Ex parte Banks

WALKER, J.

The decision of the question before this court depends upon the construction of the statute in reference to changes of venue in criminal cases. If the statute confers upon accused persons a legal right, not determinable alone by the judgment of the court to which the application is made, this court must, in the performance of the constitutional duty of exercising “ a general superintendence and control of inferior jurisdictions”, revise the action of the court below in reference to that right. If the statute confers a right to a change of venue, only when the judgment of the court hearing the application is convinced that a fair and impartial trial cannot be had in the county in which the cause is pending, the decision of the court is not revisable, by mandamus or otherwise.

Sections 3608 and 3609 of the Code are in the following words : “ The trial of any person charged with an indictable offence may be removed to another county, on the application of the defendant, duly supported by affidavit.” — “The application must set forth specifically the reasons why the defendant cannot have a fair and impartial trial in the county in *35 which the indictment was found, and must be made as early as practicable before the trial, or may be made after conviction, on a new trial granted.”

The word “ may” in a statute, although a word of permission, is sometimes construed as if it were the synonym of “ must,” or “ shall”. The instances in which it is to be so construed are said, in a decision of this court, to be where the public interests and rights arc concerned, and where the public or third persons have a claim de jure that the power shall be exercised. — Ex parte Simonton, 9 Porter, 395 . The language of this court in another case, determining the effect of permissive words, is as follows : “ Such words, when used in a statute, are regarded as peremptory, when the public, or an individual, has a right de jture that the powers conferred should be exercised. — Gould v. Hayes, 19 Ala. 462 .

The effect of the principle thus enunciated, in kindred language, in the two cases cited, is, that “ may” must be, by construction, converted into an imperative word, for the purpose of sustaining and enforcing rights, and not for the purpose of creating them, or determining their character. A mandatory meaning may be imputed to the word “ may” in the statute quoted, if the statute has conferred a right; but it involves an unauthorized extension of the principle, to resort to that construction for the purpose of showing that the statute designed to confer a right, or for the purpose of determining the character of the right conferred. There can be no doubt, that whore a right is conferred, or something for the public benefit, or in promotion of public justice, is prescribed, and authority is conferred by permissive words to carry out the statutory purpose, those words are obligatory, and the exercise of the authority may bo demanded as a matter of right, in an appropriate case. — Dwarris on Statutes, 53. The permissive word is to receive an obligatory construction, because the statute confers a right, or is for the public benefit, or in promotion of justice. That construction results from the fact that a right is conferred, and is not the controlling rule in ascertaining the purpose of the legislature as to the conferring of a right. The word “ may”, in the statute under consideration, cannot be construed as “ must” for the purpose of showing that an unconditional right to a change of venue, ir *36 respective of the judgment of the court hearing the application, is conferred. In order to determine whether a right is bestowed, and how that right is to be ascertained, we must resort to the usual rules for the interpretation of statutes ; and afterwards we must give the permissive words such a construction as will secure the enforcement of the rights Conferred.

Does, then, the statute confer an unqualified legal right to a change of venue, when the proper showing is made, or merely a right to claim it from the enlightened judgment of the court to which the application is made ? In the former alternative, “ may”, as found in the statute, will be construed as mandatory. In the latter alternative, we must give it its accustomed signification.

The act of 1819 (Clay’s Digest, 343, § 166) is in the following words: “ Judges of the circuit courts, within their" respective circuits, at or before the first trial term of any suit, civil or criminal, shall have the power to change the venue thereof, on good and sufficient cause, set forth and duly supported by oath or affirmation.” The act of 1821 (Clay’s Digest, 480, § 26) is in the following language : “ It shall belawful for the judges of the circuit courts, respectively, to grant to any person charged with a criminal offence a change of venue, for sufficient cause shown, at any time, either at the first trial term, or, if the case should be continued, or a new trial had after conviction, at a'subsequent term.” There is no matter of difference between these two statutes and the sections of the Oo.de quoted, which could affect the question of .the revising power of this court over the action of the circuit court under them. The former of the old statutes uses the words “ shall have power,” &c. The latter uses the words, “ it shall be lawfulThe language of the Code is, “ the trial of auy person charged with an indictable offence may be removed,” &c. No material distinction can be drawn, as to the import of the three expressions, “ shall have power”, “ shall be lawful for”, and “ may”. They are alike permissive words, which, in their strict meaning, import an authority conferred, and not an obligation imposed. In Gould v. Hayes, supra,, the words “ shall have full power” were under construction ; and in Ex parte Simonton, the word “ may” was construed. The expressions in the *37 two decisions were alike treated as permissive words, susceptible of an imperative construction when a right is conferred, and the public or third persons have a right de jure that the power should be exercised.

