Ex parte Banks. two decisions were alike treated as permissive words, susceptible of an imperative construction when a right is conferred, and the public or third persons have a right de jure that the power should be exercised. The two old statutes and the Code are different in this: one of the former says, that the change of venue shall be granted for "sufficient cause", and the other for "good and sufficient cause"; while the Code prescribes the inability of the defendant to have a fair and impartial trial in the county as the cause for a change of venue. The Code states the. cause for which the venue may be changed; the old law leaves it undefined. The old law leaves undetermined the cause, and the sufficiency of the proof; the Code determines the cause, but leaves the sufficiency of the proof that the cause exists to be determined by the judge. The difference in this respect affords a just argument to prove that the margin left for the judgment of the court below is narrowed by the Code, but not that it is taken away. When the cause for a change of venue is prescribed, there remains still a large margin for the exercise of the judgment and discretion of the court. Even before the adoption of the Code, the practice in the circuit courts had fixed the improbability that a fair and impartial trial could be had in the county as the cause for a change of venue; so that there is a correspondence between the practical effect of the old law, and the language of the new. It is fairly inferrible, therefore, that the departure in this respect from the phraseology of the old law was designed to effect a conformity to its practical operation, and not to change it. The language of a subsequent section of the Code is, that the trial" must be removed to the nearest county free from exception." If the decision of the court upon the question of the change of venue is revisable, so must its decision upon the other question of the county to which the cause is removed be revisable. The Code prescribes no criteria, by which it is to be determined whether a county is "free from exception"; and a decision in favor of the revising power of the court in this case would lead to the conclusion, that the decision of the court as to whether a county is free from exception is revisable. The uncertainty and indefiniteness of the Code in Ex parte Banks. this respect is certainly not less than that which characterized the old law. There is as clear an absence of rule for the government of the court in deciding whether a county is free from exception, as in deciding whether a cause should be continued. From what has been said, the conclusion is attained, that there is no difference between the law found in Clay's Digest and in the Code, which effects the question in this case. In the case of The State v. Brookshire, 2 Ala. 303, and of The State v. Ware, 10th Ala. 814, the old statutes underwent an examination in this court. In the former case, the question was before the court by writ of error; in the latter, it was referred as novel and difficult. In both cases, the revising power of this court was invoked after conviction. It is decided in both cases, that the action of the circuit court, on an application for change of venue, is not revisable. The decision of the former case is placed exclusively on that ground; in the latter case, the additional reason is assigned that a mandamus would be the only remedy. An examination has not detected any impeachment in any subsequent case of the authority of those two cases. They must, therefore, be deemed to have been the subsisting recognized judicial expositions of the law of this State at the time of the adoption of the Code. In the framing of the statutes found in the Code, the legislature must be presumed to have had in view the existing law, and the construction placed upon it by this court. By carrying into the Code a law substantially the same with that which previously existed, the legislature must be intended to have had reference to the construction placed on the old law, and the legislative sanction of it may therefore be inferred.-Duramus v. Harrison & Whitman, 26 Ala. This conclusion is corroborated by the fact, patent in the Code itself, that the existing judicial expositions of the law were had in view in its construction, and that many of its provisions are accommodated to them. There are other arguments persuasive to the conclusion that the question of change of venue is one not revisable. The act contemplates that the court may act, in changing the venue, upon no other evidence than the ex parte affidavit of the accused. The question whether that affidavit may be Ex parte Banks. controverted is not involved in the argument, and is therefore pretermitted. Not only the rights of the accused, but the interests of the State, and the convenience of witnesses, are concerned. When the claim to change of venue is made to rest upon such evidence,-when there is no oral examination, or cross-examination of witnesses, there is no possibility of ascertaining the facts with certainty upon which the court is to act. Besides, the question whether a fair and impartial trial can be had in a particular county is one which, from its very nature, cannot be subjected to any certain and definite tests, and as to which scarcely a proximate certainty can be attained. It is conceivable that, in the decision of such a question, determinable by such evidence, the judgment of the court hearing the application would alone be consulted. It is not probable that the legislature would have made a question, thus susceptible of no definite and reliable determination, the subject of revision in this court. If, when a change of venue has been refused, the court should refuse to continue the case, until a decision could be had in this court, the injured party would be unable to avail himself of his remedy by mandamus. The allowance of a continuance is admitted to be discretionary, and therefore it is impracticable to place the question beyond the control of judicial discretion. If the argument that the statute confers a right entitled to protection in this court, is traced through its consequences, it will be found that an effectual immunity from the errors of the court below could only be afforded by giving the injured party a right, after conviction, to assign the refusal of his application as error. This would be the necessary result of the argument made. I regard the change of venue as one of those matters which must be left to the control of the judgment and discretion of the presiding judge. Human judgment, and human reason, are fallible; and, no doubt, many hard cases must arise, and injustice may occasionally be done. But the same thing is true of applications for continuances, to file additional pleas, to introduce overlooked testimony after the argument of the cause has commenced, and for new trials. These are all matters which quite as much involve the interests of the parties, as questions of change of venue; and yet, in our system of Ex parte Banks. jurisprudence, they are determinable alone by the court before. which the cause is pending. The decisions of the courts of our sister States, in reference to the change of venue, are generally based upon statutes. For that reason, they are not referred to as authorities in this opinion; but none of them are in conflict with the conclusion attained. The affidavit, with the accompanying papers, before the city court of Mobile in this case, in my judgment authorizes the conclusion that there is in the county of Mobile and Baldwin a state of public feeling and sentiment such that there is a strong probability that the accused cannot have a fair and impartial trial in either of those counties. The refusal of the mandamus, therefore, is not intended to indicate an approval of the action of the court below. The application must be dismissed, at the cost of the petitioner. STONE, J.-I am not able to detect any material distinction between the language employed in the Code (§§ 3608–9– 10) and that found in the previous acts of 1819 and 1821. The act of 1819 (Digest, p. 343, § 166) uses the words, "good and sufficient cause, set forth and duly supported by oath or affirmation." The act of 1821 (Ib. p. 480, § 26) was intended to enlarge the time within which the application may be made and entertained; and, in my opinion, does not restrict or enlarge the grounds on which the court below acts. In the act last stated, the words are, "for sufficient cause shown", &c. The Code declares, that "the application must set forth specifically the reasons why", &c. "Good and sufficient cause", "sufficient cause", and "reasons why", are, to my comprehension, almost synonyms, when found in the statutes above quoted. Each of them supposes a ground, a cause, a reason, why the action of the court is invoked; but neither expression conveys the remotest idea of what the cause or reason shall consist of. No fact, or set of facts, are expressed in either of said statutes or the Code, as constituting, when they exist, that cause or reason. Each expression is a conclusion to be drawn from a fact or set of facts, and neither is in itself a fact. Ex parte Banks. Neither is there anything in the argument predicated on the language of section 3609 of the Code, which requires the affidavit to set forth the reasons why "the defendant cannot have a fair and impartial trial in the county in which the indictment was found." This section expresses the object to be attained-viz., a fair and impartial trial; but whether that can be had in the county in which the indictment was found, is, at most, a conclusion, and never can be a demonstrable fact. Like all other conclusions, it can only be drawn from facts set forth. The legislature having uniformly refrained from prescribing what fact or facts shall be sufficient, it follows that they must be of such a character as reasonably to convince the presiding judge that a fair and impartial trial cannot be had in the county in which the indictment was found. As a test of the correctness of this verbal criticism, let it be supposed that an affidavit for change of venue employs the very language of section 3609 of the Code, or of either of the statutes of 1819 and 1821, and it will be, at once, pronounced insufficient. It would contain no fact or evidence upon which the judge could act, and from which he would be authorized to draw the desired conclusion. To enable him to do so, under either the old or the new law, facts must be sworn to; and if they amount to "good and sufficient cause", "sufficient cause", or "reasons why".the venue should be changed, it is the duty of the judge to grant the order. The words in the Code, "The application must set forth specifically", &c., do not establish a new rule. The only correct practice which could prevail under the statutes of 1819 and 1821, would require a statement of the facts. In judicial proceedings, all necessary facts should be stated clearly, distinctly. No particular potency attaches to the word specifically. It is but the antithesis of the word generally, and forbids a too general statement of the grounds for change of venue. In my opinion, the cases of Brookshire v. The State, 2 Ala. 303, and Ware v. The State, 10 ib. 814, correctly ascertain the law on this question. This, like many other duties which devolve on the presiding judge during the progress of a suit |