Irwin v. Irwin

37 P. 543, 2 Okla. 180

• Court: Supreme Court of Oklahoma
• Decided: September 7, 1894
• Status: Published

Opinions

Statement of case and opinion by

Dale, C. J.:

January 14, 1898, Eliza Jane Irwin commenced proceedings before the probate judge of Payne county for divorce and alimony. The complaint filed in said cause is as follows:

‘ ‘In the Probate Court in and for Payne County, Territory of Oklahoma.

‘ ‘Eliza Jane Erwin, vs. Elonzo Erwin.

“That the plaintiff is now, and has been for more than two years last passed, a bona fide resident of the Territory of Oklahoma and is now a bona fide resident of the county of Payne.

‘ ‘ That the plaintiff and defendant were duly married on the 14th day of March, 1883, and lived together until January 7, 1893; that on or about February —, 1892, and on divers other occasions prior and subsequent thereto, said defendant was guilty of cruel and inhuman treatment to said plaintiff in this to-wit: Slapped said plaintiff.

1 ‘ Plaintiff further alleges that for a long time past said defendant has cursed and abused said plaintiff by calling said plaintiff vile names. Plaintiff further alleges that said defendant failed, refused and neglected to provide for said plaintiff and her minor children according to his station in life.

"That said plaintiff and defendant have had born to them, as the fruit of their marriage, three children, wdiose names and ages are as follows: Louis Walter, aged six years; Leroy Edmond, aged four years; Lela Pearl, aged one year.

“That the defendant is not a fit person to have the care, custody and education of said, children; that said, plaintiff and defendant separated on the 8th day of January, 1893, and have not since lived or cohabited together; that the defendant is the owner of personal property of the value of six hundred dollars.

“Wherefore, plaintiff prays that the bonds of matrimony heretofore existing between said plaintiff and defendant be dissolved and held for naught, and that said 'plaintiff be granted a divorce, and that she be given the care, custody and control of the minor children, and that she have judgment for §300 alimony, to be paid as the court may direct, and such other and proper relief as to the court may appear just and equitable.”

The foregoing complaint was duly verified, and on the same day plaintiff filed her affidavit in the cause, stating in substance that the defendant was the owner of certain personal property, consisting of six head of horses, one span of mules, one jack, one jenney, two milk cows and calves, together with household goods, all of the aggregate value of six hundred dollars; that she was without means to support herself and children; that defendant had entirely abandoned her and the children and refused to contribute to their support; that she had a meritorious cause of action against defendant, and that defendant was threatening to convey away his said property for the purpose of preventing her from collecting her alimony and preventing her from collecting any judgment she might secure in the action for alimony. She also prayed for an order enjoining defendant from selling or disposing of his property until the final determination of the suit.

A summons was duly issued upon the complaint, entitled as follows: Eliza Jane Irwin, plaintiff, vs. Elorenzo Erwin, defendant, and on the face of the summons the defendant is designated as Elorenzo Erwin, and he is directed to appear and answer to the complaint on the 16th day of February, 1893, and unless he so appear and answer, that judgment for a decree of divorce and three hundred dollars alimony, statutory attorney fees and costs, will be rendered against him.

Upon the bach of the summons appears the certificate of the officer showing service on the 19th day of January, and designating defendant as Elonzo Erwin.

On January 14, the same day upon which the complaint and the affidavit for injunction was filed, it appears from the record that the probate judge issued an order allowing a sum of money, the amount not appearing, for the support of plaintiff; and her children, during the pendency of the action, and also enjoined defendant from selling or disposing of any of his property during the pendency of the action.

February 16 the defendant appeared and filed a motion, as follows:

“Now comes Lorenzo Irwin, for the purpose of making this motion and for no other purpose whatever, and moves the court to desist from entering any order or decree or judgment against him in the above entitled action, in every particular wherein the same is intended to affect him, the said Lorenzo Irwin, for the following, among other reasons, to-wit:

“ T. Because this court has no jurisdiction in action to obtain a divorce.

“‘2. Because nothing appears in any of the pleadings on file in the above entitled cause to authorize or give jurisdiction to any court to entertain a proceeding for, divorce.

