LAMM, J. —
This is an original proceeding in prohibition.
Such preliminary and intermediate steps were had in the cause that, when finally submitted, it stood on an implied concession that allegations of fact well pleaded in the petition were true. Respondent’s counsel make a statement of the case admirably fair and colorless, full and brief. We borrow and use it for the purposes of this opinion, viz.:
“The relator, A. Judah, was indicted in the criminal court of Jackson county, Missouri, at the September term, 1907, for running a Sunday theater in Kansas City, Missouri. Afterwards, on or about October 24-th, 1907, by affidavit of himself and two witnesses, relator disqualified the Hon. William H. Wallace, the judge of the criminal court to try said cause. After-wards on November 30th, the Jackson County Criminal Court made an order, setting the case down for trial January 7th, 1908, before the Hon. James L. Fort of Stoddard county, Missouri, Judge of the Twenty-second Judicial Circuit in this State, and notified and requested Judge Fort to appear and try the said cause in the Jackson County Criminal Court.
[523]*523“The relator asks in.the petition for prohibition herein, that Judge Port he prohibited from trying the said cause in the criminal court, on the sole ground that the Hon. William H. Wallace, judge of the criminal court, was by the Missouri legislative act, approved March 19th, 1907, not then allowed to call in Judge Port or any judge of another circuit under the general statute (Sec. 2597) and was not then alldwed to call in any judge to try said cause except the Hon. E. E. Porterfield, judge of Division No. 7 of the circuit court of Jackson county, Missouri, at Kansas City.”
Referring to the foregoing statement, we shall assume that counsel mean by “section 2597” of the Revised Statutes, a new section of that number substituted for the old section, repealed in 1905 (Laws 1905, p. 131). We shall assume also that counsel, when they say that Judge Wallace can only call in Judge Porter-field, judge of Division No. 7 of the circuit court of Jackson county, Missouri, mean to say that he can only call in the judge of Division No. 7, whomsoever he may he at the time.
It serves a wholesome purpose — a judicial purpose —to say that whatever fervor or color crept into the ease in any of its preliminaries or in oral argument, has been cast aside, and it is now put to us by briefs presenting merely a serene and dignified legal question relating to a change of venue statute, to be determined dispassionately by the aid of right reason alone — to be settled, moreover, on the theory that vexed questions relating to the “sacredness of the natural right to labor,” on the one hand, and the sacredness of the Christian Sabbath of our fathers, on the other, are not in the case at bar at all and, hence, may be safely left to take care of themselves when a concrete case involving questions of law relating to either reaches this court in due course. When such vexed questions reach this court they will receive in the future as they have [524]*524in the past a judicial consideration suited to their solemn character — such consideration as is due from the highest court of a free and Christian people on questions which (to borrow the animated language of Sir John Culpepper in the Long Parliament) “sup in our cup, dip in our dish and sit by our fire.” The ease itself, the parties litigant, the learned counsel on both sides and this court are to be felicitated not a little on this happy statu,s quo; for, in the forum, Reason and Passion are an ill-assorted pair of handmaidens.
It will do to say, also, that the issue here comes close home to the administration of the whole body of the criminal law in Jackson county. This is so, because, until the question shall be settled as to whether a change of venue goes from Judge Wallace of Division One'to Judge Porterfield of Division Two of that court, or vice-versa, there is left a wide open and anxious proposition — a proposition which may be injected by astuteness and desire into the trials of indictments on every grade of offense known to the criminal law in a great city. Therefore, it becomes a question that appeals, sua sponte, to the final and controlling source of judicial power; and,- therefore, it ought to be settled out of hand and not left to be determined this way or that, nisi, subject to the hazard of being determined contrary to our views, and thus lodge reversible error in criminal trials in that county at the beck and call of defendants who seek changes of venue from Division One of that court. This, is no fanciful dilemma. A change of venue is no unusual incident in a case. A change of venue in a criminal case, where the trial judge is basing his ruling on the unconstitutionality of the statute relating to the change of venue, would become an ordinary incident; for such ruling is an implied invitation to inject the question into the record to the end that an exception may be saved and a judgment against defendant be reversed, if, peradventure, [525]*525an appellate court finally sustains the constitutionality of the law. Such considerations as these have appealed powerfully to us to exercise our discretion in taking-cognizance of this case. A stitch in time saves nine, an ounce of prevention is better than a pound of cure, in law as in everyday life.
I. It cannot be doubted that (subject to a judicial discretion to be exercised in issuing all discretionary writs) the writ of prohibition may go to confine a court within the limits of its jurisdiction whether such court has no jurisdiction at all or is exercising powers in excess of its rightful jurisdiction. So much is elementary. The writ may go whenever judicial functions are assumed, not rightfully belonging to the person or court assuming them. Generally speaking, it is available to keep a court within the limits of its power in any particular matter as well as to prevent the excess of jurisdiction in a cause not given to it by law. [State ex rel. v. Foster, Judge, 187 Mo. 590; State ex rel. v. Elkin et al., County Judges, 130 Mo. 90; State ex rel. v. Eby, Judge, 170 Mo. 497; State ex rel. v. Bradley, Judge, 193 Mo. 33; State ex rel. v. Fort, Judge, 178 Mo. 518.]
II. As presently seen, the constitutionality of certain provisions of the Act of 1907 (Laws 1907, p. 209), creating Division Two of the criminal court of Jackson county and providing for the distribution of cases between the two divisions, for changes of venue from one to the other, etc., is assailed. But before we set out to consider that question, we may profitably remind ourselves of certain fundamental and unbending rules controlling courts in the determination of a question of that grave character. For it must not be forgotten that those judges of solidest parts in wisdom — i. the crowned oracles of the law — have set bounds to them[526]*526selves and to judicial authority in determining the constitutionality óf a law. Courts will not shrink from the discharge of a constitutional duty in declaring a legislative act unconstitutional in given conditions. But at the same time they should not go out of their way to declare -it unconstitutional. They will not, except under an imperative call, incroach upon legislative power. There is a strong presumption in favor of the constitutionality of an act of the law-maker. Therefore, it is a settled and cardinal principle that an act of the legislature is not to be declared void unless the violation of the Constitution is so palpable, so manifest, as to leave no room for reasonable doubt. The question obviously becomes one of high delicacy and discriminating use of judicial power.
As said by a great judge, Chief Justice Shaw (in Wellington et al., Petitioners, 16 Pick. l. c. - 96): “Courts will approach the question with great caution, examine it in every possible aspect; and ponder upon it as long as deliberation and patient attention can throw any new light on the subject, and never declare a statute void, unless the nullity and invalidity of the act are placed, in their judgment, beyond reasonable doubt.” [State ex rel. v. McIntosh, 205 Mo. l. c. 602; State v. Layton, 160 Mo. l. c. 490; State ex rel. v. Warner, 197 Mo. l. c. 656.] It is by such guiding lights, and not otherwise, that we must determine the constitutionality of the provisions of the Act of 1907.
III. In effect, two views aré taken, arguendo, of' the Act of 1907. If we entertain either, the preliminary rule should be quashed and the peremptory writ denied. One is that certain provisions of that act are within the interdiction of those provisions of the Constitution directed against special legislation. The other may be said to be that the act may be held constitutional and yet it may be so construed that the general [527]*527statute relating to changes of venue is left operative in Jackson county, in spite of the provisions of the law of 1907. It may be conceded that if section 2597, as enacted in 1905, is held operative in Jackson county to the exclusion of the Act of 1907, then the judge of Division One of the criminal court did no more and no less than he was authorized by law to do when he called in Judge Fort to try relator. Under this concession we need hot dwell upon the provisions of section 2597; but (the case requiring it) devote our attention to an analysis of the Act of 1907.
