
    The State v. Shaw.
    
      Revised Statutes, section. 550 — Change of venue — Duty of clerk, whether judicial or ministerial — Discretion—Mandamus to compel action by clerk — Right to set up as defense denial of interest of judge.
    
    1. /Where, under section 550 of the Revised Statutes, the required affidavit for a change of venue is filed with the clerk of the court of common pleas, the duties of the clerk in regard to such change of venue are ministerial, and not judicial.
    2. When a party complies with the requirements of section 550, for a change of venue, and the affidavit shows the fact of the interest of the judge of the court in the event of the cause, proceeding, motion, or matter pending before the court, the clerk of the court has no discretion in the case, but he must make the required order and certificate for such a change.
    3. When a proper affidavit has been filed under section 550, should the clerk refuse to act as required by that section, he may be compelled So to act by proceedings in mandamus.
    
      4. When proceedings in mandamus have been brought against a clerk of the court to compel him to do what section 550 requires of such clerk for a change of venue, and which he has refused to do, he can not set up as a defense of his refusal, and have tried in such case, a denial of the fact of affiant’s statement, that the judge of the court was interested in the event of the cause, proceeding, motion, or matter pending before the court; the statute as to him is imperative, and the falsity of such statement would not justify his refusal; and the truth or falsity of the fact may be tried by the parties when the change is made.
    Mandamus.
    .This is an action by the state of Ohio on the relation of Thomas Q. Ashburn against A. B. Shaw, clerk of the court of common pleas of Olermont county. In the petition the plaintiff avers that a cause is pending in that court wherein one Stephen Pike is plaintiff and the Cincinnati and Eastern Railway Company and the relator and others are defendants ; that in that cause a receiver has been appointed, and a sale of the property of the railway company and a marshaling of liens and assets is asked for and resisted, and many issues are contested; that the company is a corporation organized under the laws of Ohio, subsequent to April 9, 1852; that the company is insolvent and its property insufficient to pay its debts, and the statutory liability of its stockholders will, in all probability, be enforced; that Hon. D. W. C. Louden, one of the common pleas judges of the first subdivision, wherein the county of Clermont is situated, has made all the orders, interlocutory and final, in the cause, and all the proceedings in the .cause up to that time had been before him; that on April 8, 1885, pursuant to the statute in such case made and provided, there was filed with the defendant in that cause, an affidavit which is as follows :
    “ Personally appeared before me, a notary public within and for the county and state aforesaid, C. B. Matthews, who, being duly sworn, says in this cause he is counsel for T. Q. Ashburn and R. M. Shoemaker, trustees, parties defendant herein. Affiant further says that D. W. C. Lou-den, judge of the common pleas court within and for the first subdivision of the fifth judicial district of Ohio, is interested in this cause and disqualified to sit herein by reason of being the owner of shares of the capital stock of the defendant, the Cincinnati and Eastern Railway Company. Affiant further says there is no” other judge of the court of common pleas in said subdivision who is not so disqualified, and further affiant saith not.
    C. B. Matthews.”
    Which affidavit was duly attested April 6, 1885; that the allegations of the affidavit are true, and D. W. C. Lou-den is disqualified to sit as judge in the cause, and the matters and things set up in the affidavit first came to the knowledge of the relator, or his counsel, on April 4, 1885; that, after filing the affidavit, the relator requested the defendant to transmit the cause to an adjoining-county as required by law, but the defendant refused, and still refuses, so to do, or to do any thing required by law to carry out the request or transmit the cause; and plaintiff prays that a writ of mandamus may issue commanding the defendant to perform the duties imposed upon him by law in the premises.
    In his answer the defendant admits the most of the averments of the petition'.and that he has wholly refused, and still refuses, to transmit the cause to an adjoining county, but he “ denies that I). W. C. Louden is a stockholder in the Cincinnati and Eastern Railway Company or is interested in any manner or form in the event of the cause or disqualified to sit therein ;” and he denies that there is no other judge in the subdivision not so disqualified, and he denies that the matters and things in the affidavit first came to the knowledge of the relator on April 4, 1885. And for an additional answer, the defendant avers that in the cause pending in the court of common pleas “there have been filed the affidavits of "William Mansfield and M. Jamieson, who, upon oath, say of their own knowledge, that Hon. I). W. C. Louden is not a stockholder in said railway company nor interested in the event of said cause, nor disqualified to sit therein;” and “that Hon. A. T. Cowen, one of the judges of said court, is not interested in the event of said cause.”
    To the defense the plaintiff demurs. The affidavits were filed in this case, and an affidavit of D. W. C. Lou-den is filed in which he says a certificate of stock in said railway company was sent to him, and that he “ did not return it to the company.”
    C. JB. Matthews, Bellamy Storer, and B. A. Harrison, for relator.
    We submit that sections 550, 551, and 552 of the Revised Statutes, prior to their amendment February 7, 1885 (82 Ohio L. 24), control this application. See Revised Statutes, section 79.
    If.the act of 1885 does apply, no mere alteration of phraseology or omission of words should be construed as working any change in meaning. Ash v. Ash, 9 Ohio St. 387; Van Camp v. Board of Education, 9 Ohio St. 418; Conger v. Barker, 11 Ohio St. 13; State v. Comm’rs, 36 Ohio St. 330.
    Provisions by statute for a change of venue are to be liberally contraed. Hilliard v. Beattie, 58 N. H. 112.
    The ownership of stock in a corporation which is a party disqualifies a judge from sitting. Gregory v. C. C. & C. R. Co., 4 Ohio St. 675. And we call attention to the following leading cases, in which all the authorities, and the reasons for holding such a disqualification, are considered. Dimes v. The Canal Props., 3 Ho. Lords’ Gas. 759; Washington Ins. Co. v. Price, 1 Hopk. Ch. (N. Y.) 2; Newcome v. Light, 58 Tex. 141; Peninsular Ry. Co. v. Howard, 28 Mich. 25.
    No case will be found which allows any discretion to be exercised by a ministerial officer in complying with a demand to remove a cause. Wherever any discretion has been held to exist it has been in cases where the statute either made it discretionary with the court, or by plain implication left the question to be heard and decided by a court on the weight of the evidence. Cook v. Baxter, 27 Ark. 480; Coit v. Elliott, Judge, 28 Ark. 294; Snow, Ex parte, 28 Ark. 471; Cook v. Loftin, 31 Ark. 567; People v. Flagley, 22 Cal. 35; Livermore v. Brundage, 64 Cal. 299; Clark v. The People, 2 Scam. 117; McGoon v. Little, 2 Gilman (Ill.) 42; Commercial Ins. Co. v. Mehlman, 48 Ill. 316; Knickerbocker Ins. Co. v. Tolman, 80 Ill. 106; Seehawer v. Milwaukee, 39 Wis. 409; Carpenter v. Shepardson, 43 Wis. 406; Bachmann v. Milwaukee, 47 Wis. 437; Smith v. State, 1 Kan. 371, 390, 391; Godbe v. McCormick, 1 Montana, 105 ; New Mexico v. Kelly, 2 N. M. 300; Allerton v. Eldridge, 56 Iowa, 712; Bannigan v. Railway Co., 58 Iowa., 671; Corpenny v. City of Sedalia, 57 Mo. 88; Hughes v. The People, 5 Col. 450.
    The leading case of Witter v. Taylor, 7 Ind. 110, has been followed in that state by a long line of authorities. 
      Shaw v. Hamilton, 10 Ind. 182; Shattuck v. Myers, 13 Ind. 48; Mershon v. The State, 44 Ind. 598; Fisk v. Turnpike Co., 54 Ind. 479; Muggins v. The State, 66 Ind. 350; Krutz v. Howard, 70 Ind. 174; Shoemaker v. Smith, 74 Ind. 76.
    
