State, ex rel, v. Kelley, Judge.

[Vol. 25 (N.S.)

Cases of prohibition have, however, been entertained both in courts of appeals and in the Supreme Court. The case of Ex Parte Oldham, 19 C.C. (N.S.), 270, was one in which it was sought to restrain the judges of the courts of common pleas from acting as a conservancy court. The case of State, ex rel Berry, v. Cushing, Judge, decided by this court, post, was an action in which it was sought to prohibit a judge of the common pleas court from proceeding to hear a motion to dissolve an attachment on appeal from the Municipal Court of Cincinnati.

Two cases in prohibition have recently been decided by the Supreme Court. The syllabus of each of these cases is to be found in No. 49, Ohio Law Reporter for March 6, 1916, Vol. 13, pages 43 and 44-being State, ex rel Garrison, v. Brough et al, and State, ex rel Nolan, v. Clen Dening. In these cases, in which we have seen advanced copies of the opinion of the court not yet published, the object and use of the writ of prohibition is clearly stated. Paragraph 1 of the syllabus of the first named case is as follows:

"The writ of prohibition is an extraordinary legal remedy, whose object is to prevent a court or tribunal of peculiar, limited or inferior power, from assuming jurisdiction of a matter beyond its cognizance. The writ can not be made to serve the purpose of a writ of error to correct mistakes of the lower court in deciding questions of law within its jurisdiction."

Paragraphs 2, 3 and 4 of the syllabus of the second case are:

"2. The writ of prohibition is a high prerogative writ to be used with great caution in the furtherance of justice and only where there is no other regular, ordinary and adequate remedy.

"3. The writ may be invoked against any inferior court or inferior tribunal, ministerial or otherwise, that possesses incidentally judicial or quasi judicial powers, to keep such courts. and tribunals within the limits of their own jurisdiction.

"4. If such inferior courts or tribunals in attempting to exercise judicial or quasi judicial power are proceeding in a matter wholly or partly outside of their jurisdiction, such inferior courts or tribunals are amenable to the writ of prohibition as to such ultra vires jurisdiction."

If, therefore, the court of insolvency is now wholly without jurisdiction to hear and determine a case for divorce and alimony, it would become the duty of this court to allow the issue of the writ to prevent it from undertaking to exercise such jurisdiction.

The main question to be determined is whether the Court of Insolvency of Hamilton County has jurisdiction to try an action for divorce and alimony after December 31, 1914.

The Court of Insolvency of Hamilton County is a local court established by act of the General Assembly under authority granted by Section 1, Article IV of the Constitution. The constitutionality of the law creating it was upheld in State, ex rel, v. Archibald, 52 O. S., 1. An amendment to the act conferring certain jurisdiction upon it (93 O. L., 669) was held invalid as being obnoxious to Section 26, Article II, in so far as it attempted to confer exclusive jurisdiction on that court of various matters within the jurisdiction of the court of common pleas.

The constitutionality of the law establishing the Insolvency Court of Cuyahoga County, which is similar to that of Hamilton county, was directly sustained in State, ex rel, v. Bloch, 65 0. S., 370. In discussing the power of the Legislature in respect to the establishment of such courts and fixing their jurisdiction, the court uses the following language in the opinion in that case, at page 391:

"The power is here undoubtedly granted to the General Assembly to create courts other than those enumerated in the section; and the material inquiry is, what other courts may be so created? The answer is found in the language of the section, which is, 'such' other courts as the General Assembly may from time to time establish.' That language vests in that body full power to determine what other courts it will establish, local, if deemed proper, either for separate counties or districts, and to define their jurisdiction and powers. The only limitation placed upon the exercise of that power is that the courts so established shall be inferior to the Supreme Court, subject, of course, to the further qualification that no legislation can alter the judicial system established by the Constitution, nor interfere with the courts designated by that instrument as the recipi

State, ex rel, v. Kelley, Judge.

[Vol. 25 (N.S.)

ents of the judicial power. Apparently there could have been but one purpose in making this special grant of legislative power, and that was to enable the General Assembly to meet the public needs for additional courts, as they might arise in different parts of the state. It is hardly probable that it was considered or contemplated that the same necessities in that respect would arise at the same time in all parts of the state. Hence, the power was given to establish these additional courts from time to time, as in the opinion of the legislative body the public exigencies should appear to render necessary or proper."

There is, therefore, no question as to the power of the General Assembly to create or to abolish such a court as it may deem best. Its right to abolish such a statutory court at any time was sustained in State, ex rel, v. Wright, 7 O. S., 333.

