State Ex Rel. Hazel v. Watkins

*506 BRADLEY, J. We transferred this cause to the Supreme Court on the ground, as we believed, that we had no jurisdiction. [State ex rel. Hazel et al. v. Watkins, 227 S. W. 1059.] The Supreme Court retransferred, holding that jurisdiction is here., [State ex rel. Hazel et al. v. Watkins, 245 S. W. 1059.] The cause is in mandamus to compel a justice of the peace to grant a change of venue in a criminal case. The alternative writ was granted by the judge of the circuit court in vacation. Respondent below, appellant here, made return. To this return relators demurred. The demurrer was sustained and apellant refusing to further plead, peremptory writ issued, and respondent below appealed. April 6, 1920, an affidavit was filed before appellant justice of the peace for a State warrant, in which affidavit relators were charged with a felony. The war-want issued, and relators were arrested, and gave bond for their appearance before appellant justice for preliminary hearing. In due time relators filed their affidavit for change of venue. In their affidavit for change of *507 venue relators charge that “they cannot have a fair and impartial trial before George W. Watkins, a justice of the peace, within and for Little Prairie Township, Pemiscot County, Missouri, because of said justice’s bias and prejudice against these defendants. The above-named defendants further say that they cannot have a fair and impartial trial before J. C. Burrus and R. R. Ring, other justices within and for Little Prairie Township, Pemiscot County, Missouri, becausé of said justices’ bias and prejudice against these defendants..” There were four justices of the peace in Little Prairie Township. The affidavit for a. change of venue went against three of these justices. Unless a justice before whom the cause was pending sent it to the only remaining justice in the township not disqualified by the affidavit, then the cause, of necessity, would have gone out of the township. The justice before whom the cause was pending, appellant here, declined to send it to the only remaining not disqualified justice, but according to his return made an order granting the change of venue, and further ordered that the cause be sent to Gi. Gr. Bowen, a justice of the peace in Cooter Township. The return further recited that the orders made relative to the change of venue were made prior to the institution of this cause, and before the issuance or service of the alternative writ. It is further stated in the return that the files and transcript were being held by the justice pending the orders of the circuit court in the cause now here. As we view this case we have two questions for disposition. (1) Will mandamus lie? (2) Under what is now section 3775, Revised Statutes 1919, should the cause have gone to the justice of the peace in Little Prairie Township not disqualified by the affidavit? We will dispose of these questions in the reverse order'. The provision allowing one additional justice under what is now section 2688, Revised Statutes 1919, in case there is an incorporated town or city in the township, having *508 over 2000 inhabitants, was added in 1868, Laws 1868, p. 60. The five-mile provision was added in 1877. [Laws 1877, p. 282.] The statute allowing a change of venue from a justice of the peace was passed in 1879. [Sec; 2039 et seq., R. S. 1879.,] It appears, therefore, that when the statute was passed allowing a change of venue 'from a justice of the peace that at that time there were provisions by which a township might have in it as many as four justices of the peace. Section 2042, Revised Statutes 1879, made the section applicable to change of venue in misdemeanors also applicable to change of venue in felony preliminaries, and such has been the law ever .since. -[See section 3777, Revised Statutes 1919.] Section 2039, Revised Statutes .1879, provided for the affidavit, etc., for the change. This section has remained without material change. Section 20401, Revised Statutes 1879, provided that if an affidavit he filed the change of venue must be allowed, and if against the justice that the justice must immediately transmit all of the original papers and a transcript of his docket entries “to the next nearest justice in the township.” Under that statute a defendant could disqualify but one justice. This statute was amended in 1891. [Laws 1891, pp. 120-121.] The amended statute has remained unchanged, and is now section 3775, Revised Statutes 1919, and provides that if the affidavit be filed against the justice the change of venue must be allowed, and the justice must immediately transmit all the original .papers and a transcript of his docket entries “to the next nearest justice in the township, if there be one, unless the party asking for a change of venue shall, in his affidavit,” disqualify the other justice, “then to a justice in some other township in the county.” It is contended .by appellant that the defendants could not disqualify more than two justices by their affidavit, viz., the justice before whom the cause was pending and the next nearest justice, and that the attempted disqualification of the third one should be con *509 sidered as surplusage in the affidavit, and that under what is now section 3775 and the affidavit it was his plain duty to send the cause to a justice in some other township in the county. The return recites, and such allegation is admitted by the demurrer, that Burrus was the next nearest justice. The affidavit, therefore, disqualified the justice before whom the cause was pending, and also the next nearest justice, and attempted to disqualify a third justice. It is undoubtedly the policy of the law to have a misdemeanor tried in the township, if before a justice of the peace, where the offense is committed. We are, it is time, dealing with change of venue question growing out of a charge for a felony, but as we have seen section 3777. Revised Statutes 1919, makes the law applicable to a change of venue in a misdemeanor before a justice of the peace, also applicable to a change of venue in a preliminary on a felony charge. Hence we shall, and should, proceed as if relators had been charged with a misdemeanor instead of a felony. Section 3759, Revised Statutes 1919, among other things, provides that all prosecutions before justices of the peace for misdemeanor shall be commenced and prosecuted in the township wherein the offense is alleged to have been committed, unless the cause goes out of the township on a change of venue as provided by law. If we adopt appellant’s construction of section 3775' then if a defendant charged with a misdemeanor before a justice of the peace files an affidavit for a change of venue, and therein disqualifies the justice whom the cause is filed, and also disqualifies the next nearest justice, the cause would go to a justice in some other township in the country, although there may be a justice in the township and community that is not disqualified to try the cause. The law providing for additional justices in a township was enacted for the purpose, no doubt, of providing for the necessities of the more populous communities, and the communities remote from a justice of the peace; and also to provide for such township a sufficient number of justices of the peace to take care of the justice of the peace litigation arising therein. This *510 purpose, we think, should have some consideration in disposing of the question before us. So far as we know the contemporaneous construction of section 3775, Revised Statutes 1919, since the amendment in 1891, has been as relators contend. That is, when there is a justice of the peace in the township not disqualified by an affidavit for a change of venue the cause will not be sent out of the township, but will be sent to a justice in the township who is not disqualified. We find no case construing section 3775, but the following cases lend some support to our construction. [Guy v. Railroad, 197 Mo. 174, 93 S. W. 940 ; State ex rel. v. O’Hallaron, 144 Mo. App. 570, 129 S. W. 227; Same Case, 160 Mo. App. 626, 140 S. W. 1198; State ex rel. v. Dabbs, 118 Mo. App. 663, 95 S. W. 275.] The O’Hallaron Case involved a question on an affidavit for a change of venue in a civil case from a justice of the peace in St. Louis. It was held that the general statutory law relating to changes of venue taken from justices of the peace of townships applied to .changes of venue taken from justices of the peace in districts in St. Louis. The applicable section .is now section 2805, Revised Statutes 1919., This section provides that upon filing the affidavit in due time the justice must allow the change and transmit the papers, etc., to some convenient justice in the township, “unless the party asking fop the change of venue shall, in his affidavit, state that the other justice in the township ’ ’ is disqualified, then to a justice in some other township in the county.” About the only difference between section 2805, relating to a change of venue in a civil case, and section 3775, relating to a change of venue in misdemeanors and felony preliminaries, is that in section 3775 the expression next nearest is used, whereas in section 2805 the term convenient is used. Both use the term other. If the term other in the criminal section refers to the next nearest justice, then in the civil section the term other refers to some convenient justice. If we adopt appellant’s con *511 struction of section 3775, then the same construction could with equal reason he placed upon section 2805. If such construction he placed upon section 2805, and an affidavit for a change of venue in a civil cause were filed disqualifying the justice before whom the cause was pending, and some convenient justice in the township, then the cause would go out of the township, although there might be another not disqualified convenient justice in the township. So far -as we know the contemporaneous construction of section 2805 Revised Statutes 1919, the civil section, has been that a cause is not sent out of the township when there is remaining in the township a justice not disqualified. In State ex rel. v. O’Hallaron, supra, Judge Nixon, speaking for this court said: “Now, if respondent’s contention, that because a justice of the peace is declared to have jurisdiction coextensive with the city he may therefore send a case on charge of venue to any justice in the city, shall be upheld as to the City of St. Louis, we see no reason why it . should not apply to counties, and justices in townships would then be permitted to send a case on change of venue to any other justice in the county even though there remained a qualified justice in the same township.” (Italics ours.) Appellant’s able’ counsel stand on the strict letter of the statute (Sec. 3775, R. S. 1919), and there is support therein for their contention; but when we take into consideration the contemporaneous construction; the policy of the law and the statute requiring that a misdemeanor, when prosecuted in a justice o'f the peace court, shall be in the township where it is alleged to have been committed, unless taken out on a change of venue; and also the object and purpose of the law providing for additional justices of the peace, we are of the opinion that the change of venue in the cause at bar should have g’one to the remaining" qualified justice in Little Prairie Township. A cause, in a justice of the peace court, civil or criminal in our opinion, cannot be sent out of the *512 township on change of venne, unless all the justices therein are disqualified or unless the affidavit goes against the inhabitants. Appellant argues that this construction would permit relators to select the forum. But such in effect would be the result in any township in the State where there are only two justices of the peace, and where a defendant in a criminal case filed an affidavit for a change of venue, and disqualified the justice before whom the cause was pending. The order of appellant attempting to send the cause to Gr. GK Bowen, a justice of the peace of Cooter Township was a nullity, and the cause remains the same as if no order had been made. The cause stands in effect the same as if appellant had refused to allow the change of venue. In such case mandamus will lie. [State ex rel. v. Clayton, 34 Mo. App. 563; State ex rel. v. Mc-Cracken, 60 Mo. App. 650 ; Furniture Co. v. Craig, 160 Mo. App. 91, 141 S. W. 457.] The judgment below should be affirmed and it is so ordered. Cox, P. J., and Farrington, J., concur.