38 S.C. 399 | S.C. | 1893
The opinion of the court was delivered by
After issue joined in an action for damages arising from an alleged breach of contract, a motion was made, after due notice by defendant, to change the place of trial from the Court of Common Pleas for Colleton County to that of Sumter County, on the ground that the convenience of witnesses and the ends of justice would be thereby Subserved. The notice of motion, affidavit accompanying the same, and the order of his honor, Judge Aldrich, who heard the same at chambers in Aiken, will be set out in the report of the cause. The plaintiff now seeks to reverse the order referred to, and, as his grounds therefor, complains: 1. Because his honor, Judge Aldrich, had no jurisdiction at chambers to grant the order. 2., Because the notice of application for the order was insufficient, and did not confer jurisdiction to grant such order. 3. Because the affidavit did not show, nor did the judge find, that the convenience of witnesses and the ends of justice would be promoted by changing of the place of trial. 4. Because the application for a change of venue was not supported by affidavits, showing that a fair and impartial trial could not be had in the County of Colleton.
As was stated in the able argument of appellant, the appeal involves, substantially, these propositions: First. Has a Circuit Judge power, at chambers, to make an order changing the venue in a case pending in the Circuit Court? Second. If he has such power, and it is a matter resting in his discretion, is it not a judicial discretion, and, if so, does the affidavit authorize the exercise of the power1! Third. Can the venue be changed by an order by either the court in term time or a judge sitting in chambers, except for the cause provided in section 2, article Y., of the Constitution of this State?
This presents a grave question. A different view has been entertained by the legislature and the courts of this State for nearly a quarter of a century. This latter fact cannot, and should not, control us in refusing a support to the legislation now assailed, if it contravenes the organic law of this commonwealth; for, while it is true, as was said by Mr. Justice McGowan, in Pelzer, Rodgers & Co. v. Campbell & Co., 15 S. C., 592, “it is no small matter to declare an act of the legislature unconstitutional; the legislature is the law-making power of the State upon all subjects not prohibited by the Constitution, every part of which should, if possible, be so construed as to allow full force to section 1 of article III., which vests the full legislative power of the State in the General Assembly” — yet it must always be remembered that the provisions of the State Constitution control the executive, the legislative, and the judicial departments of our government, and a citizen whose rights are impinged by the action of any one of those
It is important to remember that, in construing the provisions of the Constitution of a State, as opposed to that of the Federal Constitution, when a statute of the State is in ques- • tion, “a State Constitution proceeds on the idea that all legislative functions are in the legislature (Bish. Wr. L., sec. 92), and, hence, the legislature may exercise all the powers which are properly legislative, and which are not taken away by our own or by the Federal Constitution.” Sharpless v. Philadelphia, 21 Pa. St., 147. There is no provision in our State Constitution that restricts the power of our General Assembly in enacting any laws for a change of venue, unless section 2, article V., does so. What does the Constitution, in section 2 of article V., provide”? Its language is plain and unmistakable. It directs and requires the General Assembly to enact laws to provide a change of venue, in either a civil or criminal cause pending in the Circuit Courts of the State, whenever it appears, by affidavits, that a fair trial cannot be had in the county where the action or prosecution was commenced.
The appellant contends that the doctrine, “eocpressio unius, exclusio alterius,” prevents the legislature from providing by law for the change of venue for any other cause than that set forth in section 2 of article V., viz: when a fair trial cannot be had in the county where the action or prosecution has begun; in other words, that this provision is an exhaustion of all or any other legislative power as to changes of venue. It is very clear that the legislature, in enacting the laws as required by this section of the Constitution, is limited to the action therein specified. So we will find our General Assembly so construed this section; for in September, 1868, a few months after the Constitution was ratified, it enacted a law embodying the requirements of this section (14 Stat., 84), and that law still remains amongst our statutes.. The case of Duncan v. Barnett, 11 S. C.,
We cannot regard the section 2 of article Y. as denying to the legislature the right to enact any other law than that required by that section, on the general subject of a change of venue. We reach this conclusion, from the language there employed, from the construction given it by the legislature immediately after its ratification by the people, by the acquiescence of our courts, but especially from the principle of law recognized by this court in the case of Pelzer, Rodgers & Co. v. Campbell, 15 S. C., 592: “Implied limitations of legislative power are only admissible when the implication is necessary, as where language conveying a particular intent cannot have its proper force without such implication.” The language here employed in the Constitution makes no reference, directly or indirectly, to any other cause for change of venue except in the case of the inability to obtain a fair trial in the county where the action or prosecution was commenced. The legislature in 1868, as before stated, carried this intent of the framers of the Constitution into effect. 14 Stat., 84. Also the provision of the Code now brought into question was enacted 1 March, 1870, as section 149 of that instrument. The courts of this State have enforced the section of the Code now in question.
The doctrine of implied, limitations of the' power of legislation by any provision of the Constitution should be clear and necessary. We have hereinbefore treated of the general doctrine sufficiently. But it is contended by the appellant that, under the decisions of this court in Pelzer, Rodgers & Co. v. Campbell, supra, wherein it is held: “It is true that, under certain circumstances, the power to legislate upon a subject, may be taken away by a provision of the’Constitution simply affirmative, as well as by express words, as where the provision is of such a nature that its purpose would be frustrated by further legislation on the subject, which occurs generally in reference to modes of procedure, and in matter enumerated,” when the provision of section 11 of article I., “The right of trial by jury shall remain inviolate,” is considered in connection with section 2 of article Y., it must be held that said section 2 of article Y. is a proviso added to said section 11 of article I. It is contended, that thus it is made to appear by clear implication, that only can the right to a jury trial be interfered with, when it is made to appear by affidavit that a fair trial cannot be had in the county where the action or prosecution was commenced, and, therefore, as the section of the Code (section 147) seeks to add another class of cases where the right of trial by jury may be affected, it is unconstitutional.