Way v. Hillier (16 Ohio 105, 1847)

Hitchcock. J.

The first question which presents itself to the

consideration of the court is, whether wo have jurisdiction or power to make the order sought for. While day after day we hear so much about the encroachments of another branch of government upon the rights of the people, and are so earnestly called upon to restrain by judicial action *the exercise of unconstitutional legislative power, it becomes us to remember that we too are bound by the same constitution which is intended to restrain improper legislativo action. The constitution was made not to 'act upon the legislative department alone, but upon every department of the government. And we must see to it, that while wo attempt to restrain the usurpation of others, we are not guilty of usurpation ourselves. While this court or its members will not shrink from the discharge of any duty enforced upon us, or tho necessary exercise of any power delegated to us, beyond that power we can not go. Nor will we consent to exercise even doubtful power.

Section 1 of article 3 of tho constitution provides, that “ tho judicial power of this state, both as to matters of law and equity, shall be vested in the Supreme Court, in courts of common pleas for each county, in justices of the peace, and in such other courts, as the legislature may from time to time establish.”

In section 2 of the same article, it is prescribed that the Supreme Court, and courts of common pleas, “shall have original and ap-pellate jurisdiction in such cases as shall be directed by law.”

By section 4, criminal jurisdiction is conferred to be exorcised “ in such cases, and in such manner, as may be pointed out by law.”

By section 5, “jurisdiction of all probate and testamentary matters, granting administration and the appointment of guardians,” is vested in the court of common pleas. .

By section 6, it is provided that “the judges of the court of common pleas shall, within their respective counties, have the same power with the judges of the Supreme Court, to issue writs of certiorari to justices of the peace, and to oause their proceedings to bo brought before them,” etc.

By section 7, judges of the Supreme Court are made conservators of the peace throughout tho state—presidents of tho court of common pleas, in their respective circuits, and associate judges of the latter court, in their respective counties.

*By the ninth, the right to appoint its own clerk is secured to each court.

This is all that can be found in the constitution relative to the power or jurisdiction of tho Supremo Court, or court of common pleas. Everything, or almost everything upon this subject, is left to future legislation. The courts, it is true, are created by the constitution. They are by the same constitution made capable of receiving jurisdiction. But that jurisdiction and its extent, and the manner of exorcising it, must be prescribed by the law-making power.

The constitution requires that one term of the Supreme Court shall be held in each county every year; a court so held is the court of the county. Its jurisdiction is confined to the county. Tho name of the court, tho fact that it is the highest judicial tribunal in the state, can not be construed to extend or enlarge its power. The judges of the Supreme Court, while sitting as a court in Franklin county, have no more right to exercise jurisdiction relative to other counties in the state, than has the court of common picas while sitting in the same county.

The general assembly have from time to time, pursuant to their constitutional power, passed laws regulating the powers, practice, and duties of the respective courts, and these laws have been changed as public policy seemed to require. By law, too, duties, to be performed by the individual members of the court, have been prescribed. It is unnecessary to go into an examination of these several statutes. By one, however, it may be proper to say, power is given to a judge of either court to allow an injunction to stay proceedings at law, either before or after judgment, the injunction to be continued until dissolved or made perpetual by the court, in which the bill praying such injunction is filed. I do not find, however, that any such power is delegated to enjoin the execution )f a decree in chancery. We know of no power, possessed by a judge in this state, by his order merely, to stay proceeding either Sueh being the case, we feel that we have no authority to sustain the present motion.

It may bo that the present laws do not furnish sufficient safe- . guards against errors in judicial proceedings. If so, the proper authority can apply the remedy. But it is perhaps a matter worthy of consideration, whether the facility with which, under our present system, judicial proceedings may be, and frequently are delayed, is not fraught with more mischief than benefit. Injunctions are sometimes necessary and proper, but when granted for slight and insufficient causes, they have a direct tendency to pervert justice. The motion is overruled.