The plaintiff in error seeks to vacate the judgment rendered against him, upon the ground that the presiding judge had no authority to act in the matter. The case, it will be perceived, presents the very grave question, whether the justices of the court of common pleas can perform the duties and exercise the functions in criminal matters, in the county of Suffolk, that have heretofore been discharged by the judge of the municipal court of the city of Boston.

The St. of 1843, c. 7, § 1, provides, that “ all the duties, now required by law to be performed by the judge of the municipal court of the city of Boston, shall hereafter be performed, within and for the county of Suffolk, by the justices of the court of common pleas, or some one of them.” Sect. 5 further provides, that “ all indictments, now pending or before said municipal court, shall be heard and acted upon by one of the justices of the court of common pleas sitting as aforesaid as judge of said municipal court.”

The legislature have by this statute, in terms, authorized the jurisdiction assumed in the present case ; and the only inquiry is, whether this enactment is in violation of any of the provisions of the constitution of the Commonwealth.

That the legislature have full power to change the criminal jurisdiction, and transfer the same from one court to another, is not denied. Great and important changes in this respect have been made from time to time, and particularly by St. 1812, c. 133, which gave enlarged jurisdiction to the municipal court, and *514by St. 1832, c. 130, which vested in the court of common pleas original jurisdiction of all offences of which the supreme judicial court previously had jurisdiction, except crimes punishable with death.

But it is contended, that although it might be fully competent to the legislature to transfer to the justices of the court of common pleas the entire criminal jurisdiction throughout the Commonwealth, yet the duties must nevertheless be performed by such justices, under the name and style of justices of the court of common pleas. It is said that if jurisdiction is conferred upon them by force of St. 1843, c. 7, it is by making them judges of the municipal court, and thus conferring upon them a new office, in violation of the provisions of the eighth article of amendment of the constitution of the Commonwealth, which is in these words : “ Judges of the court of common pleas shall hold no other office under the government of this Commonwealth, the office of justice of the peace and militia offices excepted.”

This leads to the inquiry, whether the justices of the c-ourt of common pleas do in fact, by force of the statute under consideration, hold an office additional to that of judges of the common pleas ? The office, if any such has been conferred upon them, is a judicial office ; but a new judicial office could only be conferred by a commission from the governor, upon a nomination made by him and approved by the council, in the manner prescribed by the constitution. The legislature, by an ordinary legislative act, cannot appoint judicial officers. They may create judicial offices, leaving them to be filled by appointments made pursuant to the constitution. In fact, therefore, the only judicial office held by the presiding judge at the time of the rendition of the judgment, and the awarding of the sentence now sought to be reversed by this writ of error, was that of chief justice of the court of common pleas.

From this view of the case, it clearly results, that the constitutional objection, supposed to arise from the provision that the judges of the court of common pleas shall hold no other office, does not in fact exist here.

The ground of objection to the jurisdiction exercised bv the *515court of common pleas, which is more relied upon, is, that the municipal court of the city of Boston is still in existence, as a separate judicial tribunal, having criminal jurisdiction, and, as such, should have its presiding judge, regularly appointed and commissioned as municipal judge. If this position can be maintained, of course this judgment and award of sentence was without authority of law, and ought to be reversed.

In looking at the various provisions of St. 1843, c. 7, some of them will be found to be indicative of a purpose to continue, to some extent, a municipal court. By §§ 3 and 7, the name, style and caption are retained, and all precepts are to be under the seal of the municipal court. These provisions present objections which, though not insuperable, yet are certainly entitled to some consideration. They do, to some extent, seem to indicate a separate court, distinct from and independent of the court of common pleas.* But when we find that all the duties, required by law to be performed by the judge of the municipal court, are, by the very terms of the act, § 1, required hereafter to be performed by the justices of the court of common pleas, or by some one of them, we may properly consider whether these provisions a= to the name, style and seal of the court, may not be reconciled with the general object and purpose of the act, and thereby avoid a construction which would render the whole act nugatory.

The principle of exercising the criminal jurisdiction of the court of common pleas, distinct from its duties in civil suits, has been long known in practice. In some of the larger counties, distinct terms are by law established for the criminal business of that court; and at the terms established for either civil or criminal business, the court has no jurisdiction over cases of a different character. At the terms for criminal business, they are judges in criminal cases exclusively; as much so as when sitting to do the duties of judge in the municipal court in the city of Boston. See Rev. Sts. c. 82, §§ 41-43. St. 1839, c. 117.

Now it seems to us, that the provisions above alluded to, and *516which are thought to present some objection to the crin inal jurisdiction in the county of Suffolk, exercised by the court of common pleas, may fairly and reasonably be treated as provisions designed only to make the criminal jurisdiction of that court in the county of Suffolk distinct in its terms and places of sitting, in its records and all its proceedings, carrying out, substantially, the same provisions as now exist by law and in practice in the counties of Worcester and Middlesex, but in a form certainly not so free from objections, as are the acts regulating criminal trials in those counties. We think the St. of 1843, c. 7, must be understood and construed as a general and entire transfer to the court of common pleas of all criminal matters which had heretofore been cognizable by the judge of the municipal court; and therefore, if an appointment could now be made of a municipal judge, for the reason that the office has not been specially abrogated, yet the individual holding such office would exist, as a judge, in name only, and without any authority or jurisdiction. It seems, however, to result from the considerations we have suggested, that the office of judge of the municipal court was virtually abrogated by the act transferring its duties to the court of common pleas.

The result to which we have come is, therefore, that the act in question does not violate the constitutional provision contained in the amendments to the constitution, art. 8, and is not void for that cause : And as to the second point, that the act does abolish the office of judge of the municipal court, as a distinct and independent office, and transfers the jurisdiction of that court to the justices of the court of common pleas, separating all proceedings by the court of common pleas, in criminal matters, wholly from the civil jurisdiction exercised by that court in the county of Suffolk.

Judgment affirmed.