Jerry v. Townshend , 2 Md. 274 ( 1852 )

Mason, J.,

delivered the opinion of the court.

The proceedings in this case were instituted in Prince George’s county court, and removed from that county, upon suggestion and affidavit, to Anne Arundel county court, the -latter county being in a different judicial district from the former.

Upon motion, Anne Arundel county court refused to hear the case, and ordered it to be remanded to Prince George’s county. From this order the present appeal was taken.

The only questions arising out of this appeal are, first, the constitutionality of the act of 1849, chap. 518, under which this removal was made, and secondly, whether the present proceeding be such a “suit or action at law,” as was contemplated by that act.

It is alleged, that the act of 1849 is in contravention of that part of the old constitution embraced in the act of 1804, chap. 55, sec. 2, which requires removals to be made “within the district.” Independent of any legislative or judicial interpretation of this constitutional provision, we find no difficulty in pronouncing it to be in perfect harmony with the act of 1849. We will not pause to discuss the question whether the provision in the constitution, (if it stood alone, unqualified by the proviso,) directing how removals were to be made, is or is not a virtual denial of all power over the subject by the ■legislature. But for the proviso, “that such further remedy-may be provided by law in the premises as the legislature shall from time to time direct and enact,” the argument of the appellee’s counsel on this point would be unanswerable. The court however regard the proviso as designed to confer on the legislature the power to regulate at will the subject of removals. If this be not its meaning, we are at a loss to conjecture what .other purpose it could have had in view. Besides, without referring to particular instances, we can safely assert that both the courts and the legislature have uniformly acted upon the same assumption, and recognised this power as vested in the legislature.

We regard the second and third sections of the act of 1804, chap. 55, as a constitutional provision for the removal of civil and criminal cases, but which, by their provisos, confer upon the legislature the power further to regulate the subject. Until such power is exercised by the legislature, the provisions of the constitution referred to, are to be regarded as the law to govern and limit the courts in all such cases.

The case of the State vs. Dashiell, 6 Har. & John., 268, does not affect the present question. That was a decision denying the right of the legislature to curtail the powers of the court as conferred by the constitution, but is silent upon the subject of the right conferred upon the legislature, by the provisos, to enlarge those powers.

The remaining question is, does the act of 1849 embrace the present case? It is contended, that a petition for freedom is neither “a suit” nor “an action at law.”

All laws for the removal of causes from one vicinage to another, were passed for the purpose of promoting the ends of justice, by getting rid of the influence of some local prejudice which might be supposed to operate detrimentally to the interests and rights of one or the other of the parties to the suit. This is a common law right belonging to our courts, and as such can be exercised by them in all cases, when not modified or controlled by our constitutional or statutory enactments. Price vs. The State, 8 Gill, 310. The reason of the law would apply with equal force to a case like the present, as to one strictly and technically embraced within the term “action at law.” The plaintiff in the present suit, of all the classes in our community, belongs to that which is the most defenceless. Our laws give him a standing in court to prosecute his petition for freedom. An unimpeachable attorney of the court makes oath that he cannot have justice done him in his own county. Under such circumstances, would it not be a mockery of justice to refuse him his application to have the cause removed? Would it not involve a contradiction of terms to say that he shall have the benefit of our courts of justice, but at the same time that his case shall be tried in a county where he cannot have a fair and impartial trial? This view is not only supported by reason and justice, but by an authority directly in point. In the case of Queen vs. Neale, 3 Har. John., 158, the court decide, that although the negro petitioning for freedom, could not himself make the affidavit necessary to lay the foundation for a removal of his case, yet, “upon other proper and competent evidence that an impartial, trial cannot be had in the county in which the petition is pending,” the removal must take place. In other words, a petition for freedom is embraced within the meaning of the terms “suit or action at law.”

Judgment reversed and procedendo awarded.