county line between the counties of Huntingdon and Mifflin .... having been presented to the court of quarter sessions of Mifflin county, on due consideration thereof, the said court hereby refuses to approve said report and declines to order the same to be recorded.” From this order the commissioners of Huntingdon county appealed to this court, and from the order of the quarter sessions of Huntingdon the Mifflin county commissioners appealed. Both appeals were argued at the same time, and may be considered together.
The Act of April 16, 1876, P. L. 42, entitled “An act to provide for running and marking county lines,” provided, inter alia, that copies of the report of the commissioners should be filed in the court of each county, and, “if approved by the court,” should be recorded. The Act of May 22, 1895, P. L. 97, entitled “An act to amend the act of 1876 (giving its title) increasing the number of commissioners to five, and pro-' viding for advertising,” provides that “ copies of said report shall be filed in each court, and shall be approved by the court and ordered to be recorded.” It will be observed, that under the amended, as well as under the original, act, the report is not entitled to be recorded until it shall have been° approved by the court. This implies the power and duty to determine whether or not the report is entitled to approval. If it should be made to appear to the court, by the report, or in any other legitimate way, that the findings of the commissioners as to the true location of the line were clearly wrong, or that, instead [388]*388of locating the line as established by law, they had undertaken to establish a new boundary line, or that the report was procured by corrupt influences brought to bear by interested parties upon the commissioners, it surely was not intended, that the court must stultify itself by adding- its approval to the illegal proceeding. The selection of the word “ approve,” to define the jurisdiction of the court over the proceedings, the general presumption that the legislature will not confer upon the courts a jurisdiction shorn of the incidental judicial powers absolutely essential to its exercise, and the absence from the title of the act of anything to give notice of a provision making that mandatory which was before discretionary are considerations which cannot be overlooked in the construction of this section. An interpretation which leads to the conclusion that the legislature has deliberately disregarded a constitutional limitation upon its powers or a constitutional mandate as to the form of legislative enactment is always to be avoided if possible, although at first view such interpretation might seem most obvious and natural; for it is always to be presumed that the legislature designed the statute to take effect, and not to be a nullity. To carry out the intent of the legislature disjunctive words have been given a conjunctive meaning and permissive words have been construed as mandatory. So here, looking at all the evidences of the legislative intent, we are warranted in concluding that, in conferring upon the courts the jurisdiction to approve the report, the legislature did not intend to deprive them of the judicial power to hear and determine before exercising it. As the learned judge who presided at the hearing in Huntingdon county well says: “ Approval by the court is a judicial act implying, necessarily, concurrence to some degree at least, and concurrence, when applied to judicial action, is not a matter that is enforceable by legislative enactment. There could be no object whatever in mere perfunctory approval without judgment or discretion. Such an act could lend nothing to the proceedings, and it is impossible to conceive why it should be required as preliminary to the recording of the report. If the purpose were to eliminate the discretion of the court the word approval would not have remained. The very use of it without regard to its qualification is wholly inconsistent with the idea that there was any intention to constrain judicial action. [389]*389To suppose the contrary is to impute to the legislature an ignorance or disregard of the plain distinction between legislative and judicial power; either this or to impose upon the courts as a judicial duty that which is both useless and meaningless. Such considerations without more are sufficient to warrant the conclusion that our power of revision is unaffected by the change of phraseology, and all that could have been done under the original act we may do now.” We concur in this conclusion.
Upon this construction of the act of 1895 no well founded objection can be raised as to its constitutionality.
The remaining assignments of error filed by Mifflin county relate to the merits of the controversy between the two counties, as disclosed by the evidence taken in support of the exceptions, and to the alleged misconduct of one of the commissioners. They require a brief consideration of the power and duty of the commissioners, the jurisdiction of the quarter sessions to review their findings, and our jurisdiction on appeal.