      Ramsey, Maxwell § Matthews and Hoadly, Johnson $• Colston, for defendant, filed no brief.
   Follett, J.

The relator is a party of record in the case of Stephen Fike against the Cincinnati and Eastern Railway Company, and Thomas Q. Ashburn and others. The defendant, A. B. Shaw, is the clerk of the court where that suit was pending, and where relator filed the affidavit of C. B. Matthews, his counsel in that suit, for a change of venue.

The statute governing relator’s rights and the defendant’s duties as such clerk, is section 550 of the Revised Statutes, and is as follows : “ In every instance where a judge of the court of common pleas is interested in the event of a cause, proceeding, motion, or matter pending before the court in any county of his district, ... by reason of interest, on affidavit of either party to such cause, proceeding, motion, or matter pending, or his counsel, showing the fact of such interest, the clerk of the court shall enter upon the docket thereof an order directing that the papers and all matters belonging to the cause, motion, proceeding, or matter pending, in which such judge of the court of common pleas . . . is interested, . . . shall be transmitted . . . if in the court of common pleas, then to the clerk of the court of common pleas of an adjoining county of another subdivision, where practicable, of the same district: where not, then to an adjoining county of another district,” etc. When the affidavit is not one “showing the fact of such interest,” “.in the event of a cause, proceeding, motion, or matter pending before the court,” the clerk is not required to act. The State v. Winget, 37 Ohio St. 153.

It is not claimed that the affidavit here is defective in form or statement, if the allegations were true; but the defendant denies the truth of some of the allegations of the affidavit, and thus seeks to justify his refusal to do what is required of him to change the venue.

“ The interest which requires the removal of a cause, is a pecuniary interest of the judge in the event or result of the trial.” The State v. Winget, supra, 153.