“ ‘ 3. Because the pretended summons or process in the above entitled cause is a nulity in its terms, conditions and requirements and does not warrant a court to entertain jurisdiction of any divorce matter thereunder.

“ ‘4. Because all orders made and process issued in the above cause have been so made and issued contrary to law as appears upon the pleadings on file therein.

“ ‘5. Because there is nothing' in any of the pleadings, files or process herein to authorize this court to make any order or decree or judgment as against him, the said Lorenzo Irwin.”’

This motion was duly signed by George P. Uhl, attorney for Lorenzo Irwin, and after consideration the same was by the court overruled.

No further or other appearance was made before the probate judge by the defendant, and after passing upon the motion of defendant, which ‘ruling occurred on February 18, the record discloses the following order:

“Be it rembered that now, at this time, 4 o’clock, p. M., February 18, 1893, there being no further business before the court, it is ordered and adjudged that this court be and the same is hereby adjourded.”

Attest, February 18, 1893. Chas W. McGraw, Clerk.

February 20, the plaintiff obtained leave and filed an amended complaint, which corrected the names of both plaintiff and defendant, and, as corrected, they read, Eliza Jane Irwin, instead of Eliza Jane Erwin, and Lorenzo Irwin, instead of Elorenzo Erwin, and on the same day called the case for trial and proceeded to hear and determine the questions involved. Judgment was rendei'ed for plaintiff, granting her a divorce and the care, custody and control of the children; also decreed plaintiff alimony, and set aside to plaintiff, as such alimony, six head of horses, one span of mules, one wagon and double harness, one-half of a stack of hay and all household goods belonging to both plaintiff and defendant.

There appears in the judgment rendered a finding to the effect that defendant was commonly known by the name of Lorenzo Irwin, Elonzo Irwin and Elorenzo Irwin, and that his sir name was commonly spelled Erwin and Irwin.

In the record also appears an order as follows:

“Be it remembered that now, at this time, Febru ary 20, 1893, the probate court in and for said county of Payne was duly convened by order of court at the hour of 2 o’clock p. m. , etc. * * *

“Among the proceedings actually had were the following, to-wit:”

Then follow the minutes showing- the trial and judg.ment in the case here under consideration.

Upon the record, as thus presented, the defendant below brings the case here for reversal and assigns error as follows:

“1. The probate judge had no jurisdiction in actions for divorce.

“2. The complaint fails to state a cause of action for divorce.

“3. The injunction was improperly issued, there being no- notice or bond.

”4. The court was not in session at the time the divorce was grauted, the same having been adjourned for the term prior thereto.

“5. The original proceedings were not against plaintiff in error.”

OPINION OF THE COURT.

We think the probate court had jurisdiction in actions for divorce at the time this proceeding was instituted. Section 4966, laws of Oklahoma, 1890, provide that divorce may be decreed by the district and probate courts of this territory.

Under the Organic Act of Oklahoma, the legislature had no power to vest in probate courts jurisdiction to try causes for divorce, as such jurisdiction was vested in the district courts, § 9 of the Organic Act expressly providing that ‘ ‘ said supreme and district courts, respectively, shall possess chancery as well as common law jurisdiction, and authority for redress of all wrongs committed against the constitution or laws of the United States, or of the territory, affecting persons or property.”

This provision of our Organic Act clearly intended to, and did, vest in the district courts of Oklahoma all the powers usually given to district courts of the different states, which includes power to hear and determine actions for divorce. Perhaps, as a better expression of the intention of congress upon this subject, attention should be directed to the latter clause of § 2 of our Organic Act, which reads as follows:

“The supreme and district courts of said territory shall have the same power to enforce the laws of the state of Nebraska, hereby extended to and put in force in said territory as courts of like jurisdiction have in said state; but county courts and justices of the peace shall have and exercise the jurisdiction which is authorized by said laws of Nebraska. * * ”

The jurisdiction to hear actions for divorce under the laws of Nebraska was in the district courts. Probate courts, in that state, do not have any jurisdiction in such cases. No question, then, can arise as to the intention of Congress in framing our Organic Act.

Sectiou 4966, supra, in so far as it attempted to give the probate coui'ts or this territory jurisdiction in divorce cases, was a nulity until Congress should, in the exercise of its powers, breathe into it life.

