October 14, 1924. The opinion of the Court was delivered by This case involves an appeal from an order of Judge DeVore refusing to change the venue from Saluda to Richland county. Judge DeVore's order, for a proper understanding of the case, will be reported. Appellant moved to transfer *Page 461 the case from Saluda to Richland county on six grounds: 1. That under the Code the case must be tried in Richland county; 2. that the act of 1913 impairs the obligation of the contract with the State; 3. that the act of 1923 deprives the defendant of its property without due process of law; 4. that said act denies the defendant the equal protection of the law; 5. that said act is in violation of that provision of our State Constitution prohibiting special legislation in certain cases; 6. that the act of 1923 is an effort on the part of the General Assembly to become the judge in its own case and to assume unto itself judicial powers, in violation of law.
Under the Code, the case must be tried in Richland county, unless the General Assembly had the power to pass the act of 1923, in question. The right to a trial in the county where the defendant resides has been held repeatedly by this Court to be a substantial right. The land is in Richland County; the appellant has no agent in Saluda county.
When the State comes into her own Court to assert a right of property, she is, of course, bound by all the rules established for the administration of justice between individuals. State v. Pacific Guano Co., 22 S.C. 74. The State had, by its Code of Procedure, adopted a general statutory rule as to venue, which has become a part of an ordinary business contract between the State and an individual, and which has vested in such individual, in event of a suit thereon, "a very substantial right" to a trial in his own county; and the Legislature cannot, because the State has a cause of action, pass an act taking the case out of the general rule. We see no reason why this particular case between the parties as to venue, should be different from the general rule. The act is unconstitutional, under State v.Ferri, 111 S.C. 219; 97 S.E., 512. City of Laurens v.Anderson, 75 S.C. 65; 55 S.E., 136; 117 Am. St. Rep., 885; 9 Ann. Cas., 1003. The Court, in State v. Goodwill,33 W. Va., 179, 182; 10 S.E., 285, 286; 6 L.R.A., 621, 623 (25 Am. St. Rep., 863), uses this language: *Page 462
"The rights of every individual must stand or fall by the same rule of law that governs every other member of the body politic under similar circumstances; and every partial or private law which directly proposes to destroy or affect individual rights, or does the same thing by restricting the privileges of certain classes of citizens, and not of others, when there is no public necessity for such discrimination, is unconstitutional and void." Brown v. Haywood, 4 Heisk. (Tenn.), 357.
A general Statute of Tennessee (Code 1858, §§ 2837-2839) provided that cases could be transferred for trial, upon the ground that a fair and impartial trial could not be had in the county in which they were brought. In 1867 a second statute (Laws 1867, c. 36, § 8) was passed (which applied only to pending cases that had been transferred under such general statute), and made it mandatory on the Court to transfer such cases back to the county in which they were originally brought, "upon the affidavits of three unconditional Union men." The question of the constitutionality of this second statute was raised. The Court held that the Act of 1867 was a special act, for the benefit of a few, and not applicable to all suitors alike; that it undertook to apply only to the pending cases and did not effect the existing laws regulating the change of venue in civil cases; that it was therefore a violation of the equal protection clause of the Constitution.
The Court further held that the Statute of 1867 was an assumption of judicial powers in violation of the State Constitution, in that it required the Court to accept the legislative tests as the basis for transferring the cases and sought to take away from the Court the right to decide this question in a judicial way. Houston v. Publishing Co. (Supreme Court of Missouri, sitting en banc in 1913) 249 Mo., 332;155 S.W. 1068.
A statute of Missouri provided that a corporation publishing a libel might be sued in any county in which the *Page 463 paper was circulated. The same general statute provided that an individual publishing a libel could be sued either in the county of his residence or in the county of plaintiff's residence, if found there. The plaintiff sued the defendant in a distant county of the State, in which neither party resided, but in which the paper was circulated, and the defendant contested the constitutionality of the statute permitting this. The Court adopted a former opinion (Julian v. KansasCity Star Co., 209 Mo., 107; 107 S.W. 512), in which it stated:
"If the law applied to all publishers of libels and to all suitors in libel suits alike, there would be no question; but it does not. It gives to one portion of a class advantages not given to the other portion. It heaps disadvantages and inconveniences upon one portion of another class, which are not placed upon the remaining portion. That some advantages are given to suitors against a corporate libeler over suitors against an individual libeler could not be shown more strongly than by this case. Upon what theory would the plaintiff have left his home and friends in Jackson county, except upon the theory that by his construction of this statute he could acquire some advantage, or the defendant be placed at some disadvantage, in another forum."
The exceptions must be sustained, and order appealed from reversed.
MESSRS. JUSTICES COTHRAN and MARION concur.
MR. JUSTICE FRASER: I dissent. It is true that the right of a defendant to be tried in the county of his residence is a substantial right, but it is a right given by statute and may be taken away by statute. The right is not universal, as in actions in personam. Where there are several defendants, the action may be tried in any county in which one of the defendants resides. Where there are several defendants in such cases, the plaintiff may select the county in which he will bring his action. The liability of a defendant to be sued in a county not of his residence, and the right of the *Page 464 plaintiff, within certain limitations, to select the county, is not unknown to the law and unquestioned.
The right to fix the venue is a legislative, and not a judicial, question. It does not appear that a general law could be made applicable. There was only one controversy to be determined. The Legislature certainly had the right to authorize the suit and provide for the prosecution of the suit, and make any provisions it deemed wise, limited only by a constitutional prohibition.
For these reasons I dissent.