Ex parte Jones , 49 Ark. 110 ( 1886 )

Smith, J.

Jones applied to the Pulaski Chancery Court for the writ of habeas corpus, alleging that he was restrained of his liberty by the Si.'eriff of Cleveland county, under process upon an indictment which charged him with the murder of one Barrett; that said murder, if committed at all, was done in Cleveland county, in the year 1886,- on the east side of the Saline river; that after said indictment against petitioner had been returned into court the Legislature, by an act approved April 4, 1887, had divided said county into two judicial districts — the Eastern and Western — between which said river was the dividing line ; that it was provided in and by said act that courts of justice should be held, for the Eastern District at Toledo, and for the Western District at Kingsland, and the authority and jurisdiction of each of said courts were expressly limited to the territory respectively embraced therein; but no time was fixed by that act or by any other law for holding the Circuit Court in the Eastern District, by reason whereof it was impossible to try petitioner’s case.

As an excuse for applying to the Chancellor, it was alleged that the Circuit Judge of the Tenth Circuit, which includes Cleveland county, was absent from the State. But the writ was refused.

It is immaterial whether the allegation, that Barrett was killed east of the river be true or false; because, in either event, according to the view we have taken, the petitioner has no forum for his trial, if the act is allowed to stand.

statute: ¡ngjústicef^abeas corpus. At the date of the passage of this act, Toledo was the county seat of Cleveland county, and the Circuit Court for the county was to be held there on the second Monday in March and September of each year. See act of March 24,. 1885, session acts 1885, p. 127. The act of April 4, 1887, recognizes Toledo as'the county seat and directs the Circuit Court for the Eastern District of the county to be held there, “ as now provided by law, except as hereafter provided.” Section xo of the same act fixes the terms of the Circuit Court of the Western District at Kingsland, also on the second Monday of March and September. Now it is a physical impossibility for the Circuit Judge to be in two different places at the same time. And according to the theory of the constitution of our courts, as explained in State v. Williams, 48 Ark., 227, two Circuit Courts cannot be going forward in the same circuit at one and the same time. And as the act of 1887 is the latest expression of the legislative will, it repeals the act of 1885, fixing the time for holding the Circuit Court in Cleveland county, unless the later act is unconstitutional. Parker v. Sanders, 46 Ark., 229. It would follow, then, that no provision has been made for holding a Circuit Court in the Eastern District of Cleveland county; and the petitioner has been deprived of his constitutional right to a speedy trial by the jury of the county in which the crime was committed. Constitution of 1874, art. 2, sec. 10. For the act does not authorize a transfer of causes now pending in Cleveland Circuit Court to the Western District, except upon a petition for change of venue; but expressly provides (section 11) that they shall remain for adjudication and be tried at Toledo.

So sacred is this right of speedy trial that, under certain circumstances, the failure of the State, for three terms, to bring the accused to trial, entitles him to a discharge. Mansf. Dig., secs. 2191-4; Stewart v. State, 13 Ark., 720.

What then shall be said of a statute that practically abolishes or discontinues, for one-half of a county, the only court which can try felonies ? It is a suspension for an indefinite period of the administration of justice. No grand juries can be impanelled to inquire of offenses committed in Cleveland county east of the Saline river; and no person now under indictment for offenses committed in any part of Cleveland county can be brought to trial. This is such a denial of justice as to render the act inoperative and void. The unconstitutionality of a law does not depend so much upon the intention of the Legislature as upon the effect of the law.

The act also provides for separate County and Probate Courts to be held in the two districts, and virtually erects two counties under the name of districts, requiring all of their financial affairs to be kept distinct. Of these provisions we are not called upon in this case to express any opinion. However, in order to prevent future complications, we have no hesitation in saying that in our judgment the act is indivisible and cannot take effect, even in part. Its purpose is to accomplish a single object — the establishment of two judicial districts in one county. And that purpose having failed in respect to the Circuit Court, the whole act necessarily falls to the ground. The provision for separate Circuit Courts is so interwoven with the remainder of the act, that it can not be presumed the Legislature would have enacted one portion without the other. Cooley’s Constitutional Lim, (*177 et seq.); Bittle v. Stewart, 34 Ark., 224.

The Circuit Court for the county of Cleveland will be held at the place and time designated by law without regard to the supposed act of April 4, 1887. There is, consequently, no impediment to the petitioner’s trial.

Affirmed.