Konold v. Rio Grande W. Ry. Co.

• Decision Date: 11 November 1897
• Docket Number: 859
• Citation: 16 Utah 151,51 P. 256
• Court: Utah Supreme Court
• Parties: RUDOLPH KONOLD, RESPONDENT, v. THE RIO GRANDE WESTERN RY. CO., APPELLANT

51 P. 256

16 Utah 151

RUDOLPH KONOLD, RESPONDENT, v. THE RIO GRANDE WESTERN RY. CO., APPELLANT

No. 859

Supreme Court of Utah

November 11, 1897

Appeal from the Second district court, Weber county. H. H. Rolapp Judge.

Action by Rudolph Konold against the Rio Grande Western Railway Company to recover damages for personal injuries. From a judgment for plaintiff, defendant appeals.

Reversed and remanded.

Bennett Harkness, Howat & Bradley, for appellant.

Richards & Macmillan and A. E. Pratt, for respondent.

The motion for change of venue was properly denied: People v Richie, 12 Utah 193, and citations; Crookton v. C. M. Co., 13 Utah 116.

The statute must be followed in making an application for change of venue: Railway Co. v. Railway Co., 6 How. Prac. 107; Houck v. Lasher, 17 How. Prac. 522; Marsh v. Lowry, 16 How. 42; Hasbrouck v. McAdam, 4 How. Pr. 342; Penniman v. Fuller, 133 N.Y. 442; Elam v. Griffin, 19 Nev. 442; Penny v. Visher, 94 Cal. 323.

Right to change of venue may be waived: Ex parte Whitmore, 9 Utah 445, citing: Mining Co. v. Mfg. Co., 4 Nev. 222; Watts v. White, 13 Cal. 321-4; Sec. 3197 C. L. 1888; R. R. Co. v. McBride, 141 U.S. 127; Graham v. Stowe (Ind. Ty.), 37 S.W. 837; Hearne v. De Young et al. (Cal.), 43 P. 1109; Exeter Nat. Bank v. Orchard (Neb.), 61 N.W. 834; Elliott v. Whitmore, 10 Utah 25, 251; Elam v. Griffin, 19 Nev. 443; citing: Hasbrouck v. McAdams, 4 How. Pr. 342; Houck v. Lasher, 17 How. Pr. 520; Milligan v. Brophy, 2 Code Rep. 118; Estrada v. Orena, 54 Cal. 407; Byrne v. Byrne, 57 Cal. 348; Watkins v. Dregener, 63 Cal. 500; Buck v. City of Eureka, 31 P. 845.

Laying venue in the wrong county is not a jurisdictional effect: Wasson v. Hoffman (Colo.), 36 P. 445; citing: Smith v. People, 2 Colo. App. 99; Fortier v. Board of Co. Comrs., 47 P. 391; Fletcher et al. v. Stowell, 17 Colo. 94; Spaulding et al. v. Kelley (Mich.), 33 N.W. 803; Woodward v. Hanchett, 9 N.W. 469; Territory ex rel. Travelers' Ins. Co. v. Judge of Dist. Court, 38 N.W. 439; West v. Walker, 46 N.W. 820.

BARTCH, J. ZANE, C. J., and MINER, J., concur.

OPINION

BARTCH, J.:

This action was commenced in the district court of Weber county, to recover damages for personal injuries, which the plaintiff claims he sustained through the negligence of the defendant. Before and at the time of trial the defendant challenged the jurisdiction of the court to try the case by motion and affidavit, but the motion was denied, the cause tried, and a verdict and judgment rendered in favor of the plaintiff. This appeal is from the judgment.

