139 Ala. 453 | Ala. | 1903
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
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
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
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.