The two old statutes and the Code are different in this: one of the former says, that the change of venue shall be granted for “ sufficient cause'’, and the other for “ good and sufficient cairn”; while the Code prescribes the inability of the defendant to have a fair and impartial trial in the county as the cause for a change of venue. The Code states the cause for which the venue may be changed ; the old law leaves it undefined. The old law leaves undetermined the cause, and the sufficiency of the proof; the Code determines the cause, but leaves the sufficiency of the proof that the cause exists to be determined by the judge. The difference in this respect affords a just argument to prove that the margin left for the judgment of the court below is narrowed by the Code, but not that it is taken away. When the cause for a change of venue is prescribed, there remains still a largo margin for the exercise of the judgment and’ discretion of the court. Even before the adoption of the Code, the practice in the circuit courts had fixed the improbability that a fair and impartial trial could be had in the county as the cause for a change of venue ; so that there is a correspondence between the practical effect of the old law, and the language of the new. It is fairly inferrible, therefore, that the departure in this respect from the phraseology of the old law was designed to effect a conformity to its practical operation, and not to change it.

The language of a subsequent section of the Code is, that the trial “ must be removed to the nearest county free from exception.” If the decision of the court upon the question of the change of venue is rovisable, so must its decision upon the other question of the county to which the cause is removed be revisable. The Code prescribes no criteria, by which it is to be determined whether a county is “ free from exception”; and a decision in favor of the revising power of the court in this case would lead to the conclusion, that the decision of the court as to whether a county is free from exception is revisable. The uncertainty and indefiniteness of the Code in *38 this respect is certainly not less than that which characterized the old law. There is as clear an absence of rule for the government of the court in deciding whether a county is free from exception, as in deciding whether a cause should be continued. • 5

From what has been said, the conclusion is attained, that, there is no difference between the law found in Olay’s Digest and in the Code, which effects the question in this case.

In the case of The State v. Brookshire, 2 Ala. 303 , and of The State v. Ware, 10th Ala. 814, the old statutes underwent an examination in this court. In tho former case, the question was before the court by writ of error ; in the latter, it was referred as novel and difficult. In both cases, the revising power of this court was invoked after conviction. It is decided in both cases, that the action of the circuit court, on an application for change of venue, is not revisable. The decision of the former case ■ is placed exclusively on that ground ; in the latter case, the additional reason is assigned that a mandamus would be the only remedy. An examination has not detected any impeachment in udv subsequent case of the authority of those two cases. They must, therefore, be deemed to have been the subsisting recognized judicial expositions of the law of this State at the time of the adoption of the Code. In the framing of the statutes found in the Code, the legislature must be presumed to have had in view the existing law, and the construction placed uponitby this court. By carrying into the Code a law substantially the same with that which previously existed, the legislature must be intended to have had reference to the construction placed on the old law, and the legislative sanction of it may therefore be inferred, — Duramus v. Harrison & Whitman, 26 Ala. This conclusion is corroborated by the fact, patent in the Code itself, that the existing judicial expositions of the law were had in view in its construction, and that many of its provisions are accommodated to them.

There are other arguments persuasive to the conclusion that the question of change of venue is one not revisable. The act contemplates that the court may act, in changing the venue, upon no other evidence than the ex parte affidavit of the accused. The question whether that affidavit may be *39 controverted is not involved in the argument, and is therefore pretermitted. Not only the rights of the accused, but the interests of the State, and the convenience of witnesses, are concerned. When the claim to change of venue is made to rest upon such evidence, — when there is no oral examination, or cross-examination of witnesses, there is no possibility of ascertaining the facts with certainty upon which the court is to act. Besides, the question whether a fair and, impartial trial can be had in a particular county is one which, from its very nature, cannot be subjected to any certain and definite tests, and as to which scarcely a proximate certainty can bo attained. It is conceivable that, in the decision of such a question, determinable by such evidence, the judgment of the court hearing the application would alone be consulted. It is not probable-that the legislature would have made a question, thus susceptible of no definite and reliable determination, the subject of revision in this court.

If, when a change of venue has been'refused, the court should refuse to continue the case, until a decision could be had in this court, the injured party would be unable to avail himself of his remedy by mandamus. The allowance of a continuance is admitted to bo discretionary, and therefore it is impracticable to place the question beyond the control of judicial discretion. If the argument that the statute confers a right entitled to protection in this court, is traced through its consequences, it will' be found that an effectual immunity from the errors of the court below could only be afforded by giving the injured party a right, after conviction, to assign the refusal of his application as error. This would be the necessary result of the argument made.

