Jerry v. Townshend

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 ²⁷⁸ ■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