May 8, 1924. The opinion of the Court was delivered by The defendant, Wilson G. Harvey, was indicted in the Court of General Sessions for Charleston County in two cases — in one for receiving deposits in the Enterprise Bank after knowledge of its insolvency, and in the other for violation *Page 498 of section 296, Criminal Code 1912 (now section 258, Criminal Code 1922). On the call of the first case, a motion for a change of venue — applicable by agreement of counsel to both cases — was heard and granted by the presiding judge, Hon. J. Henry Johnson. From the order granting the change of venue, based upon a finding of fact that the defendant could not obtain a fair and impartial trial in Charleston County, the State appeals.
The only exception, which raises a point that fairly arises upon the record, is thus stated:
"That the Court erred * * * in granting a change of venue in this case from Charleston County to Allendale County; said Charleston County being the only county in the Ninth Circuit, and there being no constitutional or statutory authority allowing such change."
From appellant's argument it appears that the contention intended to be presented by the foregoing exception is identical with that made on Circuit and passed upon in the order of the Circuit Judge, viz. That Section 2, Art. 6, of the Constitution of 1895 provides that, if a change of venue be ordered, "it shall be to a county in the same Judicial Circuit," and since there is no other county in the Ninth Judicial Circuit, there can be no change of venue in these cases. We are satisfied that the conclusion reached by the Circuit Court is correct, and, for the reasons therein stated, the order appealed from must be affirmed. Let the argumentative portion of the order be reported.
We deem it proper to add the following observations: It is contended here that the constitutional provision (Section 2, Art. 6) pre-empts the filed of "change of venue," and that the Circuit Judge was in error in referring his authority to the common-law power of the Court to grant the order. If the foregoing constitutional provision expressly, or by clear implication, restricts the common-law right of litigants to a change of venue, there would, of course, be merit in that contention. But we are clearly of the opinion that Section *Page 499 2, Art. 6, of the Constitution was intended primarily to preserve and guarantee the common-law right to change of venue rather than to limit it. While the proviso therein contained requires that if a change is ordered "it shall be to a county in the same Judicial Circuit," that proviso cannot apply, as the Circuit Court correctly held, where there is no other county in the same Judicial Circuit. If in the case of a one-county Circuit the right to a change of venue is abrogated by virtue of the foregoing constitutional proviso, then the effect of the proviso is to empower the General Assembly, by creating a Judicial Circuit of one county, to deny and destroy the very right the section as a whole was intended to safeguard. If such were the necessary effect of the proviso, it would not only frustrate the primal purpose of Section 2, Art. 6, but would seem clearly to infringe other constitutional guaranties as to impartial trials and as to equal protection of the laws. Hence the act of the General Assembly (Act Feb. 14, 1916 [29 St. at Large, p. 688]) creating the Ninth judicial circuit — heretofore held to be a valid exercise of legislative power in State v. Mappus,107 S.C. 345; 92 S.E., 1053 — may not soundly be construed to deprive litigants in Charleston county of the right to a change of venue in proper cases. In the absence of appropriate and valid legislative regulation, therefore, it was entirely competent for the Circuit Court, in the exercise of the common-law power, recognized and secured — not withdrawn — by Section 2, Art. 6, of the Constitution, to grant the change of venue in the cases at bar.
The judgment of the Circuit Court is affirmed.
MESSRS. JUSTICES WATTS, FRASER and COTHRAN concur. *Page 500