Two facts became apparent from an examination of this authority: First. The propriety or validity of the legislation was not discussed or questioned; indeed, it could not well be questioned in a jurisdiction where, as in England, the legislative power is supreme. Second. The act under which the order for the change of venue was made simply enlarged the vicinage from the county of the city to the county at large within which such city was located. Such an act, even in this country, and under the most stringent constitutional provisions, would probably be held valid. An act which provided that the trial of an indictment in the recorder's court of the city of Detroit might be removed to the circuit court for the county of Wayne would, in essence, be identical with the English act.

In the second case, People v. Vermilyea, supra, the court said:

"There is no doubt of our power, upon a proper case, to send a criminal cause down for trial to a county other than that in which the venue is laid. Crimes, however, are essentially local. Hence the venue, as such, cannot be changed. The place of trial must be altered by suggestion, and on clear proof that the cause cannot be tried in the county where the offense is laid, with safety to the rights of the defendant. The present motion rests on a single affidavit of one of the defendants; and, independent of the opposing affidavit, I cannot say I am satisfied there is any danger in a New York jury."

No authority is cited and none is necessary; for it is apparent that the application was made by the accused, and not by the prosecution.

In the Webb Case, supra, 1 Chitty's Criminal Law, 201 (Am. Ed. of 1836), is also cited. Upon examination of the text, we find it supported by a reference to the Nottingham Case discussed supra.

Our Constitution provides, "The right of trial by jury shall remain." While to these words some of the other States have added words such as "of the vicinage," "of the county," "of the county or district," such words do not enlarge or better define the constitutional safeguard

of the individual; they merely express in words what is implied by the language of our Constitution. Watt v. People, 126 Ill. 9 (18 N. E. 340, 1 L. R. A. 403); Flint River Steamboat Co. v. Foster, 5 Ga. 194 (48 Am. Dec. 258); 12 Enc. Pl. & Prac. p. 289, and notes.

While I believe that the decision in People v. Peterson, supra, was erroneous, and should not be permitted to stand as the law of this State, I desire to point out that in that case there had been two trials before the order for a change of venue was made. In the case of People v. Fuhrmann, 103 Mich. 593 (61 N. W. 865), an attempt was made to secure a jury in the county where the crime was alleged to have been committed. No jury could be obtained, after all available jurors in the county had been summoned. Whatever may be said about the authority of these two decisions, it is apparent that the facts in each case afforded a cogent argument for the rule adopted.

But no such exigency is presented by the case at bar. Here we have a prosecution launched against relators in a jurisdiction containing a population of half a million. No trial (resulting in a disagreement) has been had. There has not been even an attempt made to secure a fair and impartial jury. The claim, made on behalf of the prosecution, that such a jury cannot be obtained in the city of Detroit I believe to be unwarranted and unsound. It would be a sad commentary upon the decadence of modern civilization, if it were true.

If the rule in the Peterson Case is to remain the law of this State, I am of opinion that we should modify our holding in Lyle v. Cass Circuit Judge, 157 Mich. 33 (121 N. W. 306), to this extent: That, where the order for a change of venue is made upon the petition of the prosecution, and against the protest of the respondent, the discretion of the trial judge making the order may be reviewed upon mandamus.

To remit these petitioners to their remedy upon appeal would, in my opinion, fall far short of justice. In the

meantime they will have been compelled to go to trial in a foreign jurisdiction, under the disabilities pointed out. Even if, after conviction, a reversal be had upon appeal, the mischief will have been done, the wrong suffered. Were such a review to be had upon this record, I have no hesitation in saying that the order in question should be set aside as being a gross abuse of discretion.

The writ should issue.

MCALVAY, J., concurred with BROOKE, J.

case.

MOORE, J. It is a well-settled rule of law that the language used in an opinion must be read in connection with the facts and circumstances disclosed by the record in the given case. As shown by the opinion of Mr. Justice BROOKE, the cases of People v. Peterson, 93 Mich. 27 (52 N. W. 1039), People v. Fuhrmann, 103 Mich. 593 (61 N. W. 865), and Lyle v. Cass Circuit Judge, 157 Mich. 33 (121 N. W. 306), are distinguishable from the instant In the cases where a change of venue was ordered on the application of the people, one of two things was shown: Either that there had been a disagreement of the jury after a trial was had, or that there were not a sufficient number of persons remaining in the county, eligible to act as jurors, from whom a jury could be procured. This showing having been made, it would follow logically that, if there was to be a trial at all which should result in a verdict, a change of venue would be necessary. Otherwise the accused, however guilty, might never be convicted.

In the case of Lyle v. Cass Circuit Judge, supra, the application for a change of venue was made by the respondent. In denying this application, the respondent was not deprived of the right of trial by a jury of the vicinage; and until it was demonstrated that he could not have a fair trial by such a jury he had no just cause of complaint.

In the instant case no trial has been had; indeed, no effort has been made to procure a jury; nor has it been

shown there are not plenty of persons in the city of Detroit, eligible as jurors, from whom an impartial jury might be obtained.

The right of the respondent to have his case tried by a jury of the vicinity was discussed at great length in Swart v. Kimball, 43 Mich. 443 (5 N. W. 635), from which opinion Justice BROOKE, in his opinion, has quoted at length, making it unnecessary to repeat here what was stated by him. We do not know of any modification of the rule as thus stated.

We do not understand that in all cases, simply because it is said the lower court has exercised a discretion, the writ of mandamus will be refused. If no showing had been made on the part of the people, would it be claimed that in granting a change of venue the trial judge had exercised a discretion which could not be reviewed by mandamus? What was, in fact, done was but little better from a legal standpoint. No effort was made to test out the question of whether a jury could be procured, as was done in the cases to which reference has already been made. Until some effort of that kind has been made, and the effort has resulted in a failure, the trial judge is not authorized to change the venue against the protest of the accused. If he does so act, instead of exercising a legal discretion, the act becomes an arbitrary one.

In Michigan Mut. Fire Ins. Co. v. Wayne Circuit Judge, 112 Mich. 270 (70 N. W. 582), the following language was used:

"In view of the growing frequency of applications for mandamus asking this court to review the action of subordinate courts, resulting in overloading this court with work which does not finally dispose of the case, it becomes important to decide whether, in a situation like the one at bar, the writ should issue. We are aware that the decisions of this court have not been uniform, and for that reason it is difficult to lay down a rigid rule which shall be followed in all cases. As the writ is a discretionary one, perhaps it is not desirable that an inflexible rule should be established. We think, however, a review of

the decisions will indicate, in a general way, when the writ should, and when it should not, issue. It is a general rule that the writ will not lie where the law has provided another remedy. It is said a writ of mandamus issues because there is no other adequate remedy, and justice and good government require a redress of the wrong. A court will not be required by this writ to take any action when another remedy is provided. It will not take the place of an appeal or a writ of error. Merrill, Mand. §§ 201, 209. To this rule an exception is made if the slowness of ordinary legal forms is likely to produce such immediate injury or mischief as ought to be prevented. Merrill, Mand. § 198; People v. Cass Circuit Judge, 39 Mich. 410; Talbot Paving Co. v. Detroit Common Council, 91 Mich. 262 (51 N. W. 933)."

In the instant case, if the order of the trial judge changing the venue stands, the respondents have been deprived of the important right of trial by a jury of the vicinage, without a showing that such a jury could not be procured; and before any other remedy can be invoked the mischief may be done. Under such circumstances, if the writ of mandamus may not issue, the accused is without remedy.

For these reasons, I think the writ should issue.

BIRD, J. For reasons which are historical, the rule that one charged with crime has a right to be tried by a jury of the vicinage has taken a fast hold on our system of jurisprudence. The rule itself is not in dispute; only its exceptions are questioned. The idea behind the rule is a "fair and impartial trial.” Now and then, in the past, conditions have arisen which made a fair and impartial trial impossible, where the rule was rigidly enforced. The inefficiency of the rule under such conditions gave rise to exceptions to the rule. To meet this exigency, the legislature passed Act No. 157 of the Laws of 1851, providing, in substance, that when these extraordinary conditions arose a change of venue might be granted by the circuit court. The statute reads in part: