NOT VESTED WITH GENERAL JURISDICTION.

Court of Appeals for Hamilton County.

#### Rendigs, Commissioner of Buildings, et al. v. Devou.*

Decided, November 24, 1919.

*Insolvency Court not Given General Equitable Jurisdiction*— May *not Enjoin Enforcement of an Order for Vacation of Buildings.*

1. The court of insolvency of Hamilton county, being a regularly and legally established court of record,' its judgments are subject to review by the court of appeals under Article IV, Section 6 of the Ohio Constitution of 1912.

2. The court of insolvency of Hamilton county is not vested with general equitable jurisdiction in injunction eases, and is without jurisdiction to hear and determine injunction proceedings brought to restrain the commissioner of buildings from enforcing an order for the vacation of certain buildings.

*Saul Zielonka,*City Solicitor, and *Dennis J. Ryan,*Assistant City Solicitor, for plaintiffs in error.

*Crosley & Rogers,*for defendant in error.

*

Motion to require the Court of Appeals to certify its record in this case overruled by the Supreme Court, April 26, 1920.

Hamilton, J.

Heard on error.

Defendant in error instituted a proceeding in the court of insolvency of Hamilton county to restrain the commissioner of buildings and the chief of police from enforcing an order for the vacation of certain buildings, the property of the defendant in error, which the building commissioner claimed to be unsafe and unsanitary, which order the defendant in error refused to comply with, challenging the constitutionality of the ordinance of the city of Cincinnati providing for the regulation of tenement houses and other buildings. The plaintiff in error, defendant below, demurred to the petition on the *258ground that the court of insolvency had no jurisdiction of the subject of the action. The demurrer was overruled, and, the defendant below declining to plead further, judgment was entered for plaintiff below, from which judgment error is now prosecuted.

Defendant in error moves to dismiss this proceeding in error for the reason that the first sentence of paragraph 10 Sec. 1637, G. C., is unconstitutional in attempting to confer authority on this court to review on error the decision of the court of insolvency. The motion to dismiss and the error proceeding were presented at the same time and both questions are submitted for consideration. We will first consider the motion to dismiss the proceeding in error.

Jurisdiction to review a judgment is not conferred by paragraph 10, Section 1637, General Code. The authority for such review is provided by Art. 4, Sec. 6, of the Constitution, as follows:

> “The courts of appeals shall have original jurisdiction in quo warranto, mandamus, habeas corpus, prohibition and procedendo, and appellate jurisdiction in the trial of chancery cases, and, to review, affirm, .modify or reverse the judgments of the courts of common pleas, superior courts and other courts of record within the district as may be provided by law and judgments of the courts of appeals shall be final in all cases, except,” etc.

The supreme court of Ohio in *Cincinnati Polyclinic*v. *Balch,*92 Ohio St., 415, held that the general assembly has no power to enlarge or limit the jurisdiction conferred by the constitution of the state. This provision of the constitution specifies “other courts of record within the district.” The insolvency court of Hamilton county, being a court of record within the district, is sufficient authority for the review of this case.

It is argued by counsel in support of the motion that if the error proceedings are entertained it vrould do violence to Art. 2, Sec. 26, which provides that all laws of a general nature must have a uniform operation throughout the state.

*259It is further argued that the power conferred under Art. 4, Sec. 6, to review, is only conferred in accordance with the provision of Section 26; that there are but two courts of insolvency in Ohio, found only in Hamilton and Cuyahoga counties. and that they are not therefore within the provisions of Art. 2, Sec. 26. We do not think this position is tenable. The jurisdiction to review, affirm, modify or reverse the judgments of the courts of common pleas, etc., is contained in and limited to Art. 4, See. 6. Section 26 has to do only with acts of the legislature. The legislature by law established the insolvency court of Hamilton county, and the constitutionality of that law was upheld in the ease of *State*v. *Archibald,*52 Ohio St., 3. The insolvency court of Hamilton county being a regularly and legally established court of record, its judgments are subject to review under Art. 4, Sec. 6, and the motion to dismiss the error proceeding will be overruled.

The question remaining is: Did the court err in overruling the demurrer and entering judgment for the plaintiff below? This involves the question whether or not the court of insolvency is vested with general equitable jurisdiction in injunction oases. If the court is not so vested, it would be without power to enter the judgment in this ease. It is argued by counsel for defendant in error that, the insolvency court-had authority to hear and determine this cause under paragraph 10, Sec. 1673 G. C., the provisions of which are as follows:

> “10. Appeals may be taken to the court of appeals from orders, decrees and judgments, in such cases, and error may be prosecuted in the court of appeals in the manner and to the extent provided in such cases respective^- when pending in the court of common pleas. All laws giving authority to issue injunctions, and regulating the practice in the common picas court in such cases prescribing the form and effect of its orders, decrees and judgments, and authorizing and directing the execution thereof, shall be held to extend to the court of insolvency.”

It is claimed that under this paragraph general equity powers in injunction eases are conferred upon the insolvency *260court; that the intention of the legislature as conveyed by the last part of paragraph 10 is to give the court of insolvency the power granted to the common pleas court in ail injunction matters.

It is claimed that in the wording of the paragraph, “all laws giving authority to issue injunctions, and regulating the practice in the common pleas court *in such cases*prescribing the form and effect,” etc., the phrase *in such cases*means injunctions, or might be read “and regulating the practice in the common pleas court in injunction eases.” We dlo not think the section will bear that construction. The insolvency court is a court of limited jurisdiction and possesses only such powers as are conferred by statute, and such equity powers as are necessarily incident to the execution of such powers. The powers conferred are contained in the first nine paragraphs of Section 1637. Then follows the paragraph which defendant in, error claims to confer general equity powers. The section is to be construed as a whole. Paragraph 10 undertakes to provide for the procedure of the court with reference to the powers granted in the nine preceding paragraphs. No injunctive power is conferred by the law. The court could only grant .such preliminary injunctions, in the exercise of its powers granted under the preceding paragraphs as are necessary for the execution of such powers. Bearing in mind that cases might arise in the exercise of the powers granted, which would require the use of the extraordinary power of injunction to give effect to its judgments, the legislature sought in paragraph 10 to provide for the procedure under those circumstances, none having been provided for in the preceding nine paragraphs. Recognizing the authority to issue injunctions by the court of insolvency, as above stated, the legislature provided how this extraordinary remedy might be exercised. The latter part of the paragraph, that all laws giving authority to issue injunctions *in such cases,*refers to the nine preceding paragraphs, just as does the same phrase in the first sentence of paragraph 10, In other words, while at common law *261the court of insolvency may have sufficient authority to invoke the extraordinary remedy of injunction, in exercising the powers conferred upon it, the legislature out of abundant precaution has prescribed that in the exercise of those powers it shall be guided by the rules and practice of the court of common pleas in such cases.

Tt follows that the court of insolvency was without jurisdiction to hear and determine this ease, and for that reason was without power to grant the injunction.

The injunction will be dissolved and judgment may be entered here sustaining the demurrer to the petition, and dismissing the petition for want of jurisdiction of the court of insolvency.

Shohl and Cushing, JJ., concur.