dissenting. Differing with my brother Judges in this case, I will state my reasons for dissenting.
The facts are briefly as follows :
In a civil suit pending in the Circuit Court of Sebastian county, for the Fort Smith district, in which Haglin & Pope were plaintiffs, and Falconer and others were defendants, an order was made by the court, upon the application of the plaintiffs, on the fifth of January, 1881, for change of venue to the Circuit Court of Crawford county.
The papers in the suit, and a’transcript of the record entries, were filed in the office of the clerk of the Circuit Court of Crawford county, on the first of April, 1881, and the next term of that court commenced on the eleventh of the same month.
At that term of the Crawford Circuit Court the defendants in the suit filed a motion to strike the cause from the docket, for want of jurisdiction, because the transmission fees had not been paid to, or arranged with, the clerk of the Circuit Court of Sebastian county for the Fort Smith district, within fifteen days from the date of the order made by that court for the change of venue, as required by the Statute.
In support of the motion, the affidavit of J. C. Stalcup was filed, in which he states, in substance, that he was the deputy Circuit Clerk of Sebastian county, for the Fort Smith district. That his principal, W. J. Fleming, was in charge of the office in the town of Greenwood, in the Greenwood district of said county; and that affiant had charge of the office at Fort Smith, in the Fort Smith district, and attended to all the business of the office. That no one else transacted any of the business. That Fleming occasionally visited the office at Fort Smith, but did not perform any of its duties, nor did he receive any fees, or arrange for them. Affiant remembered the order for change of venue, in the case of Haglin & Pope v. Falconer, and others made on the -fifth of January, 1881. The fees required by law to be paid him were not paid or ai’ranged with him within fifteen days from the date of the order for change of venue. Something was said to him about making out the transcript about three months before he made it, and he was then told that the fees would be ready when the transcript was made. The fees were paid on the twenty-sixth of March, 1881.
On the hearing of the motion the court found, as matter of fact, that the order for the change of venue was made fifth of January, 1881, and that neither the plaintiffs nor defendants had paid or made arrangements with the clerk of the Circuit Court of Sebastian county for the Fort Smith district for the fees allowed him by law for transmitting the papers in said caseto the clerk of the Crawford Circuit Court until the twenty-sixth March, 1881, which was more than fifteen days from the date of the order changing the venue ; and the court declared, as matter, of law, that the fifth section of the Act of January 23, 1875, requiring the transmission fees to be paid or arranged within fifteen days, etc., was mandatory, and the failure to do so rendered the order for change of venue null and void. Wherefore, the court sustained the motion, and ordered the cause stricken from the docket and files of the court for want of jurisdiction.
The plaintiff filed a motion to vacate this order, and to reinstate the cause upon the docket, and to proceed to the trial thereof, which motion the court overruled, and plaintiff took a bill of exceptions, setting out the facts.
Afterwards the plaintiff applied to this court for a mandamus, to compel the Hon. John H. Rogers, as Judge of the Crawford Circuit Court, to reinstate the cause on the docket, and to proceed to the trial thereof. An alternative-writ was awarded, in response to which his Honor, the Circuit Judge, stated no facts, other than such as are shown by the transcript of the record accompanying the petition for mandamus, but adhered to his opinion, that the Statute-in question was mandatory.
The order of the court, striking the cause from the docket and from the files, for want of jurisdiction, whether rightfully or wrongfully there, was in the nature of a final order disposing of the case, which might be reviewed on. appeal or writ of error.
It was the judgment of the Circuit Judge that the order changing the venue was null and void, by reason of the failure of the relators to comply with the condition, in legal effect, on which it was made, under the Statute, and it is submitted, with all due respect for the views of my brother-judges, that the purpose of this case is to control his judgment by mandamus.
Passing over this question of appellate practice, however, and proceeding to the principal question in the case, the first, second and third sections of the Act of 23d January, 1875, provide that any party to a civil action, triable by jury, may obtain a change of venue in the manner, and for the causes indicated, in term time or in vacation. Section 4 provides- that in all cases where an order for a change of venue is granted, the clerk shall make and file with the papers a certified copy of all orders in the case, and upon the payment of the transmission fees, hereinafter provided, shall transmit the papers in the case to the clerk of the court to which the venue is changed, by any safe and convenient mode which he may select, he being responsible for the same, for which he shall receive ten cents per mile to- and from said clerk’s office, to be paid by the party obtaining the order, and to be taxed in the costs.”
Section 5 provides in plain and unambiguous language, that “if the above-mentioned fee is not paid or arranged with the clerk within fifteen days from the granting of said order, the order shall he null and void, provided, that the judge granting the order may extend the time of making such payment, which shall be stated in the order; provided further, that the adverse party, if he chooses, may make such payment. But one order for change of venue shall be granted to the same party in the same action.”
