State v. Minski , 7 Iowa 336 ( 1858 )

"Woodward, J.

The question presented is, whether the defendant is entitled to more than one change of venue from a justice of the peace, although he may file a second affidavit, which is proper in form and substance. The Code did not provide for a change of venue in cases pending before a justice of the peace, although it allowed one in the district court, probably because the legislature considered the right of appeal as a sufficient protection against any injustice which might be done by the inferior tribunal. But the Code provided, in section 1708, that no more than one change should be allowed for causes existing when the first was taken.

The act of the 21th of January, 1853, (acts of 1853, 91), above referred to, provides that, “ In all actions pending before a justice of the peace, either party may have a change of venue, upon filing an affidavit, alleging certain matters.” The cause is then to be sent to the next nearest justice of the peace, “ which justice shall proceed to try the case.” It is certainly true that strong reasons exist against a construction which will allow more than one change, for if two are permitted, why not more than two ? But the reasons which exist against this court restricting the power, are yet more weighty. We have no power to legislate ; and to restrict this right, is legislation, and not a construction of the act. There is no word implying a restriction. We cannot regard as such, the concluding words, “ which said justice shall proceed to try said cause.” These are. but directory, meaning that when he has thus become possessed of the case, he has authority to proceed in it as if it had been commenced before him. When the legislature enacted this law, they had before them the Code, which prohibited a second change in the district court, and it would seem but reasonable to think, that if they intended a restriction, they would in like manner have expressed it.

There is another consideration. In the law relating to a change in the district court, provision is made for the case of the existence of the same objections to other counties, and the discretion as to the county to which the cause shall be sent, is given, whilst in the case of a change before a justice, the law is peremptory, that it shall be sent to the next nearest justice of the peace, and thus locality alone is made to govern the cause, without regard to fitness. And when we return to the reason of the case, it seems to dictate a second change, as well as the first, when the same, or other legal causes exist. If the second justice is of kin, or prejudiced, or a necessary witness, no reason can be given against a change which would not have equal force in the first instance. It is argued that the cause may be sent from officer to officer, around the county. If real objections exist, this is no valid argument, for the party is entitled to a pure tribunal; and to reason upon the thought that the objections are not real, is to suppose perjury in the affiant, upon which basis a decision cannot rest.

We conclude, therefore, that, Avhen properly applied for, a second change must be granted, until the legislature see fit to interpose.

The judgment of the district court is reversed, and cause remanded.