The Wichita daily eagle. [volume] (Wichita, Kan.) 1890-1906, 1896-11-17

the supreme court. This feature of the
question, if fully comprehended, would
be as startling revelation TO the coun-
try as the gross frauds practiced in ma
ny cases in obtaining dissolution OF the
marriage contract.
NO FAULT OF COURTS.
In referring to the courts and the
court officers OF the territory 1 wish in
the outset to be thoroughly understood
as entirely exculpating them from the
slightest culpability in any respect with
reference To any matter / may men
ton.
The evil is the result OF the laws enact
ed and not in the execution of them.
/ do not think there is any more incon-
sistency in the procedure and decisions
of the courts there than there would be
in any other state or territory under
the same circumstances. All judges and
courts disagree on questions OF law and
practice, and Oklahoma is no exception
to the well known rule.
On the second day of May, 1890. ter
ritorial form of government was erect
ed by the passage OF congress OF what is
known as the organic act Of the terri
tory. This act bears the same relation
to the territory that the state constitu-
ton does to safe. The Legislature
erected by the people have power under
said act 10 pass laws upon all rightfui
subjects of legislation not inconsistent
with the constitution and laws OF the
United States or not in violation of said
organic act
By said act the judicial power OF the
territory was vested in the supreme
district and probate courts and justices
of the peace. The supreme and districI
courts We're given common law as well
as chancery jurisdiction and authority
for the redress of all wrongs committed
against the constitution and laws or the
United States or of the territory affect
ing persons or property. Probate courts
aud justices Of the peace had Jurisdic-
tional bounds as limited by law.
At the first session of the legislative
assembly certain additional jurisdiction
was sought TO be conferred upon the
probate courts not authorized or COM
pretended by the organic act. The en-
Rctment was presented to congress and
approved by a general ratifyinS clause
that sanctioned all the enactments by
the territorial legislature relating 10 pro-
bate courts, which included the stat
ute comforting divorce jurisdiction upon
that court Under the latter statute
two years residence in the territory In
good faith was required before the pro-
hate courts could entertain jurisdiction
in such cases.
In the chapter on marriage passed by
the same legislature there was stat
ute providing TO ninety days residence
in good faith before instituting the &C
ton for the dissolution OF marriage.
Without any express adjudication or ju-
diciai sanction except common usage,
the district and probate courtSSassum-
ed Jurisdiction under the ninety-day stat
ute, and from early in 1890, when the
legislative enactments went into effect,
10 September 1894, divorces were grant
ed in great numbers. TO what amount
/ would not undertake to say, as before
stated.
In the winter oflSs3 the second legis-
lative assembly attempted TO repeal the
statute comforting jurisdiction on the
probate courts and giving exclusive and
original jurisdiction OF the district
courts and providing by plain and ex-
press statute ninety days residence.
The question that at once arose as to
whether the territorial legislature could
repeal the statute after il had been rat
flied by an act OF congress, and the hon.
orable chief Justice OF the territory de-
cided in a case at Chambers, on an ap-
plication for writ of prohibition prohib
ting the probate court OF Oklahoma
county, from exercising jurisdiction in
case pending in said court. that after
che ratification by congress the terrific
rial assembly had no pewer to repeal
the statute. and the writ was thereuPon
denied and the jurisdiction OF the pro-
bate court upheld.
This was accepted at the time as ju
dicial precedent, and the probate courts
continued to exercise divorce jurisdic-
ton until the supreme court in Septem-
Der, 1894. in the case of Irwin We. Irwin.
.. Oklahoma $50. held contrary 90 Chief
Justice Green, deciding sqcusrely that
the probate court had lost its jurisdic-
ton by the repeating act passed as afore-
said.
When this case was decided by the
supreme court i was then a member OF
che bench, and dissented from the ma
jority opinion. not on the ground that
the probate court had lost Jurisdiction.
but on account OF the reasoning adopted
BY the court relative 10 the ratifying
clause by congress Icing rezarded as
in the nature OF Permissivt legislation
not binding the ratified enactment upon
the territory any longer than the legis-
Iatu-e desired In other words, the opin
ion Of the court sought 20 treat the con-
grsssionai ratification as p>rmiss.ve
statute when Il was clearly remedial
I took the further position that d
vorce jurisdiction was a rightful sub
Ject OF legislation within the terms OF
the organic act. and that II the jurisdic-
ton had been taken away from the pro-
bate courts at all 4; was By reason OF
that fact and that the statute needed
no ratification. and not the one set Forth
in the majority opinion
THE POWER LEGISLATIVE
In September. 1895. q year aftsrNsrd.
the supreme court. on rshea-.ng IN TIE
same case, q. Oklahoma 1859 wSiie
holding 10 its former conclusion deny
ing jurisdiction. reversed us reasoning
end declared tha, the power 70 TegH-
!aee matters OF divorce was Isgis.at-
i've one. and tina; the cozfe-ri1g q tu-
risdictso1 up-oa probate courts 20 grant
divorces vas not q wrongful sxe-cise %
the right granted By the organic act q
he legislature .. rnst territory 20 pass
enactment upon righrfal subjects q leg
;slatEar- 1aat -ae zcs % Iezsslztio1 %
1888 giving probate cosr.s jurisdiction
20 entertain actt51s of divorce Ds~ied
70 ratification by cong-eEs. AM tnz- ~
act OF congress s15EesErS-'sy Isass<c zp-
proving re territorial legislative sTlscf-
z1ents granting jurisdiction % probate
courts dss noz take away TIE rIgat %
~ legislature % s-iH further make reg
r,iztfons respecting froTce proceedings
nor IT, ri~at - rF2ss! rs oED enscf-
zser.s granting . probate courts ta-ts-
ssrtior n divorce czs@s-
The former co1ciuss1r os tire co1-f O.
the question IL <he case O. tie s1rt-rT
CO The sezs-zl .artst!ct-9r .. tAe Pr