Haglin & Pope v. Rogers

Eakin, J. By Act of January 23, 1875, any party to a suit, upon his own verified petition, supported by the affidavits of two credible witnesses, may obtain an order for a change of venue. The order may be made in term time, at the calling of the case, or by the judge, at any time, on due-notice to the adverse party or his attorney. Section 4 of the Act provides that in all cases where-such order may be made, the clerk shall make a certified copy of all the orders in the case, and “upon the payment of the transmission fees, hereinafter provided,” shall transmit the papers in the case to the clerk of the court to which the venue is changed, for which he shall receive ten cents a mile both ways, to be paid by the party obtaining theofider. Sec. 5 is, in full, as follows : “ If the above mentioned, fee is not paid, or arranged with the clerk, within fifteen days from the granting of said order, the order shall be null and void. Provided, That the judge granting the order may extend the time of making such payment, which shall be-stated in the order. Provided further, That the adverse party, if he chooses, may make such payment. But one-order for a change of venue shall be granted to the same-party in the same action.” By Section 6, it is provided that the action shall stand for-trial in the court to which the change is made, at the first term commencing more than ten days from the filing of the papers in its office. In this case the papers were transmitted to, and filed in, the office of the Crawford Circuit Court, more than ten days-before the commencement of its next term after the order-had been made, but the fees were not paid nor arranged * as the affidavit states, within fifteen days after the order. The only question is, upon the construction of the- 5th section.. Is it imperative that the fee should be paid or arranged within the time, or the order shall be as if never made ? Or is it allowable to the clerk to transmit the papers within a reasonable time upon payment of the fee, or without any payment of the fees at all? 1st. As to the propriety of the writ of mandamus. The law never presumes nor admits its own uncertainty. Acts may be difficult to construe ; principles hard to discover. They may require of the judges patient thought, laborious investigation of authorities, and the aid of learned counsel. But when constructions are made, or principles cleared, the ■courts adjudge the law. They do not create or determine it by discretion. It is announced as what it was, and is. If a •law be indeed mandatory, leaving in the judge no discretion as to obedience, it is none the less so, because he may at first mistake its meaning, or find it difficult of discovery. The •duty to construe, does not destroy the obligation of obedience, nor make that a matter of judicial discretion, which, if more clearly expressed, would at first have been seen to •be mandatory. The Hon. Circuit Judge construed the law to be, in accordance with the plain import and strict construction of the language of the Act, and made the efficacy of the order for .removal to depend alone upon thsfaot of payment, or arrangement ; holding that to transfer the jurisdiction,the fee must not -only have been paid to, or arranged with, the clerk, but also "that it must have been done within fifteen days from the time •of making the order ; holding further, that the failure was a ■matter which might be shown by affidavit. ■ Statutes are to be construed according to the intention of the Legislature, of which the language of the Act is ordinarily the test, but not always the conclusive indication. Cases sometimes arise in which the courts, to reach the ¿rue intention, must disregard the ordinary significance of the language. Neither grammar nor etymology are parts of the Common or Statutory Law. They constitute its “ context,” in which, according to the quaint old English writers, it is not well to stick. They but clothe the Legislative intent, which makes the equity of Statute, and is more potent than language. After the intention is discovered, then the courts have nothing to do with its policy, but must enforce it, if constitutional. Mr. Sedgwick, in his work on Const, and Statutory Law, p. 254, 2d JEd., supporting the remark by full citations, says: that it “has been repeatedly asserted and practiced upon' by the highest authority ” that in construing a Statute,“the judges have a right to decide,in some cases, even in •direct contravention of its language.” The remark has been approvingly quoted by Mr. Hammond in his notes to Siebers “ Legad and Political Hermenentics,'1'’ appendix,p. 285 ; and the digests of the several American States show its universal adoption. Let us be content for the present to notice some decisions to the same effect, of our own, as follows : Reynolds v. Holland, 35 Ark., 56; Haney v. The State, 34 Ib., 263; Wassell v. Tunnah, 25 Ib., 101: McKenzie v. Murphy, 24 Ib., 155. In Woodruff v. State, 3 Id., 285, it was held, that when the intention of a Statute should be discovered, it ought to be followed, although it might seem contrary to the letter. In Wilson v. Biscoe, 11 Ib., 44, it was considered that, if from a view of the whole Act, the intent is different from the literal import of some of its terms, then the intent should prevail. By Sec. 2 of Chap. 101 of the Revised Statutes, it was provided that “every mortgage, whether for real or personal property, shall be a lien on the mortgaged property from the time the same is filed in the recorder’s office for record and not before.” No language could be stronger, more express or explicit to convey the idea, that a mortgage should be no lien at all, before that time. Yet this court in Main et al., v. Alexander, 9 Ib., 112, held and has ever since rigidly adhered to the position that every mortgage was a lien between the parties, from the time of its execution, whether recorded or not. Chief Justice Johnson, in delivering the opinion, conceded that the language of the; Act was exceedingly broad and comprehensive, and, if taken in a literal sense, would forbid the creation of a lien by an-unrecorded mortgage. Yet the court would not conceive-that the Legislature really intended so unreasonable a thing-as to prevent parties from making such contracts between themselves, where third persons could not be injured; although there was nothing in the law, beyond the reason of it, to show that the Legislature meant anything else than it had said. A stronger case of the utter disregard of language, subordinating it wholly to intention, in the absence of all constitutional objections, cannot be found. The propriety of this decision, in this respect, has never been questioned. With these