. I regard the change of venue as one of those matters which must be left'to the control of the judgment and discretion of the presiding judge. Human judgment, and human reason, are fallible; and, no doubt, many hard cases must arise, and injustice may occasionally he done. But the same thing is true of applications for continuances, to file additional pleas, to introduce overlooked testimony after the argument of the cause has commenced, and for now trials. These are all matters which quite as much involve the interests of the parties, as questions of change of venue; and yet, in our system of *40 jurisprudence, they are determinable alone b'y the court before which the cause is pending. . .

The decisions of the courts of our sister States, in reference to the change of venue, are generally based upon statutes. For that reason, they are not referred to as authorities in this opinion ; but none of them are in conflict with the conclusion attained.

The affidavit, with the accompanying papers, before the city court of Mobile in this.case, in my judgment authorizes the conclusion that there is in the county of Mobile and Baldwin a state of public feeling and sentiment such that there is a strong probability that the accused cannot have a fair and impartial trial in either of those counties. The refusal of the mandamus, therefore, is not intended to indicate an approval of the action of the court below.

The application must be dismissed, at the cost of the petitioner.

STONE, J.

I am not able to detect any material distinction between the language employed in the Code (§§ 3608-9-10) and that found in the previous acts of 1819 and 1821. The act of 1819 (Digest, p. 343, § 166) uses the words, “ good and sufficient cause, set forth and duly supported 'by oath or affirmation." The act of 1821 (Ib. p. 480, § 26) was intended to enlarge the time within which the application may be made and entertained ; and, in my opinion, does not restrict or enlarge the grounds on which the court b.elow acts. In the act last stated, the words are, “ for sufficient cause shown”, <&c. The Code declares, that “ the'yapplication must set forth specifically the reasons why”, &c. “ Good and sufficient cause”, “sufficient cause”, and “reasons why”, are, to my comprehension, almost synonyms; when found in the'statutes above quoted. Each of them supposes a ground, a cause, a reason, why the action of the court is invoked ; but neither expression conveys the remotest idea of wbat the cause or reason shall consist of. No fact, or set of facts, are expressed in either of said statutes or the Code, as constituting, when they exist, that cause or reason. Each expression is a conclusion to be drawn from a fact or set of facts, and neither is in itself a fact.

*41 Neither is there anything in the argument predicated on the language of section 3609 of the Code, which requires the affidavit to set forth the reasons why “ the defendant cannot have a fair and impartial trial in the county in which the indictment was found.” Thi§ section expresses the object to be attained — viz., a fair and impartial trial; but whether that can be had in the county in which the indictment was found, is, at most, a conclusion, and never can be a demonstrable fact. Like all other conclusions, it can only be drawn from facts set forth. The legislature having uniformly refrained from prescribing what fact or facts shall be sufficient, it follows that they must be of such a character as reasonably to convince the presiding judge that a fair and impartial trial cannot be had in the county in whicli the indictment was found.

As a test of the correctness of this verbal criticism, let it be supposed that an affidavit for change of venue employs the very language of section 3609 o.f the Code, or of either of the statutes of 1819 and 1821, and it will be, at once, pronounced insufficient. It would contain no fact or evidence upon which the judge could act', and from whicli he would be authorized to draw the desired conclusion. To enable him to do so, under either -the old or the new law, facts must be sworn to; and if they amount to “ good and sufficient cause”, “ sufficient cause”, or “reasons why”.the venue should be changed, it is the duty of the judge to grant the order.

The words in the Code, “ The application must set forth specifically”, &c., do not establish a new rule. The only correct practice which could prevail under the statutes of 1819 and 1821, would require a statement of the facts. In judicial proceedings, all necessary facts should bo stated clearly, distinctly. No particular potency attaches to the word specifically. ■ It is but the antithesis of the word generally, and forbids a too general statement of the grounds for change of venue.

In my opinion, the cases of Brookshire v. The State, 2 Ala. 303 , and Ware v. The State, 10 ib. 814, correctly ascertain the law on this question. This, like many other duties which devolve on the presiding judge during the progress of a suit *42 or prosecution, must be left to his sound and enlightened discretion. It may be abused. So may many other discretionary powers, which are admitted not to be revisable. If this be an evil, the legislature can remedy it.