The title of that act is of value in determining the scope and constitutionality of the act itself. [Sedalia ex rel. v. Smith, 206 Mo. 346.] That title is as follows (Laws 1907, p. 209): “An Act to create an additional division of the criminal court of-Jackson county, Missouri ; to provide for a judge to preside over the same; to provide for officers to attend said court; to provide for the apportionment of cases now or hereafter filed in said court; to empower the judges of said court to makes rules for the numbering and distribution and transfer of cases therein, and to make rules for other purposes; to provide for holding court in any division thereof when the judge thereof shall be unable to hold the same; to provide for the transfer of cases between the court at Independence and at Kansas City; to provide for a place to hold said court; to provide for a stenographer to attend said court; and to provide for changes of venue from, said court and from each division thereof, with an emergency clause.”
Section 1 of the act is: “An additional division, to be known as division two, is hereby created in and for the criminal court of Jackson county, Missouri. The additional office of judge of the criminal court is hereby created. Tbe judge of said court shall have all the powers of a circuit judge in criminal cases, and all acts now in force, or that may hereafter be passed [528]*528regulating the practice and proceedings in criminal cases shall apply to and govern the proceedings of said divisions of said court. The present judge of said' criminal court shall preside over division one of said criminal court during the remainder of his term of office, and he shall he known as the judge of division one thereof.”
Section 2 reads: “Whenever, in the opinion of the judge of division one of said criminal court, the business of said court shall require the assistance of an additional judge to promptly dispose of the same, said judge of division one of said criminal court shall notify, in writing, the judge of division seven of the circuit court of Jackson county, and it shall thereupon be the duty of said judge of said division seven of said circuit court, with all convenient speed (but not until the conclusion of the case which may then be on trial before him in said circuit court) proceed to open said division two of said criminal court, and to proceed with the business thereof, and to continue in the performance of such duties until, in the opinion of the judge of division one of said court, that such assistance is no longer needed, and the judge of .division two shall thereupon adjourn said division two of said court finally; and said division shall stand adjourned until the assistance of said judge is again needed. All matters pending in said division two at the time of such adjournment shall be transferred to division one, and the judge of division one shall have full power to act in all such matters so transferred to his court. But the judge of division two shall retain authority to. dispose of motions for a new trial, in arrest of judgment, and similar motions, to sign bills of exceptions, to allow appeals and to make such other orders in any cases tried before him as shall be necessary to protect the rights of appeals of the defendants in such cases. If the judge of said division two shall fail to make an [529]*529order transferring all matters to said division one prior to the adjournment of said court, the adjournment itself shall constitute such transfer.”
Section 3 is not material here. It provides that division two shall be attended by the clerk of the criminal court and the marshal of said county or by their deputies.
Section 4 provides that division two shall have and exercise all the power and jurisdiction possessed by division one and that all the laws how in force applying to the criminal court of Jackson county which apply to division one, shall apply to division two, except as modified by the act itself.
Section 5 gives power .to the judge of division two to appoint a stenographer to perform certain duties, who shall be entitled to certain compensation, such compensation to cease as soon as division two adjourns.
Section 6 is: “Whenever said division two of said criminal court is in session, the judge thereof shall try such cases and dispose of such business as may be agreed upon between the judges of division one and division two thereof; and in case they cannot agree thereon, all cases then pending, or hereafter filed, if not already numbered, shall be numbered consecutively according to their dates of filing, and all odd numbered cases shall be assigned to division one and all even numbered cases shall be assigned to division two, while said division two is in session. ’ ’
Section 7 provides that division two may sit at Independence whenever in the opinion of the judges of both divisions and the prosecuting attorney it is thought that assistance is needed there.