It appears from the record that at the time of the injury the plaintiff was a locomotive engineer in the employ of the defendant company, and operating one of its engines to pull a freight train over its line of railroad from Ogden, Utah, to Grand Junction, Colo. While so operating its engine, the boiler exploded, and caused the injury of which the plaintiff complains. The place where the explosion occurred is in Emery county, Utah. Under the facts, the decisive question presented is whether the district court of Weber county had jurisdiction to try the case. Counsel for the appellant contend with much zeal that chapter 17, under the provisions of which the case appears to have been brought in Weber county, and chapter 93, Sess. Laws 1896, are in conflict with the constitution of the state, while counsel for the respondent maintain with equal vigor that the constitution neither in express terms nor by implication provides where civil or criminal actions shall be commenced; that chapters 17 and 93 are not in conflict with that instrument; that the court had jurisdiction; and that the appellant waived any right it might have had to a change of venue by appearing at the trial, and contesting the case after its motion was denied. The provision of the constitution respecting the place of the trial of causes, is found in section 5, art. 8, thereof, and reads as follows: "All civil and criminal business arising in any county must be tried in such county, unless a change of venue be taken, in such cases as may be provided by law." It is argued in behalf of the respondent that the provision does not fix the place for the commencement of actions; that the business referred to is simply the business of the court, and that the word "arising" was used in the sense of "having been commenced;" and, as is urged, that the place where actions shall be commenced was left to legislative enactment. Carried to its legitimate conclusion, this contention means, not only that the legislature has the power to provide that actions, civil and criminal, may be commenced in any county in the state, regardless of where the causes of action arise, but also that the provision of the constitution is merely directory, for otherwise we would have the absurdity of commencing an action in one county, under legislative enactment, only to be compelled to have it transferred to another for trial, under constitutional provision. Such a construction would be a violation of the spirit and terms of the provision itself, as well as of Const. art. 1, § 26, which provides: "The provisions of this constitution are mandatory and prohibitory, unless by express words they are declared to be otherwise." Would counsel undertake to maintain that there are any express words in section 5 which declare its provisions to be otherwise than mandatory or prohibitory? The language is not that the business "may be," but that it "must be, tried" in the county where it arises. Or would counsel seriously contend that, if a crime were committed at the northern border of the state, the prisoner might be indicted in a county on the southern border? Yet such would be a fair inference from their arguments on this branch of the case. No such result was intended by the framers of the constitution. The word "business" was used as a general term to include causes of action and all other business which might arise in any county, and the manifest intention was that all suits, civil and criminal, should be brought, and the cases tried, in the county in which the causes of action arose, unless a change of venue should be taken in such cases as might be provided by law. The last clause of the provision confers upon the legislature discretionary power to provide for a change of venue in cases where that body may deem it necessary, but even in this class of cases the legislature has no power to authorize an action to be brought, in the first instance, in any other county than the one in which the cause arose. Section 5 is mandatory with respect to the matter under investigation, and nothing appears from the context which warrants a different interpretation from that adopted herein. To hold that the word "arising" was used in the sense of "having been commenced," would be to do violence to the true meaning of the provision, and would lead to the absurdity of authorizing the bringing of an action in a county in which it could not be tried. Neither the legislature, by enactment, nor the courts, by judicial construction, may explain away or alter the effect and operation of the organic law of the state. Alike they are bound to give effect to its plain meaning and intendment. The interpretation which we are thus impelled to give is also in harmony with all our notions concerning venue, for when we speak of venue we mean the county or jurisdiction in which the acts are alleged to have occurred, and from which the jury are to come to try the issue. Bouv. Law Dict. It will be seen that this is wholly incompatible with the theory advanced in this case, that the plaintiff has the right to lay the venue in a county other than the one where the supreme law of the state has already said the case must be tried. True, the venue or place of trial of actions is generally left for legislative enactment, and such a provision as the one under consideration is unusual in a constitution; but it was clearly within the power of the constitutional convention to adopt it, and of the people to ratify it. Having done so, it has become the will of the sovereignty, and it is our duty to give it effect.

An examination of the laws of the territory of Utah in force prior to and at the time of the constitutional convention and of the practice of the courts, respecting the place of trial, is quite convincing to the mind that the provision in question was inserted into the constitution deliberately, and for the purpose of limiting the power of the legislature in that regard. The territory was divided into certain judicial districts, each of which comprised a number of counties; and for a long time, and up to a recent date before that convention, court was held in but one county in a district. In the last few years of the territorial government, however, owing to the dissatisfaction of the citizens, court was held in two or more different counties in some of the districts. This state of affairs imposed great hardship and unnecessary expense upon the litigants of counties in which there were no terms of court, because of the long distances which such litigants, their witnesses, and the jurors, for they were drawn from the whole district, were compelled to travel to reach the place of trial. Under the practice then existing, a plaintiff was not even confined to the district where the cause of action arose, but might bring his suit in any district, and have it tried there, unless the defendant demanded a change of venue, and assumed an additional expense to have the case removed to the proper district. All this may be gleaned from the public records, of which we have a right to take notice. That the system was unsatisfactory to the populace was notorious, and is evidenced by the radical changes made by the...