
    State ex rel. v. McCarty, Judge.
    
      Trial by jury — Of accused person — Change of venue — Section 7268, Revised Statutes.
    
    The guaranty contained in section ten of the bill of rights, that an accused person shall have a “trial by an'impartial jury of the county or district in which the offense is alleged to have been committed,” does not require that the trial shall take placewithin the judicial district where the indictment is found; and under section 7263, Revised Statutes, the court in which an indictment is returned may, on motion of the accused, if an impartial jury cannot be had there, order that he be tried in any adjoining county.
    (Decided March 12, 1895.)
    
      Mandamus. On the 8th day of March, 1894, one Sarah Snell was indicted for a felony in Wayne county.
    She moved in the court of common pleas for a change of venue, and the court, Ending that she could not have a fair and impartial trial in Wayne county, sustained her motion and ordered that she he tried in the county of Stark, which adjoins Wayne, but is not in the same judicial district. The original indictment, and certified transcript of the proceedings were sent to the clerk of the court. of common pleas of Stark county. The defendant, Hon. Thomas T. McCarty, who is a judge of the court of common pleas holding the term of said court in Stark county, being of the opinion that his court is without jurisdiction to try the accused, refuses to proceed.
    The relator prays for a writ of mandamus commanding him as such judge to proceed with the trial of the said cause.
    
      J. K. Richards, Attorney-General, Ross W. Funck, Prosecuting Attorney, Aquila Wiley and A. D. Metz, for the relator.
    Section 5032 of the Revised Statutes, which provides for a change of venue, is in the following language: “When it appears to the court that a fair and impartial trial cannot be had in the county where the suit is pending, the court may change the place of trial to some adjoining county.” It is contended by the respondent that this statute should be construed as though it read “some adjoining county of the same common pleas district.” This is not permissible by the rules governing the construction of statutes. The language of the statute is clear, intelligible, and free from ambiguity. In such ease the statute is not open to construction. Its meaning must he derived from the language of the statute itself. Blackstone, voL 1, marginal page 60, note 12; Wilcox v. Nolze, 34 Ohio St., 520.
    It is contended that this act, so far as it authorized a change of venue to a county not in the same common pleas judicial district, is unconstitutional, as being in conflict with section 10, article I, of the constitution. As a general rule one part of an act will not be held unconstitutional, and another part constitutional, unless the respective parts are independent of each other. They must stand or fall together. State v. Com. of Perry Co., 5 Ohio St., 497; Monroe v. Collins, 17 Ohio St., 665.
    The rule for construction of constitutions is precisely the same as that for the construction of statutes to which we have heretofore adverted. If the word district, as used in this clause, means common pleas judicial district, then it is optional with the legislature to provide in the first instance for the trial of the accused by a jury of the common pleas judicial district, whether an impartial jury could be obtained in the county in which the offense is alleged to have been committed or not. In other words, the constitution does not secure to a citizen the right to be tried by a jury of the county in which the offense is alleged to have been committed. It only secures to him the right to be tried either by such jury or by a jury of the common pleas judicial district to which such county belongs, at the option of the legislature.
    The language of this clause in section 10 of article I of the constitution of 1851, is identical with that of a clause in section 11 of article VIII of the constitution of 1802. Under the constitution of 1802 there were no common pleas judicial districts, so it could have been susceptible to no such construction under that constitution.
    The language of this clause in the constitution of 1802 was no doubt taken, with some modification from the constitution of the United States. Article VI of the'constitution of the United States provides that “the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district, wherein the crime shall have been committed, which district shall have been previously ascertained by law.”
    In the constitution of 1802, it was contemplated, that in many cases it would be necessary for the accused to be taken, for trial, from the county in which the offense was alleged to have been committed, hence the disjunctive conjunction was used. Take the case of Columbiana county with the counties of Stark and "Wayne attached. If the copulative conjunction had been used, it would have been necessary to have assembled at the county seat of Columbiana three juries, one from Wayne, for the trial "of cases arising in Wayne, one from Stark, for the trial of cases arising from Stark, and one from Columbiana, for the trial of cases arising- in that county; but under the constitution of 1802 as it was framed, it was sufficient if the jury was either from the county or district. Thus, a Columbiana county jury was competent to try eases arising in either Stark or Wayne.
    From the foregoing we conclude,
    1st. That the word district, as used in the constitution of 1802, did not mean common pleas judicial district, for there were none under that constitution, or under any statute passed under said constitution.
    
      2d. That it meant a county with such territory, organized or unorganized, .as the legislature might attach thereto for judicial purposes.
    3d. That it has no application whatever tocases ■ in which it might he found impossible to obtain a fair and impartial jury, in the county or district in which the offense was alleged to have been committed.
    4th. ■ That the legislature was entirely untrammeled by any constitutional provision, as to where the trial should be held or where the jury should come from, in case a fair and. impartial jury could not be obtained, either in the county or the district, in which the offense was alleged to have been committed. If this was the force, effect and meaning of this provision as it stood in the constitution of 1802, we know of no rule of construction that would give it any different force and effect, when incorporated into the constitution of 1851.
    The constitution of 1851 contemplated as indicated in section 13, of article XI, that new counties might thereafter be organized. This constitution does not, as did that of 1802, confer upon the court criminal jurisdiction. That .is left wholly to the legislature. It has also the power to create courts other than those provided for expressly in the constitution of 1851. It is therefore within the power of the legislature to entirely separate the criminal from the civil practice, and to create criminal districts, if it sees fit, comprising more than one county, and to establish courts therein, having exclusive criminal jurisdiction. People ex rel. v. Dayton, Auditor, 55 N. Y., 367.
    
      A. A. Thayer, for respondent.
    It is contended by counsel for the state that the court of common pleas of one county has the power to remove a case therefrom to an adjoining-county, although in another judicial district, and section 7263 of the Revised Statutes is cited in support thereof. In order to give this contention any force, this section must he so construed as to permit the - removal of cases to any adjoining-county, whereas, the plain language of the statute is that such removals shall be to some adjoining-county. This section should be construed in a restricted sense, so as to permit removals .from one county in a district to adjoining counties therein, and so as to give full force to the phrase county or district, in the bill of rights. Const. 1851, article I, section 10.
    The provision in the bill of rights, doubtless, arose out of a somewhat similar provision in the sixth amendment to the constitution of the United States. The phrase county or district is used in the constitution of Ohio, instead of state and district in the federal amendment. The clause, ‘ ‘which district shall have been previously ascertained by law” is omitted in our bi.ll of rights.
    Both counties and judicial districts in the territory of Ohio had been established prior to, and at the time of, the adoption of the constitution of 1802, and were recognized thereby, and that, for this reason, it was not proper to omit the federal provision “which district shall have been previously ascertained by law.” The rule is well established that political organizations, existing at the adoption of a constitution and recognized by name in such instrument, are not organized thereby, but have force by reason of such recognition. Gass v. Dillon, 2 Ohio St., 607. It is true, by the constitution of 1802, it was provided that the state should be divided into common pleas circuits, instead of districts. Article III, section 3. But this was the name which had been given to the general court for the five districts, under the territorial laws. Chase, Statutes, p. 306. And doubtless, the circuits named in the constitution of 1802, were interchangeable with the districts theretofore existing, and thereafter created in pursuance of the constitution of 1851. •
    By the constitution of 1851 the state was divided into nine common pleas judicial districts. Article I, section 10. And these are the only judicial districts named in the constitution. This court has already decided that the same word used more than once in the same act shall be presumed to have been used each time in the same sense, unless a different intention appears therein. Rhodes v. Weldy, 46 Ohio St., 234; Sutherland on Stat. Const., sections 219, 239, 253, 255.
    It was held by this court at its last term, that common pleas judicial districts, as provided by the constitution, must be bounded by county lines, and hence cannot be smaller than a county. State v. Jacobi, 52 Ohio St., 66. It must follow that the term district, as used in the bill of rights, contemplated a greater district than a county. If the two were synonymous, then the phrase or district would be entirely superfluous. The meaning would have been much clearer by the use of the word county standing alone. The terms county or district, as used in the clause, must both be held to have a meaning ánd a use. In re Elder v. Ford, 46 Wis., 548; Wheeler v. State, 24 Wis., 53; State v. Krupp, 40 Kans., 149; Oliver et al. v. State, 11 Neb., 1. The question has been once raised, but perhaps not decided in this court. State v. McGehan, 27 Ohio St., 280. How can it be said that the statute is appropriate legislation to enforce the hill of rights, if it is in conflict therewith? State v. Myers, 21 Law Bull., 61.
    But, it is said, these are rights conferred on the accused, which may be waived, and are not jurisdictional. We contend that, either taken with, or independent of the rights of the accused, this provision is jurisdictional, and that, not only is it the duty of the court to allow to the accused a trial in the county or district, but that the court, in its own right, and in the per for manee of its statutory duties, has the power and right to refuse an unlawful jurisdiction, which, without its consent, is thrust upon it. The language used in the bill of rights is,that the accused shall be allowed an impartial jury of the county or district. Article I, section 10.
    The settled meaning of the term “to allow”is, “to grant, give, admit, afford, or yield.” Here is a duty placed on the court. The first step must be taken by the court, and this certainly concerns the jurisdiction. Common pleas judg’es are only officers of their several judicial districts, and have no extra territorial powers. Article IV, sections 3, 10, 12. District Court Case, 34 Ohio St., 431.
    The judges of the court of common pleas are judges of their respective districts. Railroad Co. v. Sloan, 31 Ohio St., 2, 13.
    Further, the constitution provides that the jurisdiction of the courts of common pleas, and of the judges thereof, shall be fixed by law. Article IV, section 4. ' Revised Statutes, sections 457, 467, 469.
    It would be strange, indeed, if, after such labor has been apportioned, a judge of one district, having no power or jurisdiction in this, could, instead of changing’ the venue of his causes to counties in his own. district, remove, them to this, and the court of this district have no power to refuse to try them. If this should be held to be the law there would be nothing’ to prevent a removal from one remote county to another in the state.
   Shauck, J.