Section 8 reads: “Change of venue shall be allowed by said criminal court from one division to the other division for any legal reason now allowed by law, that may be alleged against the judge of the division to which the same is made. Upon such applica[530]*530tion for a change of venne in proper form, the cause shall be transferred" to the other division, or the disqualified judge may require the judge of the other division to hold court in the division of the disqualified judge and try said cause. If both divisions of said court are not in session when an application for a change of venue is made, such division not in session may be opened within a reasonable time thereafter and proceed' with the trial of said cause, or the judge not disqualified to hold court may, hold court for the disqualified judge in the court room of the disqualified judge. If application for a change of venue in any division of said court shall be made against more than one judge thereof, the judge before whom the same is made shall determine whether or not the facts exist as charged against the other judge.”
Section 9 provides that when either judge is sick or absent or for any cause cannot hold his term or part of term in division, such term or part of term by request of the judge of division may be held by the judge of the other division and if no such request is made, or the judge so requested fails to hold such term or part of term, the judge from some other circuit shall be called in to hold court for such division for the occasion.
Section 10 provides that the judge of' division seven of said circuit court shall receive the same pay when acting as judge of division two of the criminal court as he receives as circuit, judge and from the same source.
Section 11 authorizes the judge of division two to direct where his court shall be held in Kansas City until such time as the county court shall provide a suitable court room. The payment of the cost of preparation and the rent is provided for.
Section 12 is: “The judges of said criminal court in Jackson county are hereby empowered to frame and [531]*531enter of record in said court rules for the numbering of all cases now pending, or hereafter brought therein, for the proper distribution of cases for trial and disposition among the various divisions of said court, and for the transfer of cases to and from such division and between Independence and Kansas City, which rules may, in like manner, be changed from time to time as may be found necessary. Said judges, or a majority of them, may in like manner make from time to time such other rules for said court as may be agreeable to the usages and principles of íaw and not inconsistent with the code of procedure and the Constitution and laws of this State.”
Section 13 reads: “So much of all acts now in force and applying to said criminal court as are not repealed by inconsistency .of this act, are hereby continued and made to apply to the two divisions of said criminal court in said Jackson county.”
Section 14 reads: “All acts or parts of acts inconsistent with this act are hereby repealed.”
Section 15 reads: “The increase of the criminal business of said criminal court in saidn county being so great that the said criminal court as now constituted is unable to dispose of the same, because said business is in arrears, and is continually and rapidly accumulating and aggravating the delay in the administration of justice, an emergency is created within the meaning of the Constitution, which requires that this act shall go into effect immediately on its approval; therefore this act shall go into and have effect and be in force from and after its approval.”
(a) Is the foregoing act bad under the constitutional provisions against special - legislation ?
Plainly it includes in its scope but one court and that is the criminal court of Jackson- county. In one sense, therefore, it might be said to be a local law — a special act. If, now, the question were new, much [532]*532might he said pro and con, but it is not new. In the particular in hand, the Act of 1907 does not differ in substance from other legislation declared constitutional, over and over again,' upon full argument and mature deliberation in this court. For instance, an act providing among other things for holding a term of the circuit court of Montgomery county at Montgomery City in said county (Laws 1889, p. 68), State ex rel. v. Hughes, 104 Mo. 459, was sustained against the same attack. In 1887 (Laws 1887, p. 53) the Legislature provided for holding terms of court at Piedmont in Wayne county. The act was assailed as unconstitutional,, but was sustained. [State v. Orrick, 106 Mo. 111.] The same point was made in relation to a court established at Higginsville in Lafayette county and the ruling there followed that in the Hughes and Orrick cases. [State ex rel. v. Field, 119 Mo. 611.] The same point was again here in State ex rel. v. Yancy, 123 Mo. 391, and was ruled the same way. - Inferentially it was involved in Ex parte Renfrow, 112 Mo. 591, with a like result. So, in State ex inf. v. Dabbs, 182 Mo. 359. It was directly involved in State v. Etchman, 189 Mo. 648, and in Coffey v. Carthage, 200 Mo. 616, with a like result.