The duty of commissioners appointed under the act of 1895 is to designate, survey and mark the boundary line as estab lished by law. It is too clear for argument that they have no authority to establish a new line. Judge Stewakt correctly defined their duties when he said: “ Tins line (the county line) was an existing fact but obscured. It was the duty of the commission to discover and define it. The return of any other than the original and true line would not, of course, be compliance with the law, and could not receive the approval of the court. Any such arbitrary and unwarrantable action of the commission would defeat the report necessarily. A stronger reason for judicial interference could not be suggested.” Nor, we may add, is their report, that the line returned by them is the true line, conclusive of the question. As we have already shown, the report must come before the court for approval, and the court is not bound to approve it in the face of allegation and clear proof that the findings of fact are erroneous. It is immaterial, so far as the discretionary power of the quarter sessions is concerned, whether it appear on the face of the report or is shown by extraneous evidence that the commissioners exceeded their powers. In either case it is the duty of the court to withhold judicial sanction. But where the action [390]*390of the commissioners, as shown by the report, was apparently regular and in conformity to law, and the allegation that the line as run and returned by them is not the actual boundary line, depends upon extraneous evidence, the determination of the disputed questions of fact by the quarter sessions is not the proper subject of an assignment of error. The same is true of an allegation of misbehavior on the part of the commissioners or of the officials of one of the counties. The reason is, that where an appeal from a decree in a matter committed to the discretion of the court of quarter sessions is a mere substitute for a certiorari — as it is in the present case — the jurisdiction of the, appellate court is restricted to a review of the record proper, of which the evidence and the opinion of the court form no part. Nothing is better settled than this: In re Kensington Turnpike, 97 Pa. 260, and cases there cited; Darby v. Sharon Hill, 112 Pa. 66; Holland v. White, 120 Pa. 228; Rand v. King, 134 Pa. 641, and cases there cited; Grieb v. Kuttner, 135 Pa. 281; Camp Hill Borough, 142 Pa. 511; Hamilton Street, 148 Pa. 640; Com. v. Ramsay, 166 Pa. 642; Overseers v. Overseers, 2 Pa. Superior Ct. 397; Jefferson Township Road, 3 Pa. Superior Ct. 467; Com. v. Tragle, 4 Pa. Superior Ct. 159; In re Annexation of Morrellville Borough, 7 Pa. Superior Ct. 532. The citation of cases, to the same effect, might be extended indefinitely, but it is unnecessary. The whole subject of the jurisdiction of the appellate court upon ce'rtiorari was exhaustively considered in Chase v. Miller, 41 Pa. 403, Penna. R. R. Co. v. Lutheran Congregation, 53 Pa. 445, and Election Cases, 65 Pa. 20, and little has been added since except the accumulation of precedents following and sustaining the principles there enunciated, and the settlement of the practice under the act of May 9, 1889, P. L. 158.
It is true the evidence has been printed, and the facts were very earnestly and ably argued by counsel. The dispute between these two counties is one of long standing and ought to he set at rest. Nevertheless, a reversal of the decree of either court, upon the ground that the evidence ought to have led the court to a different conclusion, would be a clear usurpation of authority on our part. We therefore dismiss these assignments, without further expression of opinion upon the questions intended to be raised thereby.
[391]*391We come, then, to the single assignment of error filed by the commissioners of Huntingdon, to the refusal of the quarter sessions of Mifflin to approve the report, and direct it to be recorded. This order is attacked upon three grounds: first, because the act of 1895 is mandatory, and the court had no discretionary power to refuse approval of the report; second, because the associate judges had no authority to overrule the president judge; third, because the approval of the report by the Huntingdon quarter sessions after a full hearing was an adjudication of all the questions of fact and of law raised by the exceptions, which the court of Mifflin county was bound to accept as final and conclusive.
We have already considered and overruled the first objection, and need not discuss it further.
The second objection is based on the erroneous proposition that the only duty of the court is to examine the report and determine therefrom whether the proceedings of the commissioners have been regular and in conformity to law. It is argued that this is a purely legal question requiring for its determination legal training and experience, which, it is asserted, associate judges not learned in the law do not possess ; therefore they have no authority to act in the matter.. We cannot assent to the premises or concur in this conclusion. The issue raised by the exceptions — which, we remark in passing, were as effectually before the Mifflin court as if they had been originally filed there — involved questions of fact as well as of law, which were to be determined, not by the president judge alone, but by the court. “ A court is a tribunal established for the public administration of justice, and composed of one or more judges, who sit for the purpose at fixed times and places attended by proper officers: ” Butts v. Armor, 164 Pa. 73. The court to which the petition and motion were addressed and which took cognizance of them was composed of three judg-es, the president and two associates, and there is nothing- in the statute regulating the proceeding to indicate that the latter were to have no right to participate in the decision. The cases of Glamorgan Iron Co. v. Snyder, 84 Pa. 397, and Korman’s Application, 162 Pa. 151, were decided upon a construction of the acts relating to special courts and the powers of judges of other districts called in to hold them. [392]*392Nothing was actually decided in either of those cases to warrant us in holding, that the associate judges have no authority to take part in the determination of a matter like that under consideration. Being members of the court, they had a right, not only to hear and advise, but to decide, and the fact that the president judge dissented from their decision did not affect the validity of their action. The order made by the majority must be considered, as it pui'ports to be, as the action of the court. See Reiber v. Boos, 110 Pa. 594; Van Vliet v. Conrad, 95 Pa. 494; Branch’s License, 164 Pa. 427; Butts v. Armor, supra; Com. v. Kryder, 1 Penny. 143; Sperring’s License, 7 Pa. Superior Ct. 131.