I do not wish to be understood as sanctioning the action of the court below in this case. All I decide is, that a change of venue cannot be coerced by mandamus.

RICE, C. J.

A defendant in an indictment, whether he be really guilty or innocent, has the right to a fair and impartial trial. The preservation of that right is a matter of public concern, and is demanded by justice and the public welfare. A refusal to render a defendant in an indictment the means provided by law for obtaining a fair and impartial trial, may be as injurious to him as the direct refusal of such a trial would be. Such refusal is a denial of justice, and ought not to be without remedy.

At the adoption of the Code, it was known that the removal of the trial from the county in which the indictment was found had been, and would again be, in some cases, essential to the preservation of the right of the defendant to a fair and impartial trial; and that under the acts of 1819 and 1821, in relation to changes of venue, it was a mere matter of discretion with the judge to whom the application was made, whether he would grant or refuse a change of venue. — Ware v. The State, 10 Ala. 814 . If the legislature had intended that, under the Code, the granting or refusal of a change of venue should continue to he a mere matter of discretion, I think the provisions of the acts of 1819 and 1821, either in words or substance, would merely have been re-enacted in. the Code. But, instead of merely re-enacting in the Code the words or substance of those acts, the legislature went greatly beyond that, and did what never before had been done, to-wit, defined with particularity the cause for which a change of venue should be allowed, and prescribed the mode of proceeding to obtain a change of venue.

In these respects, the provisions of the Code differ essentially from the acts of 1819 and 1821, and from the statutes of those States whose decisions are relied on by a majority of the court in the present case.

*43 The sections of the Code, relating to this subject, are as follow :

“ § 3608. The trial of any person charged with an indictable offence may be removed to another county, on the application of the defendant, duly supported by affidavit.

Ҥ 3609. The application must -set forth specifically the reasons why the defendant cannot have a fair and impartial trial in the county in which the indictment was found, and must be made as early as practicable before the trial, or may be made after conviction, on a new trial granted.

“ § 3610. The trial can be removed'but once, and must be removed to the nearest county free from exception

The acts of 1819 and 1821 did not specify, nor undertake to hint at or define, any cause for - which a change of venue might be allowed. Their provisions were so loose, general, and indefinite in all respects, as to show that it was the intention of the legislature, in adopting them, that the 'matter of a change of venue should rest merely in the discretion of the judges of the primary courts, and that there should be no revision of the exercise of that discretion. Those acts did not contain or prescribe any definite rules for the regulation or control of the exercise of that discretion, and therefore a revision would have been impracticable; for the revising court could not well have decided that the rules or regulations for the exercise of the discretion had been violated, when no such rules or regulations had been established by law.

But, under the Code, the case is entirely different. In it the cause for which a change of venue is to be allowed is clearly defined — to-wit, that the defendant cannot have a fair and impartial trial in the county in which the indictment was found. The mode of proceeding to obtain a change of venue is prescribed; and when a change of venue is granted it is distinctly declared, that the trial “must be removed to the nearest county free from exception.”

It seems to me incredible, that, in a Code of laws prepared with deliberation, and adopted by the legislature for a people who love liberty and justice, three such carefully drawn sections, so strikingly different from the former statutes on the same subject, could have been inserted for no other purpose *44 than merely to permit a judge of a primary court to grant a change of venue’only when he thought fit to grant it!

• It also seems, to me incredible, that the real meaning of these sections of the Code is, that in deciding whether he will allow a change of venue or not, the judge of the primary court acts as a sovereign, who can do no wrong, and is not responsible to any tribunal on earth; but that yet, if, in the plenitude of his power, he should graciously allow a change of venue, then and there his discretion ends, and he “must” send the case to the nearest county free from exception!

Yet, if the opinion of the majority of the court is correct, both the foregoing singular propositions are good law. It is evident that my brethren would not have attained the conclusion which they have attained, if the word “ must” were inserted in lieu of “may” in section 3608. 'They seem to concede, that “ must” is a peremptory word where it occurs; but they insist that “may”, as used in section 3608, is permissive merely: and the argument on their side is, that whilst the word “ may”, where it occurs in a statute in relation to an existing right, is peremptory, yet that word never creates a right.