It is not wise to swell the opinion by restating the doctrines and propositions expounded in the cases cited. The general principle underlying all those cases was that legislation authorized by the Constitution (as was this, art. 6, sec. 31, Const.), cannot be regarded as local or special though its application is purely local, and that whether an act of the Legislature be a local or a general law must be determined by the generality with' which it affects the people as a whole rather than by the extent of the territory over which it operates; and if it affects equally all persons who come within its range it can be neither special nor .local within the meaning of the Constitution. That [533]*533general doctrine applies in the point now under discussion made against the Act of 1907, and saves the law.
In the Coffey ease the assault was made on the provisions of the act dividing the circuit court of Jasper county into two divisions, and a point was raised relating to the procedure in changes of venue. The constitutionality of the provisions of that act relating to changes of venue was sustained. Like provisions relating to changes of venue in the several divisions of the circuit courts of Jackson and Buchanan counties have been enforced by this court. [Guy v. Railroad, 197 Mo. 174; Eudaley v. Railroad, 186 Mo. 399; Leslie v. Chase & Son Merc. Co., 200 Mo. 363.]
The upshot of the whole matter is this: The judicial system of the State is a whole, and therefore acts dealing with the courts have been usually held general though not applicable to every court of like nature in the State. [State ex rel. v. Shields, 4 Mo. App. 259.]
The reasoning of all the foregoing cases may be found crisply stated in the above generalization. [See a learned note to section 53 of article 4 of the Constitution, on page 203, Mo. Ann. Stat. 1906.]
We can add nothing to what was said in the cases cited, and, upon the doctrine there announced, the point is ruled against respondent.
(b) The Act of 1907 was assailed in oral argument from another side. The contention is subtle and somewhat baffles precision of formulation. Stated broadly it seems to be thát Division Two is made a criminal court by legislative flat. The title of the Act of 1907 and the provisions following that title put so much beyond dispute. But it is contended that under the somewhat obscure and involved provisions of section two of the act, though it is a full-fledged court armed with judicial power to try criminal cases in [534]*534Jackson county, yet, so far as the performance of each and all such duties is concerned in taking cognizance of cases, it comes and goes at the will and pleasure of Division One. Under some sleight of hand in judicial necromancy, hitherto unheard of, it acts a role in the childish play of Now You See It and Now You Don’t See It. It is argued that it has nothing whatever to do until the judge of Division One says so. If he never says so, that ends it — it sleeps on until he awakens it into life and action. Being dormant, Division One may leave it in that pickle and go to the General Statutes for power to call in outside help in changes of venue.
If a court, a judicial entity, can be created of that sleepy and novel character it would seem to be under some doctrine more honored in the breach than in the observance. If that contention be sound, then in my opinion the court has no reason to exist and ought to be pruned off as an unconstitutional excrescence. It is but a barren fig tree and should be cut down; for why cumbereth it the ground? The thing is lukewarm, so to speak, and, being neither cold nor hot, should be spewed out of the mouth. If the only question here was Hamlet’s old one, To Be, or Not to Be, and if the court could only Be when Division One says “Be,” then the law should say, “Not Be,” and put a quietus on the court itself. But if the whole act be considered from its four corners and all its intendments sought out, such notion is foreign to its provisions. If section 2 and section 8 be construed together and in the light of the manifest purpose of the law — the need and occasion of it — so as to give effect to all its provisions, it will be found that in so far as Division One may have more cases than it can try, it can dispose of such excess by transferring them (under rules to be adopted by the judges of both divisions) to Division Two. There is nothing unreasonable about [535]*535that. It is a sensible working-plan, adjusting itself. That is, if two wills exist, there. will be found a tuciy, and when Division Two has performed the assigned labor it stands adjourned so far as that particular work is concerned. But when we turn to section 8 we are ■confronted with a different condition of things altogether. There is nothing optional in that section-nothing which indicates that the judge of Division One must call Division Two into action or session to receive cases on change of venue. To the contrary the statute assumes it is open as a receptacle into which Division One shall pour the jurisdiction it is parting with; and, therefore, a defendant who takes a change of venue ■can point to section 1 of-the Act of 1907 which creates Division Two and endows it with all the powers of a court, and say to the judge of Division One: “There is the court, made such by legislative fiat, endowed with every inherent and incidental power necessary to carry cut the purpose of its organization, and to which under section 8 of the act you must transfer my case.” We think the clear words of the law point unfalteringly to' the legislative purpose that Division Two should receive and try changes of venue from Division One and vice versa. Division One has no will about it. It loses jurisdiction by the change and its responsibility is at an end. The change going, the law takes care of it. This being true, why should we approach that act with a sour and critical disposition to wrest any other meaning out of it? Why turn a cold countenance on the statute? Accordingly, the language of section 8 being mandatory, what good reason can be given why a change of venue should not he granted to Division Two, precisely as we have held must he the ease in Jackson, Buchanan and Jasper, counties and in the city •of St. Louis in civil eases?
It was argued orally (as we grasped it at the time) that it is wise to leave to the judge of Division One [536]*536a. certain flexibility of power in changes of venue to call in a circuit judge or a criminal judge from any other part of the State. But that is an argument to be addressed to the Legislature. Not only so, but it proceeds upon either a false or a fanciful premise. It proceeds on the implied theory that the judge of Division Two may be an unsafe judge in upholding the majesty of the law and that the judge of Division One would presumably be aware of that fact, and, so forewarned, he will seek to serve the majesty of the law by bringing in a better judge to uphold it. But what if the judge of Division Two at such crisis (when, if ever, it arises) is not subject to such infirmity? And what if the judge of Division One (when, if ever, the crisis does come) has a mote or a beam in his own eye, causing him to see and move obliquely for by-ends? One judge is as liable to be inefficient as the other. Wherever McG-regor sits may be the head of the table of wisdom, but (alas!) who will point out McGregor¶ Under some circumstances the argument could be made to run precisely the other way, and the supposed sword be two-edged. The truth is that all such reasoning is unsound. The theory of the law is that every judge is a component part of the department of justice, a sound member of a sound body, that each member of the judiciary will seek the law and do it — will strive with might and main, bringing into play every endowed power of mind and heart, to fearlessly uphold the whole body of the law — will act righteously without fear and without favor. Any other theory cannot be tolerated for a moment. If the black evils suggested in argument should unfortunately come, there is a remedy under the policy of our laws. Those evils may be tempered by a wise use of the appointing power in case of vacancies — by a wise use of the elective franchise in case terms of judicial officers expire [537]*537and, if it comes to the worst — other remedies exist. They cannot he tempered by wresting a change of venue law from the lines chalked out in the statute.
The Act of 1907 .is a crude piece of legislation-diffuse, cumbersome, involved, and, hence, troublesome to interpret — but when we consider that in creating Division Two and giving it full-fledged judicial power there is implied every intermediate or incidental power necessary to the performance of the main power, the trouble vanishes and we can see that Division Two in legal contemplation stands open and ready to receive cases on change of venue, and that it would violate the spirit and letter of the statute not to send such cases to that division.
The grant of power to try changes of venue, carried with it by necessary implication everything necessary to make such grant effectual (State ex rel. v. Perkins, 139 Mo. l. c. 118), including the power to meet, open court, try the case, adjourn and generally live, move and have its being as a court in that behalf.
Accordingly, we so hold.
The premises considered, Judge Fort had no legal right to take jurisdiction of relator’s case. It should' go to Division Two where Judge Porterfield by virtue of being judge of Division Seven of the circuit court has jurisdiction ex officio as judge of Division Two of the criminal court of Jackson county.
The preliminary rule is made absolute, and a permanent writ is awarded. We shall not assess the costs against Judge Fort. Let the relator páy them. It is so ordered.
Fox, Graves and Woodson, JJ., concur — Woodson in separate opinion. Gantt, C. J., Burgess and Valliant, JJ., dissent — Gantt and Valliant, JJ., in opinions filed.j