The entire jurisdiction of such a court must be derived from the statutes. The power to create the court necessarily implies the duty to define the jurisdiction, and this jurisdiction can be changed by proper laws from time to time as the General Assembly may determine.

The power to grant a divorce is a statutory and not a common law power. 14 Cyc., 581; Olin v. Hungerford, 10 O. S., 268, 270. It is a judicial power, not legislative. Bingham v. Miller, 17 Ohio, 445.

Under Section 1637, General Code, prior to its last amendment, the court of insolvency in Hamilton county had jurisdiction in actions of divorce and alimony concurrent with that of the court of common pleas. When Section 1637 was amended February 17, 1914 (104 O. L., 179), becoming effective May 17, 1914, that jurisdiction was distinctly taken away after December 31, 1914. The language is so explicit that there can be no doubt as to the intention of the Legislature; and this is made more apparent, if that were possible, by the fact that on the same day Section 1639, General Code, was amended to provide for a division of "domestic relations" in the court of common pleas in Hamilton county, in which one of the judges of that court should sit, to whom should be assigned all juvenile court work and all divorce and alimony cases (104 O. L., 176). Under this

act the common pleas judge to be elected to fill the division of domestic relations would become vested with the power to try such cases at the same time that such power was withdrawn from the insolvency court.

It is argued, however, that no provision was made for the transfer of pending and undisposed of cases, from the insolvency to the common pleas court. That there should be on December 31, 1914, any such pending cases with no provision for transfer, is to be deplored. But it must be noted that this amendment was passed more than ten months before the date fixed for the withdrawal of this jurisdiction. The divorce suit in question here was filed more than six months after its passage and over three months after it became effective. The common pleas court then had concurrent jurisdiction, and the passage of this act must be considered as notice to the members of the bar and the public that a time limit had been fixed for the trial of such actions in the insolvency court. Where parties desired to run no risk of having their proceedings prove abortive because of inability to secure a final decree during the year 1914, they were at liberty to institute such proceedings in the common pleas court where there was a continuing jurisdiction. Such a course was probably anticipated by the General Assembly in providing what it doubtless deemed a sufficient time, before the withdrawal of its jurisdiction, for the disposition by it of divorce cases then pending in the insolvency court.

If the court had been abolished without any provision for transfer of cases to another court, there could have been no contention that it should persist after that time to hear and determine cases until all its pending cases had been tried and adjudged. There is no question but that all of its pending cases would have been terminated and held for naught. The same result would follow the withdrawal of its jurisdiction to hear and determine any particular class of cases, as to such cases.

"Whenever a statute from which a court derives its jurisdiction in particular cases is repealed, the court can not proceed under the repealed statute, even in suits pending at the time of

State, ex rel, v. Kelley, Judge.

[Vol. 25 (N.S.)

the repeal, unless they are saved by a clause in the repealing statute. For the effect of the repeal of a statute is to obliterate the statute repealed as completely as if it had never been passed, and it must be considered as a law that never existed, except for the purposes of those actions or suits which were commenced, prosecuted and concluded while it was an existing law. This rule holds true until the proceedings have reached a final judgment in the court of last resort, for this court, when it comes to pronounce its decision, conforms to the law then existing, and may, therefore, reverse a judgment which was correct when pronounced in the subordinate tribunal whence the appeal was taken, if it appears that pending the appeal a statute which was necessary to support the judgment of the lower court has been withdrawn by an absolute repeal. If the only law purporting to confer jurisdiction upon the court to try the case is void, then all the acts of the court are without authority and also void. In such case no intendment of the law, or presumption of fact, can be made in favor of its jurisdiction." (7 R. C. L., 1031.) Ball v. Tollman, 135 Cal., 375; Hunt v. Jennings, 5 Blackf. (Ind.), 195; Todd v. Landry, 12 Am. Dec. (La.), 479, and see note on page 480 and cases there cited.

"The repeal of all statutes relating to divorce deprives the courts of their jurisdiction in divorce actions and terminates their jurisdiction even in pending actions unless the repealing act contains a saving clause." (14 Cyc., 583.) Grant v. Grant, 12 S. C., 29.

If the law purporting to confer jurisdiction on the court to try a case is void, no intendment of law or presumption of fact can be made in favor of its jurisdiction. A decree of divorce granted without jurisdiction of the subject-matter is void. In re Christiansen, 17 Utah, 412.

It is contended, however, that the general saving clause found in Section 26, General Code, must be considered as applying to all cases for divorce and alimony pending in the insolvency court January 1, 1915, and by reason of that provision it became the duty of that court to hear and determine such pending cases after that date.

Section 26 is as follows: