Dudley v. Birmingham Railway, Light & Power Co.

McCLELLAN, C. J. The chief question involved in these cases is the constitutionality of an act of September 26, 1903, entitled thus: “An act authorizing the transfer of any civil cause pending in the city court of Bessemer, in the county court of Jefferson, in the State of Alabama, to the circuit court of Jefferson county, in said State, or to the city court of Birmingham, in said State, or to any other court of competent jurisdiction, sitting in the city of Birmingham.” — Local Acts, 1903, p. 369. All the provisions of this act are within or cognate to this title, and proper and adequate to the carrying out of the purpose therein expressed. The main grounds of the attack made upon the organic — 458 — integrity of the enactment are: First, that its purpose and operation are to provide for a change of venue in the cases to which it applies in a manner violative of section To of the Constitution, which is as follows: “The power to change the venue in civil and criminal causes is vested in the courts to be exercised in such manner as shall be provided by law”; second, that the act, being a local or special law, provides for a change of venue in the cases within its terms in violation of that part of section 104 of the Constitution, which is in the following language: “The legislature shall not pass a special, private or local .law in any of the following cases: * * * * * (12) — Providing for a change of venue in any case”; and, third, that the enactment is in violation of that part of section 105 of the Constitution which is in these words: “No- special, private or local law, shall be enacted in any case which is provided for by a general law, or when the relief sought can be given by any court of this State; * * * nor shall the legislature indirectly enact any such special, private or local law by the partial repeal of a general law”; the theory underlying this ground of objection to the constitutionality of this act being that a change of venue is provided for by the statute and that a change of venue in the cases dealt with is provided for by general law. The obviously pertinent and material inquiry going alike to each of the grounds of attack just stated is whether the removal of cases from the Bessemer city court, which sits at Bessemer, Jefferson county, and has territorial jurisdiction thereabouts' in said county, to other competent courts of that county which sit in Birmingham, the county seat, and have territorial jurisdiction throughout the county, involves a change of venue in such cases within the meaning of sections 75 and 104 of the constitution, and of the general law on that subject. The phrase “change of venue” has been used throughout the legislative history of the State to denote the removal of causes from one county to another county, and never removals from one court to another — 459 — in the same county. Statutes have been enacted from time to time either providing for the removal, or by the force of their own terms removing cases from one circuit court to another in a given county, or from circuit and chancery courts into a city or district court in the same county, and vice versa. In some instances the courts from one to the other of which removals have been thus effected have had different and distinct territorial jurisdiction within the county, and in some, as in the cases under consideration, one of such courts has had jurisdiction throughout the county while the local jurisdiction of the other has been confined to a certain definite part of the county. It has never been supposed that the provisions in these several acts for such removals of causes involved any change of venue in them; and it has never before been suggested that the statutes were violative of the organic provision now embodied in section 75 of the constitution, or that they dealt with a subject provided for by general laws in relation to changing the venue of actions. It has always heretofore been taken for granted that the transfer of a case from one court to another of the same county was a thing different and distinct and apart from the removal of a case from one county to another in the avoidance of conditions of prejudice existing in the first county which stood in the way of a fair and impartial trial in that county. That distinction is aptly preserved and most appositely illustrated in section 16 of the act which established this very city court of Bessemer. That section is such a clear legislative interpretation of what is meant by the term “change of venue” in the constitution and general statutes as distinguished from the removal of a case from one court to another in the same county that we cannot do better than set it out here: “Be it further enacted, that the venue of any cause in said city court may be changed to other counties than Jefferson under the same rules and regulations as govern changes of venue in the circuit court. Cases that are now or may hereafter be pending in the circuit court of Jefferson county, city court of Bir — 460 — mingham, and criminal court of Jefferson county, may be, by consent of tbe parties thereto, transferred to tbe said city court of Bessemer, wbicb court shall thereupon proceed to dispose of the same as if they had originally been instituted in said city court of Bessemer: and in like manner, cases may be transferred from the chancery court of Jefferson county to said city court of Bessemer; and in like manner cases may be transferred from said city court of Bessemer to the circuit court of Jefferson county, city court of Birmingham, criminal and chancery courts of Jefferson county, by consent of the parties thereto; and the clerk of the court from which said causes shall be so transferred shall deliver all the papers, pleadings and evidence pertaining to said causes, together with a certified transcript of all minute entries made therein, to the clerk of the court to which said cause shall be transferred.” Nothing further, we think, need be said in support of the proposition that legislative history demonstrates that transfers of causes such as are provided for in the act under consideration involve no change of venue within the meaning of sections 75 and 104 of the constitution and sections 4210 and 5309 of the Code. The same conclusion is reached upon a consideration of the grounds upon which venue may be changed and the reasons underlying provisions for the transfer of cases from one to another court of the county. Whether the venue of a case should be changed is a judicial question turning upon evidence adduced before the court as to the existence vel non of prejudice, in the county where the cause is pending, which -would prevent a fair and impartial trial, and as a judicial question it is committed by the organic law to the courts. The purpose is, of course, to remove the trial to a county where such prejudice does not exist. To change the court of trial in the same county would not accomplish this purpose. On the other hand, the transfer of a case from one court to another of the county is not in its nature a judicial — 461 — question, but one merely of convenience of judicial administration. It does not turn upon the facts1'in respect of each case, as does the inquiry of prejudice, but may well be determined upon considerations which apply to all cases or all cases of a general class pending in the courts, and which require no taking of testimony or judicial investigation to their development and presentation to the body having to pass upon them. It- is a question proper for legislative consideration and determination, and we feel assurance of conservative and correct decision in leaving it to the legislature, where it has been dealt with throughout the history of' the State. The general plenary power of the legislature has not been hampered or limited in this connection by the constitution, nor has that body ever undertaken by general laws to provide for such removal of cases as this act provides for. As we have said, all the provisions of the act of September 26, 1903, are within the subject expressed in its title. Section 5 of the act is not open to the objection that its provision for action on the part of the court to which the cause has been removed compelling the clerk of the Bessemer city court to deliver the papers, etc., of the case to the clerk of the court into which the removal is had is not complimentary and germane and necessary to the carrying out of the purpose of the act as expressed in its title. — Ex parte Mayor and Aldermen of Birmingham, 116 Ala. 186; State ex rel v. Griffin, et al., 132 Ala. 47; Mitchell, Judge, etc. v. State ex rel Florence Dispensary, 134 Ala. 392. Nor is the provision of section 5 to Avhich we have just referred beyond legislative competency in respect of vesting authority in one court to control or compel action by the clerk of another court. By the terms of the act the filing of the petition for removal divests the Bessemer court of all authority and jurisdiction in and over the particular case, and thereafter the clerk of that court is the mere official custodian of certain papers,etc., and under a ministerial duty to deliver them to the clerk of another court. True the act also provides that — 462 — tlie Bessemer court shall make an order for the removal; but such order is matter of course, and is required to be made more in conservation of orderliness and formality of the proceeding, and to háve a record of the removal in the Bessemer court than as affecting the status of the case in the court to which the removal has already in reality been effected by the filing in Bessemer court of the statutory petition. It follows that the judgment in tire case of Dudley v. Birmingham Railway, Light '& Power Company must be affirmed. In Ex parte Birmingham Raihoay, Light & Power Company, mandamus will be awarded as prayed, but the writ will not issue unless the respondent, upon being advised of our views in the premises, fails to enter the order of removal.