views we will return to the case in judgment.. The Act is strictly remedial, and to be construed liberally,, to meet the evil intended to be alleviated, and to advance the remedy. “ Everything is tobe done in advancement of' the remedy that can be given, consistently with any construction that can be put upon it.” Sedgwick on St. and Const. Law, p. 309. The evil to be avoided was the hardship of compelling suitors to go to trial in any county, where there might be against them, or their cause, an undue-prejudice. Every citizen instinctively feels the injustice of being compelled to submit to this, and a change of venue is almost necessary, to preserve confidence in the impartiality of the courts. This policy of changing the venue is to be-advanced, and not embarrassed nor retarded, and those eonstructions which have, the'.latter effect are to be avoided, if any others can be found consistent with the intent. A secondary policy is also manifest, with the evil it is intended to remedy. The expense of transmitting the transcript between the counties, if made to fall upon the clerk, would be oppressive — even if he were only required to advance them, to be ultimately repaid. They would, in each cage, be certain, being twenty cents for each mile of distance. It was a plain, sensible, and obvious provision to require that the sum requisite for the purpose should, at an early day, be deposited with the clerk; and, as an incentive to prompt payment, to provide that unless that were done, the order made upon him, though peremptory in its terms, should have no binding force. He need not obey it, even if payment .should be afterwards tendered. As to himself, he might consider its efficacy gone — “ null and void.” But there is nothing within the Act which rigidly requires him, in any case, to send over the papers ■ within any definite time. They ought, if reasonably possible, to be at their destination full ten- days before the term of the court to which the venue may be changed ; but he might not be able to do that in fifteen days — even if the fee had been paid to him the day after the order ; and there is nothing apparent, in the reason of things, which would seem to preclude him from sending them with or without any tender, or payment, pr arrangement for the fee, at all. Upon the other hand, it is suggested very plausibly, and the suggestion has received the grave consideration it deserves, that the clause of the proviso is not wholly, nor even principally, for the bénefit of the .clerk; but that it is the policy of the Act to require payment in the limited time to stand as notice to the opposite party that the removal has been perfected, and the order converted from a conditional to a positive nature. If this were the design, the clerk could not receive the fee after the time, nor transmit the papers so as to have any effect. There-is nothing in the language of the Act to indicate any intention other than that of protecting the clerk. In the first place, such notice as is supposed does not seem highly essential. The order for the change is made either in open court, with the knowledge of all parties ; or in vacation, on express notice. The opposite party knows where to follow the case; and, if the papers are not transmitted ten days before the next term, he knows that he need not attend. The Circuit Court business is done through attorneys, whose easy access to, and familiarity with, the clerks, render it easy, at all times, to keep watch of the case. But, above all, we feel sure that if the Legislature had meant to provide that the opposite party should know, definitely, in fifteen days, to.which court he was to resort thereafter, or had had that in view, in framing the Act, it would have adopted some apter mode, than to require that knowledge to be ascertained from something done privately between the petitioner and the clerk — or something which need not be done at all, but only in some vague fashion arranged; and concerning which the clerk need make no public entry, nor, so far as the law is concerned, tell a human being. Such an intention is not reasonably to be presumed from anything in the language of the Act. It is ingeniously reasoned out, but, after all, it is a mere speculation as to intent. The Legislature might have effected the policy indicated, very easily, by directing that the order for change of venue should be provisional, on the subsequent performance of some act in the clerk’s office within a certain time, to be noted of record, which would be notice to both courts, and to the parties in the suit, of the precise time when the jurisdiction had shifted. It did not do that, nor intimate an intention of accomplishing such an object. Many inconveniences, with much confusion and uncertainty of jurisdiction, would surely arise from adopting the ■construction of the respondent. Neither court might, for •a long time, know where the jurisdiction really was, and much work might be idly done. For, if the objection be ■good at all, it would, in local causes, remain good after years of litigation and enormous expense. It might, th¿n, be insisted for the first time, by one party or the other, that the fee'had not been really paid within fifteen days, but in sixteen, or some other time; and the clerk had concealed the fact. Or, if the papers had not been transmitted, and the cause had proceeded in the original court, it might transpire that the fee actually had been paid in the fifteen ■days, and, for some cause, or change of purpose, the papers had not been sent. In either case, the whole proceedings might be void ; in the first, because jurisdiction Rad never been acquired; in the last, because it had been irrevocably divested. Besides, it does not comport with the Tespect and confidence due the recoi’ds of Superior Courts, to make the validity or invalidity of orders positive on their face, depend upon the occurrence or non-occurrence of trivial facts en pais, between individuals. We will not readily attribute to the Legislature such intent. A fair construction of the Statute — the one attended with the fewest inconveniences, and absurdities, is to allow the clerk, after the fifteen days, to waive the non-payment of the fees, and to transmit the papers, if so disposed, ■although he can not be compelled to do so, and to make the jurisdiction of the court, to which a change of venue may be taken, depend, not at all upon the small matter of the payment or arrangement of a few dollars with the clerk, but upon the reception of the necessary papers, accompanied by the record, under seal, of the solemn order of the court transferring the cause. We think the response to the alternative writ insufficient, and direct that it be made peremptory.