That such an interest should disqualify a judge to act in such a case, is fully established. Washington Ins. Co. v. Price, 1 Hopk. Ch. 2; Livermore v. Brundage, 64 Cal. 299 ; Gregory v. C. C. & C. R. R. Co., 4 Ohio St. 675.

And when the affidavit of a party or of his counsel shows “ the fact of such interest,” has the clerk of the court any judicial or quasi judicial duties in the matter? He has such duties only as are given by statute. Generally he records the doings of the court or judge; but here the judge must not act, and the statute requires that “the clerk of the court shall enter upon the docket thereof an order directing that the papers and all matters belonging to the cause . . . shall be transmitted to the clerk of the court of common pleas of an adjoining county,” etc. There is nothing here for the clerk to try; and there is no reason why he should hear testimony in the matter, or receive counter affidavits. The clerk, on receiving the affidavit of the party or of the counsel of the party — no other one can make the necessary affidavit under the statute — must enter the order to transfer the papers and the cause.

In Witter v. Taylor, 7 Ind. 110, the court say: “ If the affidavit for a change of venue, in a civil cause, is in substantial conformity to the statute, the duty of the court to grant it is imperative. Counter affidavits are not admissible; nor can the personal knowledge of the judge in relation to the facts sworn to, be allowed to affect the application.” In that state the statute was: “ The court, in term, or the judge, in vacation, may change the venue of any civil action, upon the application of either party, made upon affidavit, showing one or more of the following causes, viz.,” etc. There the application under the statute must be supported by the affidavit of the party in person. And in Shattuck v. Myers, 13 Ind. 46, the court say upon a proper application: “ The court has no discretion,” but that, “ the affidavit of his attorney will not compel the change,” but that “ it is within the sound, legal discretion of the court to grant or refuse a change of venue upon application and affidavit by a person not a party to the record.” If it is imperative upon the court, a fortiori, it will be imperative upon the clerk.

In Shoemaker v. Smith, 74 Ind. 71, the court held that a rule of court can not impair this right. The statute must govern. See also, Herbert v. Beathard, 26 Kan. 746.

In Allerton v. Eldridge, 56 Iowa, 709, Adams, C. J., said: “We may say further that, if we could see no reason whatever in the nature of things for a change in this case, we should hesitate, in view of the imperative language of the statute, to hold that a change should not be granted where the statute providing for a change had been fully complied with.” See also, Corpenny v. Sedalia, 57 Mo. 88; Taylor v. Gardiner, 11 R. I. 182.

In Knickerbocker Ins. Co. v. Tolman, 80 Ill. 106, the court say: “ The fact that the party seeking the change may have no merits, does not change the rule. The right to a change, upon complying with the statute, is secured to him by an express provision of the statute, and the courts have no power to repeal, modify, or mitigate any requirement of the statute.” Mr. Justice Walker said : “ Inasmuch as the granting of a change of venue in civil cases is not discretionary, the court below erred in not allowing the motion. This is the requirement of the statute, and such has been the uniform construction given to it.” There “ the application must be made by a party to the record, and the petition must be verified by his affidavit.” See Crowell v. Maughs, 2 Gilm. (Ill.) 422.

But the defendant claims that the judge was not a stockholder of that company, and that the affidavit is false. That question the parties to that cause may try after the transfer is made. The defendant can not rightly set up in this case, to defeat the transfer of that case, a new fact that defeats the transfer, and that he had no right at first to consider. If this could be done by the clerk of the court, he would possess a dangerous power to obstruct the causes in that court, and he might burden this court. We have regarded only so much of the pleadings in this case as the parties could rightly set up; and the majority of the court think the defendant has shown no reason why he has not done what section 550 requires him as clerk to do in the case, and the demurrer is sustained.

The defendant claims that the peremptory writ of mandamus should not issue in this ease, and refers to The State v. Commissioners, 26 Kan. 419, where it is held: “The writ of mandamus is not wholly a writ of right, but .lies to a considerable extent within the sound judicial discretion of the court where the application is made, and no court should allow a writ of mandamus to compel a technical compliance with the letter of the law where such compliance will violate the spirit of the law.” We agree with that, and also ask a careful reading of another statute, section 6741 of the Revised Statutes, which provides: “ Mandamus is a writ issued in the name of the state, to an inferior tribunal, a corporation, board, or person, commanding the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station.” This defendant is a person on whom the law specially enjoins as a duty, resulting from his office, the performance of an act which he refuses to perform. Mandamus is the appropriate remedy to compel clerks of court to perform their official duties, and there is no other adequate and specific means of relief. See High Ex. Rem., §§ 17, 24, 80-82, and cases cited.

Mandamus does not control discretion, but compels official action.

The defendant has refused to perform a specific official act, and a

Peremptory writ will issue in accordance with the prayer of the petition.

McIlvaine, C. J., and Owen, J., dissent from the fourth proposition of the syllabus.  