The order of the court of common pleas of Wayne county, as counsel agree, is within the terms of section 7263, Revised Statutes: “All criminal cases shall be tried in the county where the offense was committed, unless it appear to the court, by affidavits, that a fair and impartial trial cannot be had therein; in which case the court shall direct that the person accused be tried in some adjoining county.”

But the contention of counsel for the defendant is that the natural import of the terms of the statute must be restricted, to the end that it may not conflict with section 10, article I, of the constitution which guarantees to “the party accused * * a speedy public trial by an impartial jury of the county or district in which the offense is alleged to have been committed.” The rule of interpretation suggested is familiar; and its application here is said to require that the statute be so read that the place of trial shall be changed to an adjoining county of the judicial district. The arg-ument is that as the word ‘ ‘district’ ’ is used in this section of the bill of rights with reference to the place where a judicial inquiry shall be conducted, it should be understood as meaning one of the judicial districts for whose creation the constitution makes provision. The force and aptness of this reasoning are apparent; and it seems to have controlled the decisions in some of the cases cited from other states. Although the question is, so far as we know, not settled by any adjudication in this state, we are aware that in, at least, some of the districts, the practice has been • in such cases to order that the accused be tried in an adjoining county of the same district; though this course may have been prompted by a desire to avoid the question which we are now required to determine.

Whether the considerations stated are entitled to controlling effect must be determined by opposing considerations suggested by other provisions of the constitution, the purpose for which this guaranty was inserted in the bill of rights and the generally understood meaning of its terms at the time of its adoption.

Section 3 of article IV ordains that “the state shall be divided into nine common pleas districts, of which the county of Hamilton shall constitute one; and section 12 of article XI, makingthe apportionment for judicial purposes, that: “The county of Hamilton shall constitute the first district, which shall not be subdivided.” We cannot adopt the view of counsel for the defendant, unless we are prepared’ also to adopt the view which these provisions would make inevitable, that the trial of one accused in Hamilton county cannot be changed to any other county. In this connection, and in the view that the law providing for a change of venue is of a general nature, the provision of section 26, article II, is significant: “All lavys of a general nature shall have a uniform operation throughout the stale.” A law of this nature can have no operation anywhere, unless there be such interpretation of this clause in the bill of rights as will permit it to operate everywhere.

The source of jurisdiction to try an accused person is found in other provisions of the constitution. This clause guarantees to him the personal right indicated. The substance of that right is a trial before an impartial jury of the county in which the offense is alleged to have been committed, or so near thereto that he may have the legitimate benefit of his own reputation and that of his witnesses, and that he may, with as much certainty and as little expense and inconvenience as are practicable, secure the attendance of his witnesses. For the preservation of that right the accessibility of the place of trial is highly important. Whether the boundary of a judicial district intervenes, is of no importance whatever. Weyrich v. The People, 89 Ill., 90.

That the term “district” is not used in the sense of judicial district is indicated by other provisions of the instrument. Although section 12, article XI, apportions the state for judicial purposes, the general assembly is authorized to erect new counties and attach them to a convenient district, and by section 15, article IV, it is vested with continuing power to change the districts, or to increase or diminish the number of the districts. It is not, therefore, by irrevocable provision of the constitution, but by the acquiescence of the legislature, that the counties of Wayne and Stark are in different judicial districts. If the general assembly should so exercise the powers thus expressly granted as to place these counties in the same judicial district, the ground of the defendant’s contention would disappear. The insubstantial character of the objection to the jurisdiction of the court of common pleas of Stark county appears when we remember that there can be no denial of the authority of the general assembly to provide for the trial there, and there is really nothing more than a doubt as to the form in which the undoubted power has been exercised.

There is no constitutional right to a trial in an adjoining county, unless it is implied in the use of the word “district.” If that should be construed to mean the judicial district, it would result that the place of trial might be changed to a remote county of the district, whereby the right guaranteed would be seriously impaired. The provision of the statute, that in the case contemplated the place of trial shall be changed to an adjoining county, is a legislative interpretation of the constitutional guaranty. That interpretation regards the district as the vicinity; and it is to be commended unless inflexible rules forbid the preservation of the guaranteed right with its highest value.

It would perhaps be unprofitable, if it were practicable, to seek the meaning of this term beyond the bill of rights in the constitution of 1802, whence it was immediately derived, when incorporated into the present constitution. In the former constitution the term could not have had the meaning now claimed for it by counsel for the defendant, since the judicial district, eo nomine, was unknown in that instrument. When the language was so derived from the former constitution, it had for thirty-five years received the same practicable interpretation which is now questioned. By the seventeenth section of the act entitled “An act pointing out the mode of trying criminals,” passed February 26, 1816, the general assembly provided for the enforcement of the constitutional guaranty, by a change of the place of trial to an “adjoining* county,” if a proper jury could not be had in that in which the offense was committed. "We adopt a familiar and salutary rule of interpretation when we hold that these words were adopted into the present constitution, with the same meaning' they were known to have in that from which they were derived.

To myself this conclusion, reached after a careful consideration of the reasons involved, is not less satisfactory because at variance with tentative views previously entertained.

Peremptory writ allowed.  