Felts v. Delaware, Lackawanna & Western Railroad

195 Pa. 21 | Pa. | 1900

Opinion by

Mb. Justice McCollum,

When this case was here before (170 Pa. 432), we held that the act of April 14, 1834, entitled “ An act relative to suits brought by and against canal and railroad companies,” was repealed by the act of March 30, 1875, entitled “An act relating to and authorizing changes of venue in civil causes.” A motion for a reargument was denied in a per curiam opinion in which we said, inter alia, that the act of 1875, “ was intended to introduee a system applicable to all cases that might arise, and to supersede and replace the incomplete system provided by the act of 1834. We thinlc it was effectual for that purpose:” 178 Pa. 290.

The present appeal appears to have been taken for the purpose of a reargument, which was allowed and duly considered, but which failed to convince us of error in our former conclusion, that the act of 1875 repealed the act of 1834.

It was within the power of the legislature to provide a system in conformity with article 3, section 23, of the constitution, and it was its plain duty to do so. Tke'power was exercised and the duty performed by the passage of the acts of March 18 and March 30, 1875. It is the act of March 30 on which the repeal of the act of 1834 is based. There is nothing in the act of March 18 which requires consideration in this case.

Change of venue, strictly speaking, means a change of the place of trial to another county, but is sometimes used to denote the transfer of the cause to another court or judge within the county or district in which it is pending: 4 Encyclopedia of Pleading and Practice, p. 375. “Change of venue” and “removal of causes” in statutes authorizing the transfer ofeauses are interchangeable and of the same significance: 119 Mo. 375. Change of venue in a state which has no nisi prius system is to all intents and purposes beyond mere form a transfer of cause: People v. Hurst, 41 Mich. 328.

In Denny v. Railroad Co., 2 Pa. C. C. R. 645, it was held that the act of April 14, 1834, making it the right of defendant corporations to have a change of venue on filing an affidavit, is repealed by the.act of March 30, 1875, which leaves the matter to the sound discretion of the court upon full hearing. Johnson, P. J., in delivering the opinion of the court, said, inter alia: “ The present constitution provides, article 3, section 23, that the power to change the venue in civil and criminal causes shall be vested in the courts, to.be exercised in such manner as shall be provided by law. This clause in the organic law required legislation. Accordingly the first legislature under the new constitution passed two general laws upon the subject of change of venue; the first in regard to criminal cases, the second as to civil cases. The former contains no repealing clause. The latter by its seventh section provides ‘ that all acts of the general assembly heretofore passed relative to change of venue in civil causes be and the same are hereby repealed.’ .... It is sweeping in its terms and is more than an implied repeal by its letter. The reason of the act adds force to this position. Prior to the adoption of the present constitution, local, special and partial legislation had filled our pamphlet laws. Many of these were of doubtful propriety, and enacted by doubtful means. The framers of the new constitution, in all their proceedings, showed a determination to prevent legislation of this character. . . . The acts of 1875 gave to all corporations and to all citizens the right to a change of venue upon the same terms.”

In the case last cited the railroad company, claiming to have a right to remove it to an adjacent county, filed an affidavit under the act of 1834. Its claim was denied on the ground that the act of 1834 was repealed by the act of March 30,1875. No appeal was taken from the decision. If since the passage of the act of March 30,1875 and prior to September, 1894, any appeal has been taken from the refusal of the court below to allow a change of venue applied for under the act of 1834, and within the period aforesaid, it has not come under our notice. The only appeals of this nature to which our attention has been called are those taken by the plaintiff in the case at bar.

The act of 1834 was restricted to a particular class of cases. It authorized either party in any suit or action brought in any of the courts of the commonwealth, by or against any canal or railroad company, to remove the same on filing the affidavit required, into the court of any other adjacent county through which the canal or railroad of such company was not located, and which suit was to be there proceeded in by the proper court in like manner and subject to like rules and proceedings as if it had remained in the court in which it was originally commenced. It provided for a change of venue, without the aid of the court from which the cause was removed, to the court of an adjacent county. It is an act plainly within the repealing clause of the act of March 30, 1875, by which a complete system is established for a change of venue in civil causes in accord with article 3, section 23, of the constitution. The specifications of error are therefore overruled.

Judgment affirmed.