¶1dissenting, March 6, 1929. — This is one of a group of indictments numbered from 380 to 399, May Sessions, 1928, inclusive. They are founded on presentments originating in special instructions by the court directing the grand jury to investigate the conduct of the 1928 primary election in certain districts. The disposition of one will apply to all. Inter alia, they are attacked for irregularity because the witnesses had not been sworn by an official competent to administer an oath.
¶2Regardless of other reasons assigned for the present motion, this is believed to be fatal, and, therefore, I cannot concur in the judgment of the court affirming the validity of the indictments.
¶3True, these are endorsed with the names of witnesses, but the fact is without bearing on the issue raised by this specific objection. For it is not claimed that any witness was sworn or heard after the bills had been prepared. While defendants have been at pains to make proof of that fact, it turns out to be free from dispute. The motions were argued by counsel in October, when it was freely conceded by the Commonwealth that no evidence had been taken save at the antecedent investigation, the witnesses being then sworn only by the foreman in the grand jury room. In other words, upon submitting the *603presentments and being directed to return formal Indictments, the grand jury did so without further inquiry as soon as the bills could be drawn.
¶4By his brief, filed Jan. 9th, counsel for the Commonwealth contends that this procedure is unobjectionable. “The swearing of witnesses by the foreman,” he says, “was in accord with the practice followed in this county since its creation and also with the practice as adopted and approved by the Superior Court of Pennsylvania.” Citing Com. v. Dietrich, 7 Pa. Superior Ct. 515, and Com. v. Klein, 40 Pa. Superior Ct. 352.
¶5Mere local practice in this county, if any, would hardly be effective to vary the established course of common law procedure. What is more, the assumption of fact is somewhat overstated. In 1912 this court had occasion to consider the question and it was ruled adversely to “the assumption. An indictment was quashed because a witness, whose name had not been marked on the bill, had been sworn by the foreman. On consideration of authorities there cited, it was held that, except as otherwise provided by statute, witnesses to be sent before the grand jury must first be sworn by the judge or some official in his presence: Com. v. Tomli, 21 Dist. R. 1016, 13 Lacka. Jurist, 31.
¶6In this State, it was first “otherwise provided” by Act of April 5, 1826, § 1, 9 Sm. Laws, 136. This conferred upon the foreman, or any other member of the grand jury, power to administer the oath to those witnesses whose names had been marked on the bill of indictment by the attorney-general. That has in the meantime been amended by substituting the district attorney for the attorney-general: Act of March 31, 1860, § 10, P. L. 427 (at page 433).
¶7No doubt, in this instance, had the witnesses been lawfully qualified, further inquiry could have been dispensed with when the bills had been made ready. At least, one can think of no satisfactory reason in such case why the grand jury should resort to the formality of duplicating the evidence already in hand. That is not the point. The trouble is that, if the statute means only what it says in plain English, the members of the grand jury could not administer a lawful oath. Such authority as they have in that regard attaches by reason of an official act of the district attorney which had not as yet been exercised, nor could then be exercised, as it is incidental only to the submission of a formal bill, and that stage had not then been reached.
¶8As in case of any other power of statutory origin regulating penal proceedings, it is not apparent how its operation can be legitimately varied and enlarged by mere latitude of construction. Yet that it is open to such construction is claimed by the Commonwealth to have been announced by the appellate court. The cases relied upon for that contention are believed to have been wholly misconceived by the learned counsel.
¶9The point was not involved in either the Dietrich or the Klein case. Each was disposed of by opinion of the late President Judge Rice, to whom the question was no stranger. The context shows that the reference was to the authority conferred by the Act of 1860, though without intending to suggest that the courts are at liberty to disregard its express limitation. This the learned judge had theretofore had occasion to consider when presiding in the courts of Luzerne County. It was then and there held that the grand jury exceeded its authority when they undertook to administer the oath to a witness whose name had not been marked on the bill, and, therefore, an indictment was quashed: Com. v. Wilson, 6 Kulp, 40, per Rice, P. J.
¶10It has been uniformly so held wherever the question has arisen. See Com. v. Schall et al., 5 York Leg. Record, 139 (1892); Com. v. Frescoln, 11 Lanc. Law Rev. 161 (1894); Com. ¶. Cochran, 22 Lanc. Law Rev. 188 (1904); Com. v. Price, 4 Kulp, 289 (1887).
¶11*604While it does not appear to have been put at issue in the appellate courts, yet Com. v. Jillard, 26 Pa. 169, has been repeatedly referred to in the lower courts as supporting their view.
¶12As above noted, the learned counsel for the Commonwealth contends that a “practice” to the contrary “has been adopted and approved by the Superior Court of Pennsylvania.”
¶13The supposition is rather pointedly at variance with what the court said in a recent case.
¶14The subject of discussion was the right to relief by motion to quash an indictment for matters not apparent on the face of the record. It was referred to as well settled in this State. In that connection, the court, by opinion of Judge Gawthrop, was at pains to mention instances where the motion would lie — inter alia, “where the only witnesses who appeared before them were persons whose names were not endorsed upon the bill, and, therefore, could not be sworn by the grand jury (Act of March 31, 1860, P. L. 427) :” Com. v. Morris et al., 91 Pa. Superior Ct. 671.
¶15The unbroken current of authority is to the effect that at common law the members of the grand jury were incompetent to qualify the witnesses sent before them; hence, he who asserts that they now have such authority in this jurisdiction must be able to point to the statute which says so. The Act of 1860, supra, has the field to itself. But, for present purposes, it falls short of the mark. The attempt to apply it here is hopeless. Being, in so many words, limited to the case of witnesses officially designated by endorsement on a bill of indictment, it is vain to suppose that it serves equally well in a proceeding where there is no bill to submit. It is for the legislature, and not for the courts, to amend the statute by abolishing its restriction.
¶16I would, therefore, allow the motions and quash these indictments.
¶17From William A. Wilcox, Scranton, Pa.