The doctrine of res adjudicata, and the rule that where two tribunals have concurrent and complete jurisdiction, the jurisdiction of that one which first has possession of the subject-matter is exclusive, have no application to a proceeding under the act of 1895. The legislature deemed the matter of such importance, and the interests to be affected by a possible relocation of a line which had been tacitly acquiesced in for years, so great and varied, that it ought not to be left to the exclusive determination of the court of either of the counties to be-affected. Hence they declared that copies of the report must be filed in each court, and the report must receive the approval of each court, before it can have the effect of fixing the location of the line. Neither court has jurisdiction to end the controversy; there can be no final judgment until both courts have acted. See Youghiogheny Bridge, 168 Pa. 454. As it happens in the present instance, the report was not filed in Mifflin county until after it had been acted on by the quarter sessions of Huntingdon. But this was not because of anything in the law requiring it. It was manifestly not the intention of the legislature to put it in the power of the commissioners to prevent the court of either county from exercising its discretion by their simple election to file the report in the court of the other county. A copy might have been filed in each court at the same time, and in that case neither would have been compellable to wait on the other before taking action nor to suspend its consideration of the matter when the other entered a decree. To hold otherwise would be to make the determination of the question depend [393]*393upon a race between the two courts — a conclusion so unreasonable as not to require discussion. We therefore hold, that the court of Mifflin county was not bound to approve the report because the court of Huntingdon county had done so.
It is not within our province to discuss the wisdom of the provision requiring the approval of two courts of equal jurisdiction acting independently; it is sufficient for us to know that such is the clear intent of the law.
The act of deciding is judicial and not arbitrary or wilful. The discretion vested in the court is, therefore, a sound judicial discretion; and to be a rightful judgment it must be exercised upon the facts and circumstances before the court after they have been heard and duly considered: Schlaudecker v. Marshall, 72 Pa. 200, 206. Therefore, in holding that the approval of the report is a matter resting in the discretion of the court of quarter sessions we are not to be understood as implying that the court may arbitrarily refuse to approve where the procedure and findings of the commissioners, as shown by their report, were in every respect regular and in conformity to law and there is neither allegation nor proof to the contrary. The president judge of Mifflin assumed that the case was in this situation, and that, as there appeared to be no legal reason for refusing, it was the duty of the court to approve the report. But conceding that this was the situation of the case at the time the motion was made, it does not follow, that the petitioners were entitled to have their motion granted and the report approved forthwith. It is true no exceptions had been filed in Mifflin county, but exceptions had been filed in Huntingdon comity, and a certified copy of the same was attached to the petition. They had not been withdrawn, and, as we have attempted to show, the order made by the court of Huntingdon county was not a conclusive adjudication of the questions raised thereby. Considering the nature of the proceeding, it might be said with much show of reason, that the exceptions were to be regarded as pending in the court of Mifflin county. But even if it be assumed that that court was not bound, and would not have been authorized, to take notice of them, it would have been clearly irregular to approve the report without giving Mifflin county an opportunity to renew its exceptions and to submit to the court the evidence taken in support of them. No [394]*394such opportunity had been afforded — at least as far as the record shows — when the motion was made. It is clear, therefore, that the petitioners were not entitled to have the report approved at that time. The case was not in condition for. final adjudication, and the order made is not necessarily to be so construed. Even if it were, reversal would result simply in sending the case back with direction to proceed to a hearing according to law. While, perhaps, the better course would have been to appoint a time when Mifflin county could present its exceptions and the evidence taken in support of them, the same result will be reached if the order be treated (as it fairly may be) as a simple refusal to approve the report and to order it to be recorded at that time. Thus viewed there was no error in the action of the court. The order was interlocutory in its nature, and no appeal will lie until final decree has been made after the parties to the proceeding have had a full opportunity to be heard.
The assignment of error filed by Huntingdon county, No. 19, March term, 1898, is overruled, and the appeal from the order of June 30, 1897,is dismissed; without prejudice, however, to the right of the commissioners of Huntingdon county to move the court of quarter sessions of Mifflin county to appoint a time for hearing their petition, at which the commissioners of Mifflin county may present their exceptions to the report of the county line commissioners, and the evidence taken in support of, and against the same, may be submitted.
Opinion by Rice, P. J., October 10, 1898 :
The assignments of error filed by Mifflin county, .No." 20, March term, 1898, are overruled, and the appeal is dismissed.
For order and reasons therefor, see No. 19, March term, 1898.