Kelley v. State ex rel. Gellner

114 N.E. 255, 94 Ohio St. 331, 1916 Ohio LEXIS 136
CourtOhio Supreme Court
DecidedJune 23, 1916
DocketNo. 15223
StatusPublished
Cited by44 cases

This text of 114 N.E. 255 (Kelley v. State ex rel. Gellner) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kelley v. State ex rel. Gellner, 114 N.E. 255, 94 Ohio St. 331, 1916 Ohio LEXIS 136 (Ohio 1916).

Opinion

Matthias, J.

Section 1637, General Code, prior to its amendment February 6, 1914, conferred upon courts of insolvency jurisdiction concurrent with that vested in the court of common pleas in certain matters therein enumerated, which included actions in divorce and alimony. By the act of the legislature passed February 6, 1914, approved February 17, 1914, and filed in the office of the secretary of state February 19, 1914, Section 1637 was amended by adding to paragraph nine thereof the following: “except the court of insolvency in Hamilton county shall not have jurisdiction in actions for divorce and alimony after December 31st, 1914.”

[335]*335The action for divorce here in question was. commenced in the court of insolvency of Hamilton county August 20, 1914, and was heard September 15, 1915, at which time the trial court admonished the parties to become reconciled and continued the case to January 15, 1916.

The application of the relatrix for a writ of prohibition challenges the jurisdiction of the insolvency court of Hamilton county to hear and determine any divorce or alimony case subsequent to December 31, 1914. Although counsel for the relatrix urges, as a further ground for asserting want of jurisdiction of the court of insolvency to hear the divorce case involved in this proceeding, the fact that the petition was filed subsequent to May 14, 1914, that date marking the expiration of the ninety-day referendum period, yet we think it must be conceded that whether the petition was filed before or after May 14, 1914, is entirely immaterial in the determination of the question of the court’s jurisdiction to act upon any such case subsequent to December 31, 1914.

The writ of prohibition is of ancient origin, though the procedure is new in this state, and the nature, purpose and office of such writ have been frequently defined by courts and text-writers. All are in substantial accord in defining it as an extraordinary judicial writ which may be issued out of a court of superior jurisdiction for the purpose of preventing an inferior court or tribunal from usurping a jurisdiction with which it is not legally vested, the object of the writ being to restrain subordinate judicial tribunals of every kind from ex[336]*336ceeding their jurisdiction and to confine them strictly to the exercise of those powers with which they have been by law entrusted. It will be seen, therefore, that if the effect of the amendment to Section 1637, General Code, heretofore set forth, was to deprive the court of insolvency of Hamilton county of authority to hear and determine, subsequent to December 31, 1914, actions in divorce and alimony pending in said court on that date, the exercise of such power thereafter would be unauthorized and beyond the jurisdiction of such court, and therefore warrant the issua.nce of the writ of prohibition as prayed.

But counsel for respondent contends that Section 1637, General Code, as amended, is unconstitutional because it is a law of a general nature not of uniform operation, it applying only to Hamilton county. It was clearly determined, however, in State, ex rel. Atty. Genl., v. Bloch, 65 Ohio St., 370, which decision was followed and applied in the recent case of In re Hesse, 93 Ohio St., 230, that the provisions of Section 26 of Article II of the Constitution have no application to legislation enacted pursuant to the special grant of legislative power contained in Section 1 of Article IV of the Constitution, the evident purpose of such special grant of power being to enable the general assembly to meet the public needs for additional courts, as they might arise in various sections of the state. Having authority to create any such court in any section of the state, as in its opinion was necessary and proper, and define its jurisdiction, the power of the legislature to abolish such [337]*337court or curtail its jurisdiction necessarily follows.

The amended law is constitutional and valid; but does it affect cases pending December 31, 1914? No provision having been made for the transfer of actions still pending and undisposed of on December 31, 1914, from the insolvency court to any other court, and Section 1637, as amended, containing no reference whatever to pending actions, it seems quite clear that the provisions of Section 26, General Code, apply and are determinative of the real question in this case. That section provides that “whenever a statute is repealed or amended, such repeal or amendment shall in no manner affect pending actions, prosecutions or proceedings, civil or criminal, and when the repeal or amendment relates to the remedy, it shall not affect pending actions, prosecutions, or proceedings, unless so expressed, nor shall any repeal or amendment affect causes of such action, prosecution, or proceeding, existing at the time of such amendment or repeal, unless otherwise expressly provided in the amending or repealing act.”

Amended Section 1637 does not become operative until December 31, 1914. In view of this express provision neither the date of enactment nor the date of approval by the governor is material. It is certainly clear that the amended section is of no force or effect until the date therein specified. In the meantime the jurisdiction of the court of insolvency remains as theretofore conferred. Unquestionably it may hear and determine actions for divorce and alimony at any time prior to January [338]*3381, 1915, regardless of the time such actions were commenced. We think that is conceded. No provision is made for the disposition of such cases as then remain on the docket of that court, by transfer to another court or otherwise — no reference whatever to pending actions. The amended section must therefore be read as though Section 26, General Code, were appended to it as a saving clause. Bode, Admx., v. Welch, 29 Ohio St., 19, and Elder v. Shoffstall, 90 Ohio St., 265.

It has been urged that the intention of the legislature that the amended section should affect pending actions is disclosed by the fact that it provided what must have seemed to it a sufficient time for the disposition of pending cases before the withdrawal of jurisdiction in such matters, and also by the fact that on the same date Section 1639, General Code, was amended to provide for a division of domestic relations in the court of common pleas of Hamilton county, in which one of the judges should sit and to whom should be assigned all juvenile court work and all divorce and alimony cases. That section, however, contains no reference to the insolvency court nor any provision af•fecting its jurisdiction. Inferences cannot be substituted for the express provision required. The language of Section 26, General Code, is not that such repeal or amendment shall not affect pending actions, prosecutions or proceedings unless such inference may he gathered from the repealing statute, but it is that such repeal or amendment shall not affect pending actions, prosecutions or proceedings unless so expressed. When, therefore, the intention. [339]*339of the legislature is to give to such repealing or amending act a retroactive effect such intention must not be left to inference or construction, but must be manifested by express provision in the repealing or amending act.

It is well urged by Minshall, J., in the case of State, ex rel. Construction Co., v. Rabbitts,

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Cite This Page — Counsel Stack

Bluebook (online)
114 N.E. 255, 94 Ohio St. 331, 1916 Ohio LEXIS 136, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kelley-v-state-ex-rel-gellner-ohio-1916.