If .that argument is right, all the authorities are wrong; for they agree that the word “ may” in a statute can create a right, — that, whilst it is permissive merely, where thepublicor third persons have no interest in having it considered as imperative, yet it is peremptory, where it is used in a statute to clothe a public officer with power to do an act, which ought to be done for the sake "of justice, or which concerns the public interest, or the rights of third persons. Conferring the power on the officer to do such act, creates a-right in those for whose benefit the power was conferred; and they may insist on the execution of the power, as a duty, “ though the phraseology of the statute be permissive merely, and not peremptory.” See the cages collécted in Smith’s Commentaries on Statutes, §§ 595 to 604; Ex parte Simonton, 9 Porter’s R. 395; Gould v. Hayes, 19 Ala. 462 .

If the legislature designed, as I think it did, by. the provisions of the Code above quoted, to confer on a defendant in an indictment the right to a change of venue, where he- applies for if in due time and in the prescribed mode, and establishes *45 in legal contemplation tlie fact that be cannot have a fair and impartial trial in the county-where the indictment was found, it was fit to use the word “may” in section 3608. It would have been improper to use the word “ must”, in lieu of “ may”, in that section; because, if that had been done, the section-, interpreted literally, .would have made it the duty of the court to remove the trial to another county, on the mere “ application of the defendant, duly supported by affidavit”, without regard to the sufficiency of the reasons why he could not have a fair trial in the county where the indictment was found. It was no t the design of the Codo to make it the duty of the judge of the primary court to grant a change of venue, merely because there was an “ application” made for it, duly supported by affidavit. But the design was, to. make it his duty to grant it only when the application was made in due time, and in the prescribed mode, and specifically set forth facts and circumstances which, in legal contemplation, established the proposition that a fair and impartial trial cannot bo had by the defendant in the county where the indictment was found. The design was not to deprive the judge of the exercise of, discretion and judgment, nor to arm him with an arbitrary of capricious discretion; but to invest him with a discretion, regulated, as nearly as may be, by general rules, and to be exercised, in granting or refusing such applications, in accordance with justice and the laws of the land.

Whilst I do not deny the exercise of discretion to the judge, I maintain that his discretion must be exercised consistently with the rules of law; and that, if it is not so exercised, we are bound to revise it, and to apply the proper remedy.- — -Durousseau v. The United States, 6 Cranch, 312 to 319. In bills for specific performance of a contract, the . chancellor has a discretion; yet his action on such bills is revisable. In applications for bail, the judge has a discretion; yet his action in that matter is revisable. And I lay it down generally, that “ whenever a suitor is entitled to a ng-Ai, which is withheld from him by the decision of a court,” it cannot, in any just and accurate sense, be called “ a mere matter of discretion”, but is revisable. — Wormeley v. The Commonwealth, 10 Grattan’s R. 658; Etheridge v. Hall, 7 Porter’s R. 47; *46 Ex parte McCrary, 22 Ala. 65 ; Vaughn v. Robinson, 22 ib. 519; Gordon v. Longest, 16 Peters, 97 ; Montague’s case, 10 Grattan, 767; McCauley v. The State, 26 Ala. 135 ; Ned v. The State, 7 Porter’s R. 187; Pulliam v. Owen, 25 Ala. 492 .

■ It bas been asserted, with seeming confidence, that no authority could be found for the position I maintain. I might, with equal confidence, assert that no decision can be found opposed to the views I have advanced, upon any such statute provisions as are contained in our Code. But it is a great mistake to suppose that my view is unsustained by authority. The cases and principles above mentioned clearly sustain my position. The case of Wormeley v. The Commonwealth, 10 Grattan’s R. 658, sustains it; and the supreme court of the United States, in Gordon v. Longest, 16 Peters, 97 , made a decision unanimously, which not only sustains the views above announced by me, but goes further than I go. See, also, the opinion of C. J. Marshall in Durrosseau v. The United States, 6 Cranch, 312 to 319.

According to the construction put upon the Code by my brethren, as I understand it, there is no such thing in Alabama as a right to a change -of venue! If a defendant in an indictment applies, in due time and in the prescribed mode, for a change of venue, and by his application and proof con. clusively shows that he cannot have a fair and impartial trial in the county in which the indictment was found, and that a change of venue is essential to procure for him a trial by “an impartial-jury”, my brethren hold that he has no right to a change of venue — that the judge of the court where the indictment was found may keep him, and force him to be tried in the county in which it is clear he cannot have a trial by “ an impartial jury.” ,

"I cannot assent to the reasoning or conclusion of my brethren. Nor am I in any degree the. more inclined to adopt their conclusion, from the alleged fact that already the judges have powers merely discretionary, by which they may do much injury to the rights of the citizen. If this be so, it is no reason why they should be clothed with any more such power. In theory, our government is one of laws, and not of men; and it ought to be made so in practice.