This was done, as will be seen by an examination of general § 109, Compiled laws of Oklahoma, 1898. Among other matters that section provides:

“That, in addition to the jurisdiction granted to the probate court and the judges thereof in Oklahoma Territory, by legislative enactment, which enactments are hereby ratified, the probate judges of said territory are hereby granted such jurisdiction in town-site matters and under such regulations as are provided by the laws of the state of Kansas. * * ”

If the legislature had no power to give the probate courts jui'isdiction in matters of divorce, the act of Congress ratifying the same was sufficient, and in Finch vs. United States, 1 Ok. 896, in passing upon this same question, this court has so held. And in such decision, in considering whether or not it was necessary for Congress, in ratifying the law, to do more than to refer to the same in such a manner as to make certain the intention of Congress, this court said:

“Beyond question the law-making power may pass a statute giving the force of law to an instrument, previous statute or document, without setting it forth at length. It is sufficient if it can be made certain.” (Lawson’s Rights and Remedies, vol. 7, § 3758, and cases therein cited).

This has frequently been done by congress and no further example need be cited than § 2 of our Organic Act.

We find, then, that the legislature, having clearly intended to vest jurisdiction in probate courts to try and determine actions in divorce, and congress having assented to such legislative enactment, that at the time this suit was instituted in the court below, jurisdiction obtained.

Before we conclude this opinion it will be necessary to again discuss the question of jurisdiction of the probate courts to. try and determine actions for divorce under the present laws of Oklahoma. We now pass to the second assignment of error.

It is contended that the complaint fails to state a cause of action. The complaint is very indefinite in its specifications, and if held to be a sufficient complaint in divorce, it must appear so from the allegations therein, which read as follows:

‘ ‘ That on or about February, 1892, and on divers other occasions prior and subsequent thereto, said defendant was guilty of cruel and inhuman treatment to said plaintiff, in this, to wit: slapped said plaintiff. Plaintiff further alleges that for a long time past said defendant has cursed and abused said plaintiff by calling her vile names. Plaintiff further alleges that defendant failed, refused and neglected to provide for said plaintiff and children according to his station in life.”

The sufficiency of the complaint was not questioned below, in any manner, unless the second ground set forth in the motion of appellant may be considered as having put the complaint in issue. However that may be, the motion could have no greater effect or force than a demurrer, and had appellant simply filed a demurrer and stood upon the same, he would have saved all the rights he has by filing his motion.

It may be said that the complaint is not drawn in good form, and that the allegations relied upon are for the most part conclusions, yet enough can be gathered from the language used to justify the court in concluding in what manner the appellant has violated the law of marriage contract.

Cruel and inhuman treatment is charged as one of the grounds of complaint. If the complaint merely stated that appellant had been guilty of cruel and inhuman treatment without specifying in what manner, a demurrer would be sustained to such an allegation. But where the language referred to is followed with or preceded by words specifically setting forth acts which, if supported by evidence, might be sufficient upon which to support a decree, the court would not err in holding that the complaint stated a cause of action. In this case it is alleged that “on or about February —, 1892, and on divers other occasions prior and subsequent thereto, defendant was guilty of cruel and inhuman treatment in this, to-wit: Slapped said plaintiff.” It is contended that the complaint should show that such slapping was done in anger or with intent to injure the party complaining. No doubt such an additional allegation would strengthen the complaint and leave nothing to inference. But the language used must all be considered together, and, if the intent of the pleader plainly appears, such intention will be sufficient in the absence of a motion to make more definite and certain. In this case it appears from the words used that the defendant, upon numerous occasions, in a cruel and inhuman manner, slapped plaintiff. By the term slapped, is evidently meant struck or beat, and while the latter terms are usually employed to convey the meaning of physical pain, .injury or mental distress, yet where the term slapped is used as an evidence of cruel and inhuman treatment, the mind receives the same impression. And so with the second allegation that “for a long time past said defendant has cursed and abused said plaintiff by calling her vile names.” This is a charge which upon its face conveys in a direct and positive manner the charge of cruel and inhuman treatment.

The word cursed is susceptible of but one meaning. Its synonyms are malediction, imprecation, execration; where used by one towards another it is intended to convey hate and detestation, and as an invocation for harm or injury. When a husband curses his wife, he is guilty of the grossest character of cruelty and inhumanity, It has been 'well stated that, “to the credit of woman be it said, that she usually lives in an atmosphere far removed from profanity, and a devoted wife and mother must be inexpressibly shocked when curses fall from the lips of a husband, conveying to her mind the fact that her husband hates and detests her.” So, too, in the use of vile names by the husband towards the wife. To a sensitive woman, of virtuous character, in no way could a husband evince his cruelty and inhumanity more completely than by calling his wife vile names; and like the word cursed, the word vile has also a well defined meaning. When used.as it appears in the complaint, it means debased, lost to decency, and may mean much. more. But giving to it the narrowest scope possible it conveys to the mind, when spoken of a woman, the impression that she is base, degraded and entirely wanting in everything that goes to make a woman respectable. It would add but little to the complaint if the particular kinds of vileness, which the husband assumed the wife to be guilty of, was specifically described in the complaint; and after consideration we are of the opinion that, upon its face, the complaint states a cause of action, and if the defendant was not fully informed as to the nature of the cause charged against him, he had his remedy by motion to make more definite and certain. It the absence of such motion the complaint should stand.

The third assignment of error is not well taken. Section 4975, Oklahoma statutes, provides, among other matters, for the issuing of an order for the disposition of the property of the parties to a divorce proceeding pending litigation, and the same section further provides that no bond shall be required of either party.

However, we find in the fourth assignment of error, good reasons for setting aside the judgment of the trial court. It appears from the transcript of the record filed in this case, that on February 18, 1893, the probate court adjourned, and that the divorce was granted on February 20, two days thereafter. The order of adjournment on the 18th is as follows:

"Be it remembered that now, at this time, 4 o’clock P. M., February 18, 1893, there being no further business' before the court, it is considered, ordered and adjudged that this court be, and the same is hereby, adjourned.”

This order is attested by the clerk and by him duly signed. It is contended by .appellee that it must be presumed from the fact that the court was in session on February 20, that it was not finally adjourned on the 18th, but we cannot presume for or against a record of the trial court; it is here to speak for itself, and if, from its terms, we can determine a fact, we cannot in the least go outside.

In all cases wherein a party seeks a divorce, the pleadings, practice and proceedings in the probate court are the same as if the cause were to be tried in the district court.

The law defining the duties of probate judges (§ 2, art. 14, chap. 19, laws of 1890), provides for holding terms of court on the first Mondays in January, March, May, July, September and November of each year, and continuing so long as shall be necessary. Such law expressly contemplates regular terms of court, opening at stated times, and closing when the business for the term is concluded. These terms are held and conducted in all respects the same as are those of the district courts. It will not be contended that a divorce can be granted by a judge in vacation, nor that a court has power to convene in session after a final adjournment for the term, until the next regular term commences. The langage used by the court in its order adjourning the court on February 18, is almost, if not precisely, what a court would use in making a final adjournment for the term. The statute says that the court shall continue so long as shall be necessary. The order of adjournment reads, ‘ ‘There being no further business before the court, ” etc., thus following the exact idea of the statute in providing for ending the sessions of the court. Again, does not the fact that no time is fixed in the order adjourning court for the reconvening of the same, conclusively establish the status of the adjournment? If the order had stated that the court adjourned sine die would it have been any stronger in effect than the one made?

In Bouvier the definition of the word adjourn is given as_ follows: “To put off, to dismiss till an appointed day, or without any such apppointment.” If an adjournment is had without fixing any specified time, the law determines the time at which the court shall convene, to be at the beginning of the next term.

Suitors and litigants take notice of the law which fixes the commencement of a term of court, but no person can be held to have notice of the convening of a court, unless such notice is given by law, or by the order of the court.

