Sections 1639-7 and 1639-16, General Code, are sections of the Juvenile Court Code, now designated as Sections 1639-1 to 1683-33, inclusive, General Code.
The Juvenile Court Code contains detailed provisions for the exercise by the Juvenile Court of the jurisdiction conferred upon it concerning any child who is delinquent, neglected, dependent, or crippled.
Section 1639-30 specifically authorizes the court, upon finding that a child is delinquent, neglected, dependent, or otherwise within the provisions of the Juvenile Court Code, to place such child on probation or under supervision of its own home or in the custody of a relative or other fit person, upon such terms as the court shall determine.
There are no provisions of the Juvenile Court Code *Page 112 or of the Probate Court Code concerning the exercise by the Juvenile Court of the jurisdiction apparently conferred upon it by subsection 2 of Section 1639-16, General Code, to determine the custody of any child not a ward of another court, or prescribing any class or classes of cases upon which such jurisdiction may operate. Nor are there any class or classes of cases prescribed in the General Code upon which such apparent grant of jurisdiction may operate. Nor are there any conceivable class or classes of cases upon which such apparent grant of jurisdiction may operate.
The effect of Sections 8032, 8033 and 8034, General Code, prescribing, among other things, that when parents are living separate and apart from each other, or are divorced, and the question as to the care, custody and control of the offspring of the marriage is brought before a court of competent jurisdiction in this state, the parents shall stand upon an equality as to the care, custody and control of such offspring, so far as it relates to their being father or mother, and further prescribing the rules applicable to awarding such care, custody and control, is to abrogate the rules of the common law giving the husband a superior right to custody. Such sections are applicable only to the award of the care, custody and control of the children of the parents in cases for alimony only, as prescribed in Sections 11997 and 11998, General Code, and in cases of divorce, as prescribed in Section 11987, General Code.
If subsection 2 of Section 1639-16, General Code, apparently conferring exclusive jurisdiction on the Juvenile Court to determine the custody of a child not the ward of another court, is construed to be a grant of jurisdiction and not a limitation on the jurisdiction conferred in subsection 1 of the section, it would be necessary in every case where the husband *Page 113 and wife were separated and not divorced and there were offspring of such marriage, for the parent seeking custody of such children, and either alimony or divorce, to have the custody of the children determined by the Juvenile Court, and then in a separate action in the Common Pleas Court have the support of such children, and either alimony, or divorce and alimony, decreed.
In the absence of definite statutory provisions to this effect it is impossible to conceive that this was the legislative intent in the enactment of this subsection.
As there is no class or classes of cases upon which the jurisdiction apparently conferred on the Juvenile Court by this subsection may operate, it is impossible to construe it as a grant of jurisdiction. To do so would make the subsection wholly meaningless.
"Every part of a statute must be viewed in connection with the whole, so as to make all its parts harmonize, if practicable, and give a sensible and intelligent effect to each. It is not presumed that the legislature intended any part of a statute to be without meaning." 2 Lewis' Sutherland Statutory Construction (2 Ed.), 919.
As a subsection does not constitute a grant of jurisdiction, to give it effect it must be construed as a limitation of the jurisdiction conferred by subsection 1 of Section 1639-16, General Code. So construed, jurisdiction is conferred on the Juvenile Court concerning any child who is (1) delinquent, (2) neglected, (3) dependent, or (4) crippled, to be exercised in the manner prescribed by the Juvenile Court Code, but limited by such subsection 2 to the determination of the custody of a child only in cases where the child is not a ward of another court. Such determination does not preclude the Juvenile Court, upon finding *Page 114 that a child is delinquent, neglected, dependent, or otherwise within the provisions of the Juvenile Court Code, from proceeding as provided in Section 1639-30, General Code, except that in cases coming within the limitation mentioned the court is without jurisdiction to place the child in the custody of a relative, or other fit person, as prescribed in subsection 1 of Section 1639-30, General Code, or to commit such child to a private institution or agency incorporated under the laws of the state, approved by the State Department of Public Welfare, and authorized to care for children or place them in suitable family homes, as prescribed in subsection 2 of Section 1639-30, General Code.
At the time of the decision in the case of Cleveland ProtestantOrphan Asylum v. Soule, 5 Ohio App. 67, decided in 1915, there was no statutory provision similar to subsection 1 of Section 1639-16, General Code, conferring jurisdiction on either the Juvenile Court or Common Pleas Court. This subsection was added to the statutes conferring jurisdiction on the Juvenile Court, in 1937, after the decision in the Soule case. It is probable that the Legislature enacted this subsection having in mind the law as established by this case and making it statutory.
The law as established by the Soule case is, in my opinion, incorrect, as the decision in the Soule case is based on a holding of the Supreme Court to the general effect that where a husband and wife are divorced and the Court of Common Pleas granting the divorce also awarded the custody and control of the children of the marriage to either of the parents, such children become the wards of that court, and the jurisdiction of that court over their custody and control is a continuing jurisdiction, and such decree for the custody and control of the minor children cannot, as between the parties, be affected by the *Page 115 appointment of a guardian by a Probate Court, nor does any other court, by a proceeding in habeas corpus, acquire any jurisdiction other and further than to enforce the decree so rendered.
It will be noted that the holdings of the Supreme Court, relied on in the decision in the Soule case, apply only to changes in custody of children through guardianship proceedings, or by way of proceedings in habeas corpus, and that none of the decisions upon which the decision in the Soule case is based, in any way relate to the jurisdiction of the Probate Court, acting as a Juvenile Court, to award the custody of a minor child in dependency proceedings properly instituted before it, where the custody of such child had previously been awarded by a Common Pleas Court in a divorce case pending before it, and consequently that none of the decisions upon which the decision in the Soulecase is based support the decision of the court.
It would appear clear that as dependency proceedings in Juvenile Court are on behalf of the state and the paramount issue in the same is the welfare of the child, an action in the Common Pleas Court determining the custody of the child, as between the parents, should not have precluded the Juvenile Court from exercising its jurisdiction to determine the custody as a remedy in dependency proceedings.
But be that as it may, the amendment of the statutes relating to the jurisdiction of the Juvenile Court, by the enactment of subsection 2 of Section 1639-16, General Code, precluded the Juvenile Court from awarding the custody of the minor child of Carmen Maize McFadden the plaintiff herein, to Mary E. Kendall the maternal grandmother of the minor child, and the Common Pleas Court did not err in so holding and its judgment, in my opinion, should be affirmed. *Page 116