It cannot be supposed that the lawmakers did not understand the meaning of the plain words used in the 5th section: “ The order shall be null and void,” and there is nothing in the whole Act from which it may be inferred that they were intended to be used in a different sense from that which they express.
A party to a civil action has no constitutional right to a change of venue. 'It is a favor which the Legislature may grant or withhold at its pleasure; and it may be granted on such terms and conditions, and under such regulations as the Legislature may think proper to prescribe.
There is nothing hard or unreasonable in the provision of the Act, that the party obtaining the order for change of venue shall pay to, or arrange with, the clerk, the transmission fee within fifteen days from the granting of the order, or it shall be null and void. If he thinks, when he obtains the order, that he will not be able, or it will not be convenient for him • to pay the cost of transmission within the fifteen days, the court is authorized to extend the time, .on his application. The amount to be paid will be easily ascertained when the court names the county to which the venue is to be changed. If he does not ask for extension, and neglects to pay or arrange the fee with the clerk, within the time prescribed by the Act, as in this case, it is his own fault that he forfeits the benefit of the order.
Whether it was wise or unwise for the Legislature to declare that the order should be null and void, upon such failure, is not a question for the courts. It is not their province to make or alter the law, but to administer it as written ; nor can they resort to strained constructions to avoid what they may regard as an inexpedient or rigid provision of an Act.
The rule is well established, that where a law is plain and unambiguous, whether it be expressed in general or limited terms, the Legislature must be intended to mean what it has plainly expressed; and, consequently, no room is left for construction, Eason v. State, 11 Ark., 495.
The fittest course, (says Mr. Dwarris,) in all cases where the intention of the Legislature is brought in question, is to adhere to the words of the statute, construing them according to their nature and import, in the order in which they stand in the Act of Parliament. The judges are not to presume the intentions of the Legislature, but to collect them from the words of the Act, and they have nothing to do with the policy of the laws, etc. lb.
If the Legislature had merely declared that the transmission fee should be paid or arranged within fifteen days, and said nothing more, this might have been treated as directory. But the Act goes further, and declares what shall bo the consequence, or penalty, for failure to comply with its requirements ; and that is, that the order changing the venue shall be null and void ; and this is the test that it was intended to be mandatory. Falconer v. Shores, ante 386.
In Main et al. v. Alexander, 9 Ark., 116, the words of the statute, providing for the registration of mortgages, being plain, the court did not resort to construction, but-followed them. Registration was unknown to the common law. The object of the registration statutes was the protection of subsequent purchasers and creditors. The statute plainly provided that a mortgage properly acknowledged should be a lien on the mortgaged property, from the time it was filed in the recorder’s office, and not before, and so the court said, But, of course, between the parties, the unregistered mortgage was valid, as at common law.
It is true, that where it is necessary to resort to construction, and the intention of the Legislature is clearly manifested by the scope of the Act, particular words may be made to yield to that intention, and some of the cases cited by Brother Eakin illustrate that rule. But, in the section of the Act in question, the lawmakers have plainly said that if the transmission fee be not paid or arranged within the time prescribed, the order changing the venue shall be null and void, and.there is nothing in the whole act from which it may be inferred that they did not mean what they said.
Courts would have saved much trouble and prevented litigation if they had followed the plain words of Statutes, and administered them as written, instead of resorting to strained construction, as they have frequently done, to get rid of provisions which seemed to them rigid or unwise.
It is conceded by my brother Judges that if the fee is not paid or arranged within the timelimited by the act, the clerk; cánnot be compelled thereafter, on tender, to make out and transmit the transcript and papers. And why not, if the act is merely directory, and the order changing the venue does not become null and void on the failure ?
If not null and void on such failure, when does it become so? If some other time or contingency be named, it is not in the Act; the Legislature having prescribed no other event on which the order is to become null and void.
In this case the clerk was not paid the fee, and did not transmit the papers to the Crawford Circuit Court until nearly three months after the order was made. If such neglect and delay did not avoid the order, why should neglect and delay for six months or a year avoid it? If the Statute is to be treated as directory and not mandatory, then it should be left to the sound discretion of the Circuit Court to determine what measure of neglect should deprive the party obtaining the order for change of venue of the benefit of it, and such discretion, unless abused, would not be overruled on appeal or writ of error, and certainly not on mandamus.
The clerk is not alone concerned in a compliance with the Statute. On the expiration of the fifteen days the party against whom the order for change of venue is made has the right to inquire of and be informed by the clerk whether the Statute has been complied with. If not, he may regard the order as avoided, and make no preparation for the trial of the case in the court, to which the venue is changed. If after that the clerk may at any time accept the fee, and transmit the papers, the party relying upon the Statute may be surprised and put to disadvantage.
Under the view of my brother judges, the order may be void or valid, at the will and pleasure of the clerk, where the fee has not been paid or arranged within the time fixed by the Act. The law is not so written.
In my judgment a peremptory mandamus should not be awarded against the Circuit Judge in this case.