To retain the power within himself and to control the times at which his court shall convene, the judge must at each adjournment specify a time certain as the date when his court will again meet, or lose the power to hold any further sessions until the time as fixed by law. If this were not true, great injustice would frequently happen to litigants. A court could, as was done in the case under consideration, adjourn without fixing a time to again convene, and, at a time entirely optional with the court, again convene and proceed to transact business, render judgments and decrees which might work great injustice, if such business were done in the absence of either of the parties to an action. And yet, no redress could be had by the aggrieved party, because the court would be in regular session and his judgments in all respects in con-formitjr with law. It was- not the intention of the legislature to make it possible for courts to so transact their business, and no litigant should be kept in ignorance of the times when the court will sit.

We think the judgment of the lower court was not rendered at a time when the court was, under the law, in session, and, therefore, such judgment is set aside. Holding to this view, it is unnecessary to discuss the sixth assignment of error.

We have reached a point in this case where we deem it necessary to determine whether or not the probate courts of this territory now have jurisdiction to hear and determine actions for divorce, and if not, what disposition should be made of this case. The question of jurisdiction in actions for divorce is one of vital interest in this territory. Should this court fail to pass upon the question at this time the decision rendered in this case would be construed by the public generally in a manner contrary to the judgment of this court, and suits now pending and others instituted would proceed to judgment with the apparent approval of this tribunal. To avoid such a condition, and considering the question fairly in the case for disposition, we will briefly discuss the question.

In this territory, as we have heretofore pointed out, the probate courts had jurisdiction in actions for divorce only because congress assented that they might act in accordance with the law passed by the territorial legislature. This enactment of our legislature will be found in the compiled laws of 1890. Article 31, chapter 70, section 7, of such act, is as follows:

"Divorce may be decreed by the district and probate courts of the territory on petition filed by any person who, at the time of filing such petition, is, and shall have been, a bonajlcle resident of the territory for the last two years previous to the filing of the same, and a bona fide resident of the county at the time of and for at least six months immediately preceding the filing of such petition, which 'bona fide, residence shall be duly proven by such petitioner to the satisfaction of the court trying the same, by at least two witnesses who are resident free holders and house holders of the territory. * * *”

It will be observed that the complaint filed in this cause alleges that the plaintiff was within the requirements of the law relative to her residence.

Nowere, except in the statute above quoted; did the legislature of this territory attempt to confer jurisdic tion upon the pi'obate courts to try and determine actions for divorce.

In chapter 50, laws of Oklahoma, 1890, the legislature of this territory, under the head of “Marriage Contracts,” vested the jurisdiction in the district courts to dissolve the marriage relations. (Section 1, article 2, supra.)

Such a provision is not a part of the legislative enactment, ratified by congress, and the jurisdiction given to the pi-obate court being a limited one, it can take nothing except that expressly granted.

The last legislature repealed, in toto, the act passed in 1890, granting to probate courts jurisdiction in divorce proceedings, and we now have upon our statutes only the one law of divorce, found in art. 28, chap. 66. This law places the jurisdiction to try and determine actions for divorce exclusively in the district courts. It provides grounds for divorce in addition to those enumerated in the laws of 1890, and it was the evident intention of the legislature to do away with the granting of divorces by the probate courts of this territory. It is for this court now to determine whether or not the legislature could take from the probate courts a jurisdiction granted in the manner heretofore pointed out.

It will be conceded in the outset that congress may legislate for a territory or grant that power to the people themselves, who act through their legislature. Thus congress may pass an entire code of laws for the government of its territories and make no provision whatever for the convening of the legislatures. But to further the best interests of the people of a territory, to inculcate in them a spirit of self-government, thereby making them sooner fitted for statehood, congress has seen fit to pass an Organic Act, which operates as a constitution, for the territory. Within the lines laid down in such Organic Act the legislature may pass laws, and it may be said that what is not prohibited is within the power of the legislature to act upon. The Organic Act, having limited the jurisdiction of the probate courts, it was beyond the power of the legislature to enlarge such jurisdiction. Therefore, when the legislature attempted to give to the probate courts power to grant divorces they exceeded the legislative grant expressed in the Organic Act, congress having kept the entire control of that matter. In order to give life to the act of the legislature, congress spoke as follows:

“Provided, that in addition to the jurisdiction granted to tire probate court and the judges thereof, which enactments are hereby ratified, the probate judges are hereby granted such jurisdiction in town-site matters,” etc.

