
    The State, ex rel. Sparks et al., v. Weber, Judge.
    (Decided January 12, 1933.)
    
      Mr. Lionel Levy, for relators.
    
      Mr. B. B. Swarisbaugh and Messrs. Fraser, Hiett, Wall & Fffler, for respondents.
   Williams, J.

This is an action in prohibition originally begun in this court, and the relief sought is a writ of prohibition restraining B. E. Weber, judge of the Police Court of the village of Ottawa Hills, Ohio, from making an order or proceeding any further in a civil action in which Browning-Zahrle, Inc., is plaintiff, and the relators, Harold A. Sparks and Anne B. Sparks, are defendants, and in which the plaintiff is seeking to recover upon a promissory note for the payment of $240. The amount involved is such that it is within the jurisdiction of a justice of the peace.

The cause is submitted on the pleadings, and the question presented is whether or not an act to establish a Police Court in the village of Ottawa Hills, Lucas county, Ohio, passed April 10, 1931, approved May 1, 1931, and filed in the office of the Secretary of State May 5, 1931, confers upon the Police Court of Ottawa Hills the jurisdiction in civil actions formerly exercised by the justice of the peace in Ottawa Hills township. The act establishing the Police Court in the village of Ottawa Hills, the territorial limits of which are co-extensive with those of Ottawa Hills township, bestows upon it appropriate jurisdiction in criminal matters. With the extent of that jurisdiction, we are not concerned. The only provisions of the act that bear upon the question whether such jurisdiction in civil actions was conferred upon the Police Court is found in the following sections:

Section 14694-6, G-eneral Code:

“The judge shall have the right to perform marriage ceremonies, take acknowledgments of deeds and other instruments, administer oaths, and perform any other duty now given or that may be conferred upon justices of the peace. All fees, including marriage fees, earned by a police judge by virtue of this section, when not connected with any cause or proceeding pending in the police court, shall be collected by and belong to the judge so earning said fees.”

Section 14694-9, General Code:

“The police court shall be the successor of the justice court of Ottawa Hills township, Lucas county.” Section 14694-10, General Code:
“Upon the qualification of the police judge, the jurisdiction of the justice of the peace in Ottawa Hills township in all criminal and civil matters shall cease and the office of justice of the peace and constable shall be, and the same is hereby abolished.” (Italics ours.)

Counsel for relators contends that “in construing grants of power to inferior courts of limited jurisdiction, or courts not proceeding according to the course of common law, nothing is to be held as granted by implication which is not necessary to the full exercise of the powers expressly granted, and such courts are confined strictly within the limits of the powers granted.” There is ho reason for quarreling with this rule, for, in construing the sections of the General Code quoted above, this court shall not go beyond the powers expressly granted by the act. There is another rule which is of vital concern in determining the meaning of the provisions under scrutiny. It is found in the fourth paragraph of the syllabus of Cochrel v. Robinson, 113 Ohio St., 526, 149 N. E., 871:

“In the construction of a statute the primary duty of the court is to give effect to the intention of the Legislature enacting it. Such intention is to be sought in the language employed and the apparent purpose to be subserved, and such a construction adopted which permits the statute and its various parts to be construed as a whole and give effect to the paramount object to be attained.”

In fine, the act takes away the jurisdiction of the justice of the peace in Ottawa Hills township, both civil and criminal, and abolishes the offices of justice of the peace and constable within that township, and establishes a Police Court, and makes that Police Court the successor of the justice court, and requires that the judge of the Police Court shall “perform any other duty” now given or that may be hereafter conferred upon justices of the peace, in addition to performing marriage ceremonies, taking acknowledgments of instruments and administering oaths. It is evident that the paramount object sought to be obtained by the Legislature, as shown by the intention expressed in the language employed in .the act, was to abolish entirely the office of justice of the peace within the township, and to create a Police Court as a successor thereto, which should exercise criminal jurisdiction as therein expressed and perform all the duties which the justice of the peace would have performed if that office had not been abolished. It was the duty of the justice of the peace to try civil actions within the limitation imposed by law, and we must hold that the duty to try civil actions formerly triable by the justice of the peace of Ottawa Hills township. now rests upon the judge of the newly created Police Court.

Counsel for relators makes the contention that the act is unconstitutional. In passing, it is only necessary to say that in our judgment the contention is not well founded.

The writ of prohibition is denied, and the petition dismissed.

Writ denied.

Richards, J., concurs.

Lloyd, J.,

dissenting. The words “duty” and “jurisdiction” are not synonymous in meaning. “Jurisdiction” of a court is the power or authority judicially to hear and determine civil and criminal matters, either or both. “Duty”, when used in relation to “jurisdiction”, is the obligation to exercise, when invoked, the power conferred.

The act of the General Assembly under consideration is found in 114 Ohio Laws, 503, and is entitled “An Act to establish a police court in the village of Ottawa Hills, Lucas county, Ohio.”

Nowhere in the act is the jurisdiction of the court mentioned except in Sections 1 and 2 thereof, designated therein as Sections 14694 and 14694-1, General Code. Section 14694 is entitled, “The police court of Ottawa Hills; jurisdiction. ’ ’ It relates only to offenses under ordinances and misdemeanors. Section 14694-1 is entitled, “Jurisdiction in felonies.” It relates only to the subject recited in the caption. The caption of Section 14694-6, General Code, Section 7 of the bill as passed by the General Assembly, is “Sec. 14694-6. Power of judge to perform marriage ceremonies, take acknowledgments, etc.” “Any other duty” as used in this section patently relates to acts similar to those enumerated, as, for instance, acknowledgment of leases, taking depositions, appointment of township trustee to fill a vacancy, and dispersing persons unlawfully or riotously assembled, and perhaps other ministerial acts. The act establishing the office of justice of the peace recognizes the difference between jurisdiction, powers and duties. Section 1711-1, General Code.

It seems to me, therefore, that nowhere in the act is the court given jurisdiction to hear and determine civil causes, however expedient it may be to so hold. Legislative intention is of no avail unless vitalized by appropriate language, and it would seem more expedient, if the enactment in its present form does not express the legislative intent, to intrust its amendment to the General Assembly, now in session, rather than for a court, considering that as legislatively done which judicial wisdom determines ought to be done, to proceed by strained interpretation to effect the desired amendment.  