(dissenting).
I regret my inability to agree with the opinion of the court. I think that the alternative writ was improvidently granted, and that it should be dismissed for this reason, if for no other. Judge Biggs has not refused to exercise his judicial function. He has merely (according to the court’s decision) determined erroneously a question of the validity of a statute, following the precedent established by this court in State v. Swanson, 119 Or 522, 250 P 216. In its discussion of the substantive question presented the court relies in part upon the opinion written by Judge Rugg in Crocker v. Justices of the Superior Court, 208 Mass 162, 94 NE 369. If this court had followed with equal fidelity the reasoning of Judge Eugg upon the question of the propriety of issuing a writ of mandamus in that case it would not now make peremptory the alternative writ, but would dismiss the proceeding. Whether mandamus would lie was the first question considered in the Crocker case. The court’s affirmative answer to that question was based upon the fact that the trial court had entered an order with the following recital: “I refuse to hear the parties on the several motions of the defendants that the court order a trial of these indictments in some county other than the county of Suffolk, believing that I have no jurisdiction to enter*438tain or to grant such motions.” (Italics added.) The court first construed this endorsement, saying:
“* * # It is perhaps susceptible of two constructions, one that the court has considered the subject matter, and ruled as matter of law that it has no jurisdiction of such motions, the other that the court has abdicated its province and refused to exercise its judicial function, adding by way of parenthesis that its excuse is a belief that it has no jurisdiction in the premises. Ordinarily we should be loath to adopt the latter construction. But the language appears to be strongly phrased with an evident intent to convey that thought, and an examination of the papers discloses that, as originally entered, an unequivocal ruling of law was made disposing of the motion. If that had stood as the final action of the Superior Court, the only remedy of the defendants would have been by exception or appeal under B. L. c. 219, §§ 32, 34, 35. But it did not so stand, and the action of that court was changed to a statement of declination even to hear the parties. We are constrained therefore to interpret the order as a refusal to act at all upon the motions.” (Italics added.)
The opinion proceeded:
“But one of the ancient offices of this writ was to compel action by lower judicial tribunals respecting matters properly before them and within their jurisdiction. If such courts decline to exercise their judicature or to decide matters pending before them, mandamus has always been regarded as the appropriate means by which to set in motion their jurisdictional power. It lies to compel the performance of whatever appertains to the duty of lower courts, where there has been for any reason a refusal to act. Its agency in cases of this class is confined to setting in motion the judicial activities so that a decision will be reached, but it does not extend to any direction as to what that decision ought to be.”
*439The opinion upon this phase of the case concludes:
“It was the plain duty of the justices of the Superior Court to consider and exercise their judicial faculty upon the subject matter presented by the motions filed in that court, and either overrule them as matter of law or determine whether they ought to be granted. French v. Jones, 191 Mass. 522. Cheney v. Barker, 198 Mass. 356. As we construe the indorsement of the Superior Court upon the motions to be a mere refusal to act, and not the expression of any opinion or ruling, the provisions of B. L. c. 219, §§ 32, 35, authorizing an aggrieved defendant in a criminal case to appeal from a judgment of the Superior Court founded upon matter of law apparent upon the record and to allege exceptions to an opinion, ruling, direction or judgment upon any question of law, do not apply, and there appears to be no other adequate remedy open to the petitioners except this petition.”
It would appear to be plain from the foregoing that, had the justices of the Superior Court in that case proceeded as did the defendant in this case, the Massachusetts court would not have issued the writ of mandamus. The defendant in this case, as the order made by him and set forth in the opinion of the court shows, considered the motion, the statute of this state which limits the right to change of venue to felony cases, and a decision of this court applying it, and concluded that he had no jurisdiction to grant the relief sought. Unlike the Massachusetts Superior Court judge, he heard the parties. This was not the abdication, but the exercise, of the judicial function. The purpose of the writ of mandamus now issued is not to “compel the performance of an act which the law specially enjoins.” § 11-302, OCLA. That act was a judicial determination of the legal question presented by the motion for a change of venue in the criminal ease, and *440it has already been performed. The defendant necessarily held that the statute is constitutional and that was as much an exercise of the judicial function as a decision of this court holding the statute unconstitutional. The court now would control the defendant’s judicial discretion by telling him he should have determined that question in the same way that this court determines it. This we could properly do were the case here on appeal. "We have no right to do it by mandamus. Mandamus is an extraordinary writ, and it is certainly an extraordinary use of it when an appellate court resorts to it in a case where the circuit judge has governed his decision of a legal question presented to him for determination by the clear command of a statute which has been a part of the laws of this state since 1864.
Upon the substantive question involved, I join with my brethren in their devotion to the principle of an individual’s right to a fair and impartial trial in a criminal case, whether the charge be felony or misdemeanor. But I think that we should not lose sight of the fundamental rule that courts do not strike down a legislative act unless its conflict with the constitution is clear beyond a reasonable doubt. The statute here under consideration does not so appear to me. The constitution says nothing of the remedy of change of venue. That was a device originally resorted to, in the exercise of their inherent jurisdiction, by the common law judges of England, as Judge Bugg showed with so much learning in Crocker v. Justices of the Superior Court, supra, and which is today regulated by statute in this country. 22 CJS 300, Criminal Law, § 187. It is a remedy given in aid of the constitutional guarantee, but it is no part of the guarantee. The Crocker case *441does not so decide. No authority, either text writer or judicial decision, that I have seen treats it as a constitutional right. Certainly the opinion of this court refers to no such authority. The repeated encomiums in the cases cited in the court’s opinion upon the constitutional right to trial by a fair and impartial jury are not statements that the remedy of change of venue is such a right. That claim has rarely been made. In the state of Texas the statute authorizing change of venue in a criminal case like ours applies only to felonies. In Patton v. State, 124 Tex Cr 656, 65 SW2d 308, the court sustained the statute as against a challenge to its constitutionality. See, also, Cotton v. State, 32 Tex 614. In the section of 22 CJS previously cited it is said: “Subject to constitutional restrictions, the right to a change of venue in criminal cases and the extent and manner of exercising such right are matters of statutory regulations; the legislature may take away the right altogether * * To the last statement is cited the case of Stamp v. Commonwealth, 200 Ky 133, 253 SW 242, in which the defendant complained of the trial court’s action in overruling his motion for a change of venue. The court called attention to the rule that such an application was addressed to the discretion of the trial court, and said arguendo: “The right to change of venue in a criminal case is one provided by statute, and the Legislature has authority to provide the extent and manner of its exercise. It might take it away altogether, or it could change the method of invoking it.” See, also, 16 CJ 203, Criminal Law, § 305. In Dulany v. The State, 45 Md 99, it was argued by the defendant that the right of removal under a provision of the Maryland constitution was in force when the indictment was filed, that it should govern his case, and that the right was a vested one *442which could not be impaired by any subsequent amendment. The court answered this contention by saying: “A right conferred in regard to the removal of causes does not fall within the class of vested rights. It is hut a remedy given to secure an impartial trial, which at any time may be altered or modified by the proper authority.” (Italics added.) Idaho has a statute similar to ours denying the right to a change of venue in misdemeanor cases. This statute was sustained in the case of State v. Cowen, 29 Ida 783, 162 P 674. The question of constitutionality of the law appears to have been raised, though the court did not expressly pass upon it. The court did, however, issue a writ of prohibition against the district court which had granted a change of venue in a misdemeanor case.
In State v. Backus, 165 Wis 179, 161 NW 759, the court said:
“It seems clear that the right to a change of venue in this state is regulated by statute. This is declared by the decisions in this court on the subject. The effect of such decisions is stated in French v. State, 93 Wis. 335, 67 NW 709:
“ ‘The right to a change of venue depends entirely upon the statute. It is not guaranteed by Const, art. 1, § 7, or any other provision of the Constitution. As the right exists only by virtue of the statute, a change of venue can be had only upon the terms the statute prescribes.’ ”
In State ex rel. Cottrell v. Wofford, 119 Mo 408, 24 SW 1009, the question was whether the defendant in a felony case was entitled to have the case removed to some county other than 13 counties named by him in which he claimed the inhabitants were so prejudiced against him that he could not obtain a fair and impartial trial. In holding against the defendant the court *443referred to the statute which authorized removal “to another circuit, in which such prejudice is not alleged to exist”, and rejected the application as going beyond the terms of the statute properly construed. The court said: “The right to a change of venue is purely statutory, and has no existence outside of the special grant of power to award it.” In State v. Headrick, 149 Mo 396, 51 SW 99, a murder case in which the defendant had failed to comply with a provision of the statute requiring the affidavit of two compurgators in support of an application for a change of venue, the court, in holding that it was not error to deny the application, said: “Again and again we have ruled that the right to a change of venue is purely statutory, and the parties seeking it must comply with the substantial requirements of the statute.”
In this state the statute here in question was applied in the case of State v. Swanson, supra. The opinion of the court says that the following statement made in that case, “a change of venue may not be had except in cases where the crime charged is a felony”, is dictum. I disagree. The question of what is or is not dictum was discussed by Mr. Justice Belt, speaking for the court in Woodard v. Pacific Fruit & Produce Co., 165 Or 250, 256, 106 P2d 1043, 131 ALR 832. He quoted with approval the following from Coombes v. Getz, 217 Cal 320, 18 P2d 939:
“* # * where the court bases its decision on two or more distinct grounds, each ground so specified is, as much as any of the others, one of the grounds, a ruling upon questions involved in the case, and not ‘mere dictum’.”
The opinion in State v. Swanson was written by Mr. Justice Burnett, who was not given to careless utter*444anee. The decision of the question of change of venue was based upon two grounds: one, that no abuse of the discretion of the trial judge in denying the application appeared, and the other that a change of venue may not be had except where the crime charged is a felony. Both grounds were good. Either was sufficient and neither was dictum. Furthermore, the validity of the statute was assumed in Packwood v. State, 24 Or 261, 263, 33 P 674, in an opinion written by Mr. Justice Robert S. Bean.
Suppose the criminal action out of which this proceeding grows were transferred for trial to Harney County, and the plaintiff (defendant in the criminal action) should then conclude that in that county also there existed such a prejudice among the inhabitants against her that she could not obtain a fair and impartial trial. Suppose that she then made application for another change of venue with a sufficient showing in support of it. Would this court say that such application should be granted? I think that the court could do nothing else without abandoning the very basis of its decision, for, if the defendant bas a constitutional right to a change of place of trial from the county where the offense is committed on a showing by affidavit that she is unable to obtain a fair and impartial trial there, she would have the same right in the case which I have assumed. But, as the numerous decisions, both civil and criminal, cited in the annotation in 104 ALB 1494 illustrate, “Provisions expressly limiting the number of changes of venue or from judge have been almost universally considered mandatory in nature, and have been rigidly adhered to, notwithstanding circumstances or reasons submitted which might otherwise clearly justify granting a change.” Idem,., 1495. *445See, also, 56 Am Jur 50, Venue, § 45. I quote further from the ALR. annotation at the page just cited:
“The difficulty of fixing definite rules on the subject arises from the fact that the right, as such, is based upon statute entirely, and that, whatever differences of view may exist with respect to the common-law or inherent right of courts to order changes of venue, it is to the statutes on the subject that litigants must go, upon which their rights must be based, and the terms of which must be followed. As pointed out many times, there was no absolute ‘right’ to such changes at common law, and in the absence of statutory creation the change may be more properly called a ‘privilege.’
$ # # tt $
“Inasmuch as the common-law conception of changes of venue or from judge seems to have been very indefinite and uncertain, not embodying any ‘right’ in the common acceptation of that term, and the whole subject, even under statute, apparently has been considered mainly as a matter of procedure, the constitutionality of statutes relating thereto, upon the objection of actual limitation of number, has seldom been called into question.”
The decision in Crocker v. Justices of the Superior Court, so much relied on by the majority, proceeds upon the inherent power of the Massachusetts courts, as legitimate successors to the jurisdiction exercised by the common law judges of England, to transfer causes from one county to another. No statute limiting the power was involved, and we do not know and need not speculate what the decision would have been had the court been called upon to deal with such a statute. Respecting inherent power, however, we may just as well face the facts of judicial life in Oregon. They are not the same as in Massachusetts and other eastern states having a similar historical background. Under our *446constitution (original Art VII, §4 1 and 9, and amended Art VII, §§ 1 and 2, and statutes enacted pursuant thereto) our circuit courts do not exercise all the inherent powers of the common law courts. See Starr v. Laundry Union, 155 Or 634, 643, 63 P2d 1104. To give only a few illustrations, they do not have the rule-making power, the judges are not permitted to comment on the evidence when instructing juries, and a judge may be disqualified from sitting in a case by a mere motion, which is not essentially different from a peremptory challenge to a juror. By constitutional amendment, moreover, circuit judges in this state have been stripped of their common law jurisdiction to set aside a verdict because it is against the weight of the evidence or for excessive damages. These are facts so well known that I forbear to cite chapter and verse. Judge Rugg, in the Crocker case, referred to eases from other jurisdictions which appeared to be in conflict with his holding, among others Commercial National Bank v. Davidson, 18 Or 57, 65, 66, 22 P 517. Respecting these decisions he said:
“* * * Almost without exception also they are by courts whose history does not extend through a Provincial and Colonial period, and whose jurisdiction is not the inheritance of so close a connection by statutory reference and by the adoption and growth of custom to the court of England as in this Commonwealth. It is perhaps true of the newer States that the powers of courts even of general jurisdiction are more technically dependent upon the terms of statutes than in States where the development of jurisdiction has been more slow and wrought in part only by detailed enactments and in part by reference to the powers of the common law courts of England.”
*447Inherent powers of common law courts such as are exercised by courts of original jurisdiction in Massachusetts and some other states of the union may be in Oregon the substance of things hoped for, but they have little relation to actualities here. I happen to be one of those who would have it otherwise, but I do not believe that the judges of this court have a commission to remold our judicial system nearer to the heart’s desire.
A legislative power, which so far as I know has never been questioned, is the power to prescribe the venue of actions, both civil and criminal. But the legislature has never conferred jurisdiction on any circuit court to try a misdemeanor case in any county save the county in which the offense is committed. From what source, then, would the court derive power to try this case in a different county, should it be transferred? Manifestly, from no valid source. It could be accomplished only by an unjustified assumption of legislative authority.
The privilege of change of venue is an aid — an important one I freely concede — in the fulfillment of the constitutional guarantee of trial by fair and impartial jury, but it is not of the essence of the guarantee, and no court, so far as I am aware, has ever so held. The essence of the guarantee consists in the protection of the defendant in a criminal case against conviction by a prejudiced jury. Courts are zealous to afford the defendant a fair trial, and convictions in which this essential element of due process is wanting are not permitted to stand. It may be asked, why should the defendant in a misdemeanor case be subjected to the risk of a trial in a community whose inhabitants are prejudiced against him? Perhaps, as a matter of *448policy, lie should not be, but in this state the legislature has determined that in criminal cases the privilege of change of venue should be granted only in prosecutions for felony. This the legislature had the right to ordain. A state constitution, unlike the federal constitution, is one of limitation and not a grant of powers, and any act adopted by the legislature, not prohibited by the fundamental law, must be held valid, and this inhibition must expressly or impliedly be made to appear beyond a reasonable doubt. State v. Cochran, 55 Or 157, 179, 104 P 419, 105 P 884. I can find nothing in the enactment today declared unconstitutional which is forbidden by the organic law.