Did Congress intend this as original or permissive legislation? Did such ratification have the same force and effect as if made a part of the Organic Act, or did Congress merely intend to enlarge the powers theretofore granted to the legislature? If the former, the jurisdiction of the probate courts remain. If the latter, the repeal of the law by the legislature carried with.it the repeal of the jurisdiction of the probate courts.

There is but little of authority from the courts upon this question. In Utah, in Cast vs. Cast, 1, 112, the supreme court held that under their Organic Act, in effect the same as that of this territory, the probate courts had no jurisdiction in divorce proceedings. Afterward, in Ferris vs. Higley, 20 Wallace 375, the supreme court of the United States held to the view that the act of the territorial legislature conferring on the probate courts a general jurisdiction in civil and criminal cases, both in chancery and at common law, was inconsistent with the Organic Act of Utah, and therefore void. Subsequently the supreme court of Utah, in Whitmore vs. Hardin, vol. 3, 121, in effect reversed the former decision of the supreme court of that territory and held that the legislature could properly grant to probate courts jurisdiction in actions for divorce. But after the decision in Cast vs. Cast, and before the later decision in Whitmore vs. Hardin, Congress passed an act, approved June 23, 1874, which expressly conferred upon the probate courts of Utah concurrent jurisdiction with the district courts in matters of divorce. In Whitmore vs. Hardin, the case did not turn upon the question of jurisdiction, as that matter had been put at rest by Congress; but was considered upon the proposition of the effect to be given to a decree of divorce granted by a probate court at a time prior to the date upon which Congress had acted.

The court very ably reviews the whole matter and concludes that the legislative enactment, in so far as it confirmed jurisdiction in probate courts in divorce proceedings, was valid. The theory upon which the court reached its conclusion was, that at the time this government was created, independent of Great Britain, neither the common law nor chancery courts of England had jurisdiction in actions for divorce, but such jurisdiction was vested in the ecclesiastical courts; the last named courts also had jurisdiction of cases which in this country are given to the probate courts. That congress, in adopting the Organic Act of Utah, had provided that the jurisdiction of cases arising in that territory should be in the supreme, district and probate courts and justices of the peace, giving to district courts common law and chancery jurisdiction, and that such jurisdiction did not refer to actions for divorce, because it did not obtain in the common law and chancery courts.

In examining the decision by which the court arrived at this conclusion, one is impressed somewhat with the fact that, for the first twenty years of the existence of that territory, the probate courts had exclusive jurisdiction in matters of divorce. That the legislative enactment granting such jurisdiction was not questioned until the decision was rendered in Cast vs. Cast, supra, and that property rights, supposed to have been settled for years, were dependent upon sustaining the validity of the jurisdiction of the probate courts. And after considering the decisions within our reach we have but little to guide us and must determine the question from the standpoint of reason.

Jurisdiction to try actions for divorce is conferred by legislative enactment. In this country it does not inhere in any court, and such jurisdiction must be by express statute, or by such plain intendment as to be equivalent to an express statute.

It is well settled then that the probate courts in this territory can have no jurisdiction in actions for divorce except such as is conferred by special enactment, and that the legislature of this territory had not the power to vest in such courts the jurisdiction.

We need not close our minds to the circumstances surrounding the action of congress in ratifying the act of our territorial legislature, and the reasons why such legislature passed two separate divorce laws at its first session.

By reason of a contention for the location of the territorial capital, almost the entire time of the session of the legislature was spent before any attempt was made to pass a code of laws for our territory. Congress provided that the laws put in force by our Organic Act should cease to be the law of the territory at the adjournment of the first session' of the legislature. Near the end of such session the legislature hastily adopted portions of codes from different states, and, in so doing, in some instances, adopted conflicting laws upon the same subject, and especially upon divorce. Thus, under the head of ‘‘Marriage Contract” the jurisdiction in divorce proceedings was placed in the district courts and a ninety days’ residence was all that was i-equired to enable a person to commence proceedings; while under “Procedure Civil,” jurisdiction in such actions was placed in both district and probate courts, and a residence of two years was made a prerequisite .to the commencement of the action. And in many other respects our statutes were inharmonious. In some instances our legislature enacted laws entirely beyond the scope of their power, notably one in relation to contest cases before the United States land offices. Congress had made no provision for compelling the attendance of witnesses before the United States land offices, and, in order to cure such defect, the legislature passed a law providing that any person might be compelled to answer to a summons issued out of a probate court, there made to give his testimony under penalty for contempt, and that such testimony should be reduced to writing and forwarded to the land office, to be received by the register and receiver and considered by them as fully as if such testimony had been taken in the land office. There was much debate in the legislature as to the effect of this law, and whether or not it was one within the power of the legislature to pass.

There was but small consideration given to the subject of divorce. When congress passed its ratifying act it included the laws of the legislature, relative to compelling the attendance of witnesses before probate judges in contest cases in the land offices, as well as the law granting jurisdiction to probate courts in divorce proceedings.

It is fair to presume that at the time congress passed the ratifying act that body particularly had in mind the legislative enactment relating to compulsory methods of obtaining testimony in land office proceed ings, because such law was subjected to a great deal of public criticism. Suppose that the legislature should attempt to repeal such laws, carrying with such repeal the procedure providing that the register or receiver must issue the notice and authority to take the testimony. The repeal would unquestionably make the jurisdiction worthless because it would leave no procedure whereby such jurisdiction could become operative, and we do not doubt that the procedure and practice are matters entirely within the control of the legislature.

It will be seen, therefore, that congress must have intended to place in the legislature much of the responsibility for carrying into effect the laws enacted by such body.

The interpretation of a statute has been well stated as “the art of finding out the true sense of any form of words; that is, the sense which their author intended to convey and of enabling others to derive from them the same idea which the author intended to convey.” It is for this court to declare the intent of congress. If such intent appears in the language used we need investigate no farther, but must content ourselves with declaring such intent. Reverting again to a principle formerly announced, that congress may legislate for a territory or permit the people of such territory to act through its own legislature, it will be seen that this act emanated'first from the legislature; that it was a thought or purpose which had no place in the mind of congress until presented to that body by the people of this territory through its chosen body, the legislature. The law never would have had an existence as an independent creation by congress. It was by grace of congress that this territory was permitted to act in the matter.

Blac.kstone divides laws into four parts: Declaratory, directory, remedial and vindicatory. Later authors have made other distinctions; and there is one class of statutes which may be denominated as permissive, and which come under the head of declaratory statutes as defined by Blackstone.

In speaking of permissive statutes, Sutherland lays down this rule: “When statutes are couched in words of permission or declare that it shall be lawful to do certain things, or provide that they may be done, their literal signification is that the persons, official or otherwise, to whom they are addressed, are at liberty or have the option to do those things or refrain, at their election.”

What is the signification of the language used by congress in ratifying the divorce act of our legislature? Considering the circumstances surrounding the passage, by congress, of-such act, we are bound to presume that congress had given the matter but little, if any, thought, for the reason that attention had mainly been directed to another act of our legislature.

Neither can it be said that the wisdom of granting to probate courts jurisdiction in actions for divorce was a matter of concern to that body. Neither do we think that in the hasty manner in which the legislature passed the act, had such body ever seriously considered the question of extending to the probate courts jurisdiction in divorce actions. In fact, we believe that the passage of the law by our legislature was unintentional and that the same thing is equally true of congress. But, however that may be, we regard the action of congress as being in the nature of a license to the legislature of this territory; as of not having been intended as a command, but as a permission, and that the law should have no greater effect than a law of our legislature. That congress did not, by ratifying the legislative enactment, place it without the power of such legislature to repeal the same, and this being true, it follo"ws that where the act was repealed, such repeal carried with it the jurisdiction of the probate courts.

Some question may arise in the mind of the lower court as to the proper disposition of this cause when it shall again come before that tribunal; and we deem it proper to state that, in our opinion, § 754, of the Code of Civil Procedure, has a clause which provides that such court may again try this cause. That such court, having had jurisdiction when the action was instituted, has not lost such jurisdiction because the legislature in adopting the present code also incorporated a saving clause in the section referred to which is broad enough to permit the court below to proceed until the final determination of this action.

The judgment of the lower court is reversed and the cause remanded for rehearing.

All Justices concurring except: