I concur in the conclusion reached by my associates; however, I construe the order of the Court of Common Pleas as an attempt to exercise jurisdiction in prohibition.
"4. The vital distinction between `prohibition' and `injunction' is that injunction operates only upon individuals when used to require a desistance from prosecuting a suit or proceeding, while prohibition runs against the court to require a cessation from the exercise of jurisdiction." Ferguson v.Ferguson, 98 S.W.2d 847.
See also: People, ex rel. Baldwin, v. Goldfogle, Justice, 30 N. Y. Supp., 296; State, ex rel. Radcliff, v. City of Mobile,229 Ala. 93, 155 So. 872; Ferris, Extraordinary Legal Remedies, Section 310, at p. 419.
The order of the Court of Common Pleas was directed, not to the parties litigant in the Municipal Court case of MaryParkison v. George Fike and Fidelity Casualty Company of *Page 206 New York, but to the court as a judicial tribunal. I must conclude, therefore, that the Court of Common Pleas in reality attempted to issue an order of prohibition.
High's Extraordinary Legal Remedies (Second Ed.), Part Second, at Section 763, says:
"Some points of similarity may be noticed between this extraordinary remedial process [prohibition] and the extraordinary remedy of courts of equity by injunction against proceedings at law. Both have one common object, the restraining of legal proceedings, and each is resorted to only when all other remedies for attaining the desired result are unavailing. This vital difference is, however, to be observed between them, that an injunction against proceedings at law is directed only to the parties litigant, without in any manner interfering with the court, while a prohibition is directed to the court itself, commanding it to cease from the exercise of a jurisdiction to which it has no legal claim. An injunction usually recognizes the jurisdiction of the court in which the proceedings are pending, and proceeds on the ground of equities affecting only the parties litigant, while a prohibition strikes at once at the very jurisdiction of the court. The former remedy affects only the parties, the latter is directed against the forum itself."
See also: State, ex rel. The Firestone Tire Rubber Co., v.Duffy, 114 Ohio St. 702, at p. 705, 152 N.E. 656.
The Constitution of Ohio, Article IV, Section 4, says:
"The jurisdiction of the Courts of Common Pleas, and of the judges thereof, shall be fixed by law."
In the case of Stevens v. State, 3 Ohio St. 453, decided a few years after the adoption of the Constitution of 1851, the court said, at p. 455:
"The Constitution itself confers no jurisdiction whatever upon that court [Court of Common Pleas], either in civil or criminal cases. It is given a capacity to receive jurisdiction in all such cases, but it can exercise none, until `fixed by law.'"
This position announced by the Supreme Court of Ohio has not been changed or modified.
In the case of Mattone v. Argentina, 123 Ohio St. 393,175 N.E. 603, the court, in the syllabus, said:
"1. In this state, pursuant to constitutional provision, Article *Page 207 IV, Section 4, the jurisdiction of the Common Pleas Court is fixed by legislative enactment."
See: State v. Belenski (Ninth Appellate District), 20 Ohio App. 141, at p. 143, 153 N.E. 160; Long Allstatter Co. v.Willis, 52 Ohio App. 299, at p. 302, 3 N.E.2d 910;Allen v. Smith, 84 Ohio St. 283, 95 N.E. 829, Ann. Cas., 1912C, 611; Edelstein, Admx., v. Kidwell, 139 Ohio St. 595, at p. 599, 41 N.E.2d 564.
The Supreme Court of Ohio has repeatedly held that the writ of prohibition first came into the jurisprudence of Ohio in 1912, when the Constitution of Ohio was amended.
Judge Wanamaker, speaking for the court, said, in State, exrel. Nolan, v. ClenDening, 93 Ohio St. 264, at p. 269,112 N.E. 1029:
"The writ of prohibition is a writ new to Ohio jurisprudence. It was adopted in 1912 as a part of the judicial article and is found in Section 2, Article IV of the Constitution * * *."
See also: Silliman v. Court of Common Pleas, 126 Ohio St. 338, at p. 340, 185 N.E. 420.
Nowhere in the statute is authority granted to the Court of Common Pleas to issue a writ of prohibition.
This writ is a common law remedy, and, according to Ferris, Extraordinary Legal Remedies, Section 307, was never issued in the United States except by a court of common law jurisdiction.
The Ohio Constitution of 1802, Article III, Section 3, said that the Court of Common Pleas "shall have common law and chancery jurisdiction in all such cases as shall be directed by law * * *."
In the Constitution of 1851, Article IV, Section 4, the jurisdiction provision was changed to read as it is set out,supra. In the constitutional convention of 1912, where the Constitution of 1851 was amended, the jurisdiction provision of the Common Pleas Court was left as it was in the Constitution of 1851.
According to State v. Hayslip, 90 Ohio St. 199,107 N.E. 335, we have no common law writs in Ohio. This pronouncement is in accord with the statement made in Kerwhaker v. Cleveland,Columbus Cincinnati Rd. Co., 3 Ohio St. 172, at p. 178, 62 Am. Dec., 246, wherein the court said:
"The common law, therefore, has no force in Ohio, except *Page 208 so far as it derives authority from judicial recognition in the practice and course of adjudication in our courts * * *."
See also: McAllister v. The Schlemmer Graber Co., 39 Ohio App. 434,177 N.E. 841.
There is no judicial power without jurisdiction, and when a court assumes to act where it has no jurisdiction, its acts are void.
Courts of Common Pleas have been granted specific jurisdiction by Section 2305.01, Revised Code, "in all civil cases where the sum or matter in dispute exceeds the exclusive original jurisdiction of justices of the peace * * *." It is my view that the writ of prohibition, which is known as one of the high prerogative writs, is not a civil action within the meaning of such statute.
It is my conclusion that the Courts of Common Pleas do not have jurisdiction to issue a writ of prohibition.
The order served on the Municipal Court of Akron is a nullity, and the writ sought herein should issue.