46 Tex. 351 | Tex. | 1876
This is a proceeding by mandamus, to compel the clerk of the District Court of Kaufman county to transmit the papers in a cause, upon an order changing the venue thereof to the county of Van Zandt.
The judge of the District Court, for the district in which the county of Kaufman is situated, being disqualified to try the case, from having been of counsel therein, upon motion of one of the parties, an order was made, and entered of record, by the District Court of Kaufman county, changing the venue of said case to the county of Van Zandt.
The question in this case is, was said order valid under the Constitution and laws of this State ?
This is not an ordinary question of the change of venue, on account of the prejudice, or other cause specified in the the law, for obtaining an impartial jury for the trial of a cause. It is a mode of obtaining a district judge to try the cause, when the regular incumbent is disqualified. It pertains to the organism of the State Government.
The Constitution of this State prescribes the modes of providing officers in the judicial department for all of the courts, generally by a popular election, and defines then powers and
The district judge, under our present Constitution, is elected by the qualified voters of his district. In the event of his disqualification in any case, for the causes. therein set forth, the modes are prescribed by which a substituted judge may be procured for the trial of the case in the county where the suit is pending, as follows to wit: “ The parties may by consent appoint a proper person to try said cause, or upon then-failing to do so, a competent person may be appointed to try the same, in the county where it is pending, in such mañuelas may be prescribed by the law. And the district judges may exchange districts, or hold courts for each other when they may deem it expedient, and shall do so, when directed by law.” (Section 11, art. V, Constitution 1876.)
It is to be noticed that in all of the modes herein provided, it is contemplated that the case is to be tried in the county where the suit is pending.
This is complete and exhaustive, in respect to the modes of substituting a district judge, in the event of a disqualifiear tionof the judge of the district, and supplants all other modes that were formerly provided in the Constitution of 1869 and in the law -of 1854, one of which was by a change of venue. (Const., sec, 11, Art V; Paschal’s Dig., p. 1116, art. 1417.)
There is another clause of the Constitution of 1876, which authorizes the Legislature to “provide for the holding of District Courts, when the judge thereof is absent, or is from any cause disabled or disqualified from presiding.” (Sec. 7, Art. V.)
Under the power here conferred, the Legislature has passed' a law, that when any district judge shall be absent from a court, or shall be unable to hold said court, there shall be no failure of the -term on that account, and that a special judge may be chosen by the practicing lawyers there and then present. (Acts of 1876, p. 140, sec. 1.) The operation of this law may incidentally furnish a special judge for the term
This would seem to be conclusive, as a legislative construction, that the disqualification of the district judge in a particular case was no longer to be a ground for the change of venue. To carry out the same general object, the Legislature passed another law, permitting a case, whose venue had been changed by reason of the disqualification'of the district judge, to be moved back, when the disqualification no longer exists. (Acts of 1876, sec. 1, p. 49.)
It may be contended that the law of 1854, providing for a change of venue in such case, may he upheld as a subsisting law, by another clause of the Constitution of 1876, which reads as follows, to wit: “ The poxver to change the venue in civil and criminal cases shall be vested in the courts, to he exercised in such manner as shall be provided by law; and the Legislature shall pass laws for that purpose.” (Sec. 45, Art. III.) This, as well as that part of section 56 in the same article, which prohibits a special law “ changing the venue in civil or criminal cases,” is designed as a limitation of the legislative power, and to require that a change of venue shall be a judicial act, under a general law prescribed for the purpose.
It is not to be deduced from this that it was intended tgive to the Legislature the poAver to change the venue in a case because the district judge was disqualified to try it, when the Constitution in another part of it had proAdded the modes
The judgment of the District Court refusing to grant a peremptory mandamus, is therefore affirmed.
Aeeirmed.
