The Sedalia weekly bazoo. [volume] (Sedalia, Mo.) 187?-1904, 1878-01-01

court might err in denying the rightful
authority Of the Law making depart
ment We would chain that authority
for q long period at our feet. 1t is
better and safer, therefore, that the
judiary il err it must, should not err
in that direction.
If either department Of the govern
menr may slightly overstep the limits
of its constitutional powers. 1t should
be that one whose official life would
soonest end.
Il has the least motive to usurp pow
er not given. and the people can SOON
er relieve themselves Of its mistakes.
Herein is . sufficient reason that
the couits should never strike down q
statute unless its conflict with the con-
stitution is clear. The judiciary ought
to accord to the Legislature Us much
purity Of purpose as it would claim for
itself as honest q desire to obey the
constitution and also high capacity to
judge of its meaning.
Of course the constitution is above
and paramount to all statutes, and
when there is o manifest and clear
conflict between the two, the former
must prevail and the latter fall.
These observations having been
made to manifest the rule by which
We shall be guided in reaching our
conclusion We proceed tn the consider
ati"n Of the point raised.
The act, the constitutionality Of
which is called in question (session
acts 1877, page $50 provides as fol-
lows:
Sect. 1. Hereafter no change Of
venue shall be awarded in any indict-
ment or criminal prosecution in any
circuit or criminal court in either the
following cases:
LIST. When the judge Of the court
in which such case Is pending. is near
Of kin to the defendant by blood OF
marriage.
"a. When the oifense charged is
alleged to have been committed against
the personal property Of said judge Or
come person near of kin to him.
Sd. When the judge is anywise
interested or prejutliced. or shall have
been of counsel in the case or,
18th. When the defendant shall
make and file an affidavit supported
by the affidavit of at least two reputa.
BILE persons, not of kin to or counsel oi
the applicant that the judge Of the
court in which said cause is pending,
will not afford him fair trial ar will
not impar,ially decide his application
for a change Of venue.
Sect. =. Whenever in any cause
an application shall be made for /:
change Of venue for any one or NOR,
Of the reasons above stated, it shall
be lawful TOR such judge to hear such
application, and Immediately there
after. by an order Of record to EN-
power the members Of the bar presen
to the number IF three or more dull,
enrolled and licensed attorneys Of thi'
State. to proceed tn the election Of d
special judge for the trial Of the par
ticular cause pending such election
shall be held BY the clerk Of the court
who. in case Of tie, shall give thu
deciding vote. such special judge i'm
me,liately after his election. take ar
oath to support the constitution Of thu
United States and the State Of Mis-
SOUL. and to hear and try the particu
lar case pending without fear. favo
ar partlsIity. = IL Provide.
; that nothing in this act shall be 50 con
struea ~ tn permit the election Of any
attorney for such special Judge VIII
is near of kin to the defendant o
Judge of said court by bloOd or mar
rage. or where the Offense committed
is alleged tn have been committed
against the person or property Of sai'
attorney or some person. near OF kin
, or when such attorney is in anywis
interested or prejudiced or shall hav
been counsel in the cause.
The clause of the constitution
which. it is claimed, gives warrant TO
,. the above enactment is ss follows
(sec. %. art. g. 1T there be a va
cancy in the office Of Judge Of an,
circuit, or If the Judge De sick. absent
, or from any cause unable tn hold an!
term or part of term in his circuit
may he held by Judge Of any othe
, circuit, and in all such cases VI in any
case where the judge cannot preside
the General Assembly shall make sucl
additional provision for holding cour
as may be found necessary.
Giving to this language its ordinar!
and usual Specification it can scarcel!
be doubted but that it confers ampl'
power on the legislature to pass such I
law rs Is here called in question. Il
order that this may be made NOR
manifest We will consider the section
as it st0oJ in the constitution Of 1865
and note the changes which have beer
. made in it in our present organic law
/ The provision Of the constitution o
1865 upon this subject was as follows
IF there be q vacancy in the Office o
Judge Of any circuit, or if he be sick
|, absent. or from any cause unable L
T hold any term Of court Of any count,
Of his circuit, such term Of court may
be held by q Judge Of any other cir
cult. and at the request Of the judge
Of any circuit. any term Of court in hi
circuit may be held by the judge O
any other circuit"
i This section IL materially different
from the section upon the same subject
incorporated in our present constitu
ton which has been copied herein.
Under the provision made in thu
constitution of 1865 it has been held
bv this cnurt that TIE circuit Judge O