Hoyer v. Colton

Robinson, J., delivered the opinion of the Court. Section 8, Article 4 of the Constitution, provides, that “The Judge or Judges of any Court of this State, except the Court of Appeals, shall order ■and direct the Record of proceedings in any suit or action, issue or petition, presentment or indictment, pending in such Court, to be transmitted to some other Court, (and of a different Circuit, if the party applying shall so elect,) having jurisdiction in such cases, whenever any party to -such cause, or tlm counsel of any party, shall make a suggestion in writing, supported by the affidavit of such party, or his counsel, or other proper evidence, that the party cannot have a fair or impartial trial in the Court in which such suit or action, issue or petition, presentment or indictment is pending* * * * “and the General Assembly shall make such modifications of existing laws as may be necessary to regulate and give force to this provision.” The obvious purpose of this provision was to secure to every one a fair and impartial trial, by getting rid of the influence of local feeling and prejudice; and whenever the privilege has come under consideration, it has been liberally construed. State vs. Dashiell, 6 H. & J., 268 ; Negro Jerry vs. Townshend, 2 Md., 278; Griffin vs. Leslie, 20 Md., 15 . However much the right thus conferred may have been, or may hereafter be abused, the exercise of it has been considered so essential to the proper administration of justice as to be made the subject of constitutional provision in every Constitution adopted in this State since 1851; and in no previous Constitution, has it been more securely protected than in the present Constitution.

Whilst under the Constitution of' 1864, it was necessary for the party making ⁴²³ tbe application for removal to satisfy the Court by proper evidence that a fair and impartial trial could not be had in the Court in which the cause was pending, the present Constitution confers the right in every case, civil or criminal, upon the mere suggestion and affidavit of the party. No discretion is vested in the Court; and the only power conferred upon the Legislature is “ to make such modifications of existing laws as may be necessary to regulate and give force to this provision.” The nature and extent of the power thus conferred, was considered by this Court in Price, et al. vs. Nesbitt, 29 Md., 264 , and it was held that the Legislature might enlarge but could not in any manner impair or restrain the right. Now the Act of 1874, chap. 94, provides that in all civil cases, unless the party upon whose suggestion the cause has been removed, shall pay to the clerk the costs of the record within sixty days after the passage of the order of removal, and shall also cause the record to be transmitted within the same period, the Court inav upon application strike out the order of removal and reinstate the case upon the trial docket. The question in this appeal, is as to the power of the Legislature to prescribe such conditions, and this depends upon whether the conditions are to he considered as a restraint upon the constitutional right of removal?

It can hardly be pretended that an Act of the Legislature requiring a party to pay the costs of the record as a condition precedent to the exercise of the right of removal, can be considered in any sense as an enlargement of the right itself. On the contrary, such a condition in many cases might defeat the exercise o’f the right altogether. It may be said, that it is but reasonable and proper, that a party making application for the removal of a cause ought to pay to