jurisdiction of justices of the peace; also the jurisdiction to try and determine causes when the same were for the recovery of money or personal property and the amount or value thereof did not exceed the sum of $1,000. co-ordinate with the district court. It also enacted a chapter of 73 pages defining the jurisdiction and procedure of probate courts with reference to the estates of decedents and the appointment of guardians for and the control of the estates of insane and otherwise incompetent persons. It also granted such courts the power to take testimony in certain instances in land-contest cases. Will it be contended that the legislature might not repeal the provisions of such of these enactments as were valid without any ratifying act of congress? Did the legislature lose its right to repeal or amend the extensive chapter defining the jurisdiction and procedure of the probate courts in the matter of the estates of deceased persons and the guardianship of minors and of the insane merely because the general ratification of these laws relating to probate courts also included this chapter? Did congress, in the ratifying act, mean to give life and validity to those of these acts which were void without such ratification, and also to take away the power of the legislature to repeal such valid enactments as were valid without congressional ratification? We think not. If the power of the legislature to withdraw from probate courts the jurisdiction conferred in divorce cases did not exist because of the congressional ratification, then it is equally true that the power did not exist to repeal these other laws, which had been passed within the rightful grant of legislative power, but which had been ratified by act of congress. We think the ratifying act of congress was only intended to give life and validity to such acts as would not be valid without congressional ratification, and did not intend, in addition thereto, to in any way affect the acts of the territorial legislature relating to probate courts, which it might have passed without authority of congress. It did not mean to take away any of the power granted by the organic act to legislate upon "all rightful subjects of legislation." This act of congress was a grant of validity to, and not a restraint upon, the power and exercise of power by the legislature, and the words used being words of approval and not of restraint, and there being several enactments to which it might by its general terms have applied, part of them requiring an act of congress to give life to the same because of the legislative inability to enact such provisions without such ratification, and part of them requiring no act of congress to make them valid, it cannot be presumed or held that such words of approval could have meant to apply to any other of the legislative provisions than those which required ratification, and cannot be construed to limit a broad congressional

grant of legislative power which had been in no way exceeded. If the legislature had a right to legislate with reference to the granting of divorce before this approving act of congress, it still possessed it afterwards, and if it had a right to grant to the probate courts power to grant divorces for statutory causes, it still possessed the right, after this congressional enactment, to take it away; and having by its own provisions taken away the power prior to that granted by it to the probate courts, of course the probate courts do not now possess the power conferred upon them to grant divorces. The latter part of article 16, c. 19, St. 1890, which is the article extending to probate courts the power to hear and determine actions for the recovery of money or personal property where the value thereof does not exceed the sum of $1,000, in the same manner and under the same procedure as provided for the justice and district courts, by its very provisions recognizes the fact that it could not be enforced until ratified by act of congress, for It says: "This act shall be in force and take effect from and after its adoption and legalization by act of congress;" and it is but fair to presume that the attention of congress, as exhibited by the act of ratification in question, was called to Oklahoma affairs by this expression of the Oklahoma legislature, and it wished to give effect to its enactments rather than to circumscribe any of its powers. The placing of the divorce laws of Nebraska in force in this territory was not a perpetual grant of jurisdiction to the district courts of this territory to grant divorces, for this very act of congress provided that this very divorce law and the other laws referred to in the same section "are hereby extended to and put in force in the territory of Oklahoma until after the adjournment of the first session of the legislature of said territory." 26 Stat. 87. This divorce law of Nebraska was not only not put in force as a permanent enactment, but this very congressional action recognizes the principle that divorces are a proper subject of the exercise of legislative power; otherwise, congress would certainly have made not a temporary, but a permanent, statute on this subject. The power given by section 11 of the organic act, by which the Nebraska statutes were put in force in this territory, to the courts of this territory to enforce such laws, has already been held by this court to exist only so long as the Nebraska statutes existed in this territory, and not to mean that such enactments or such jurisdiction as given by the Nebraska statutes were to be permanent in their enforcement. Collier v. Territory (Okl.) 37 Pac. 819.

Our conclusion that the regulation and granting of divorce are rightful subjects of legislation is amply supported by authority. The subject is very ably considered and reviewed in the supreme court of Utah by Emerson, J., in the case of Whitmore v. Hardin,

3 Utah, 121, 1 Pac. 465, where the former opinion of that court in the case of Kenyon v. Kenyon, 24 Pac. 829, not officially reported, was approved, and the case of Cast v. Cast, 1 Utah, 112, overruled, and where the court held that an act of the legislature which granted to probate courts in that territory power to hear and determine causes for divorce was valid. In the case of Maynard v. Hill, 125 U. S. 190, 8 Sup. Ct. 723, the supreme court of the United States had occasion to consider this question, and in a very able opinion, by Mr. Justice Field, it appears that on December 22, 1852, the legislature of the territory of Oregon, under a grant of legislative power identical in substance with that granted by congress to the legislature of this territory, granted a divorce to D. S. Maynard from Lydia A. Maynard, his wife, and this act of the legislature was held valid, and as being only a proper exercise of the grant of power given to the legislature to legislate upon "all rightful subjects of legislation." In the opinion the learned judge says: "When this country was settled, the power to grant a divorce from the bonds of matrimony was exercised by the parliament of England. The ecclesiastical courts of that country were limited to the granting of divorces from bed and board. Naturally, the legislative assemblies of the colonies followed the example of parliament, and treated the subject as one within their province. And until a recent period legislative divorces have been granted, with few exceptions, in all the states. Says Bishop in his treatise on Marriage and Divorce: "The fact that, at the time of the settlement of this country, legislative divorces were common, competent, and valid in England, whence our jurisprudence was derived, makes them conclusively so here, except where an invalidity is directly or indirectly created by a written constitution binding the legislative power.'

Section 664. Says Cooley, in his treatise on Constitutional Limitations: "The granting of divorces from the bonds of matrimony was not confided to the courts of England, and from the earliest days the colonial and state legislatures in this country have assumed to possess the same power over the subject which was possessed by the parliament, and from time to time they have passed special laws declaring a dissolution of the bonds of matrimony in special cases.' Page 110. Says Kent in his Commentaries: 'During the period of our colonial government, for more than 100 years preceding the Revolution, no divorce took place in the colony of New York, and for many years after New York became an independent state there was not any lawful mode of dissolving a marriage in the lifetime of the parties but by a special act of the legislature.' 2 Kent, Comm. 97." The learned judge then proceeds in the opinion to review the decisions of the supreme courts of the states of Pennsylvania, Maryland, and Connecticut supporting the holdings of the court, and also the decisions of the supreme

court of Massachusetts expressing contrary views, and then says: "The weight of authority, however, is decidedly in favor of the position that, in the absence of direct prohibition, the power over divorce remains with the legislature. We are, therefore, justified in holding-more, we are compelled to hold-that the granting of divorces was a rightful subject of legislation, according to the prevailing judicial opinion of the country, and the understanding of the profession, at the time the organic act of Oregon was passed by congress, when either of the parties divorced was at the time a resident within the territorial jurisdiction of the legislature." These decisions by Justice Field and by Justice Emerson are so full, complete, and exhaustive as to leave but little more to be said, and no room for argument, on this question, and the views therein expressed meet our entire approval.

Upon the general proposition that the power to grant divorces does not pertain to either a court of law or of equity, without a statute giving power to such courts, we cite the case of Hopkins v. Hopkins, 39 Wis. 167, which was decided before and not referred to in either of the above cases. In this case the court said: "It is a general principle of the law of divorce of this country that the courts, either of law or equity, possess no powers except such as are conferred by statute; and therefore authority for the action of the court in that class of cases must be found in the statute, and cannot be looked for elsewhere." The decision of the case of Ferris v. Higley, 20 Wall. 375, is not opposed to the view of the question as taken in Whitmore v. Hardin or Maynard v. Hill. In this case the supreme court of the United States held that an act of the legislature of the territory of Utah, which granted original jurisdiction to the probate courts both in civil and criminal actions, and as well in chancery as at common law, was in violation of the delegation of legislative authority given to the legislature of the territory of Utah, and was an infringement upon the power expressly given by the organic act to the district and supreme courts of Utah, and was therefore void. In the case the court said: "The common-law and chancery jurisdiction here conferred on the district and supreme courts is a jurisdiction very ample and very well understood. It includes almost every matter, whether of civil or criminal cognizance, which can be litigated in a court of justice.” The learned judge then proceeds to trace, in a brief but comprehensive manner, the history of probate courts, and the usual scope of their authority, and concludes: "They were not in England considered, originally, as courts of record, and have never, in either that country or this, been made courts of general jurisdiction, unless the attempt to do so in this case be successful." But the court nowhere in that case holds that the legislature had not the right to impose upon

probate courts additional duties, burdens, and jurisdictions which did not infringe in any way upon the grant of judicial authority given to the other courts of the territory. On the contrary, it is expressly stated: "There may be cases when that legislature, conferring new rights or new remedies, or establishing anomalous rules of proceedings within their legislative power, may direct in what court they shall be had. Nor are we called upon to deny that the functions and powers of the probate courts may be more specifically defined by territorial statutes within the limit of the general idea of the nature of probate courts, or that certain duties not strictly of that character may be imposed on them by that legislation." This language or holding is in no way disapproved of in the subsequent case of Maynard v. Hill. In fact, in this latter case it is not even referred to as being opposed to the position there taken. The supreme court of Utah, when passing upon this question, evidently had this case of Ferris v. Higley before it when considering this subject, for the opinion in Whitmore v. Hardin says: "It was within the legislative power of the territorial legislature, not only to declare what should be grounds for a divorce, but to name the probate courts as the proper courts in which proceedings should be taken to procure one. The right of these to exercise this jurisdiction is not denied by either the language or reasoning of Ferris v. Higley, 20 Wall. 375."

Congress as late as July 30, 1886, by an act of that date contained in 1 Supp. Rev. St. U. S. p. 503, expressly recognizes this doctrine, that the granting of divorces is a rightful subject of legislation for territorial legislatures; for an act of congress that day passed recognizes not only the fact that territorial legislatures possessed the right to grant divorces, but that they possessed it to an extent of its most vicious exercise,that is, to grant divorces in individual cases; to grant them by a local, special, or individual act, such as had been done in the Maynard Case. The first part of the first section of this act provides: "That the legislatures of the territories of the United States, now or hereafter to be organized, shall not pass local or special laws in any of the following enumerated cases, that is to say: granting divorces. * * *" This is a statutory prohibition that congress would undoubtedly not have passed without a clear understanding that the legislatures of the territories did possess the power to grant divorces, and did that only to prohibit the legislature from granting them by local and special enactment, leaving still reposed in the legislature the right to grant them by an act not prohibited by this statute, that is, by a general and uniform law. It is worthy of note that the case of Maynard v. Hill was decided by the supreme court in March, 1888, less than two years after this act of congress referred to was

passed, and that this legislative construction by the supreme lawmaking power of the land was expressly approved by the supreme judicial tribunal of the country within two years after it was made. This case was decided, and the judgment which the supreme court affirmed was filed in the supreme court of Washington territory, at the July term, 1884 (see 5 Pac. 717), and was no doubt pending in the supreme court of the United States when this act of congress of July 30, 1886, was passed; and it would not, therefore, be resorting to imagination to infer that congressional attention was called to the matter by this very case, in which such an unnatural advantage had been taken of the absent wife by the husband.

The position taken by a majority of this court is that, under the acts of the legislature of this territory of 1890, the probate courts had jurisdiction to grant divorces by proceedings had under section 4966 of the Statutes of Oklahoma of 1890, but that, subsequent to August 14, 1893, such jurisdiction has not existed, because this jurisdiction, so given to the probate courts, was repealed by the provisions of the Civil Code, which took effect that day. The decision of the court heretofore rendered is therefore modified in accordance with these views, and the cause remanded, with directions to the court below to sustain the motion of the defendant to dismiss the action unless proper amendments are made to the petition and the affidavit within a reasonable time. The other questions raised against the validity of the orders of the court below it is not necessary for us now to examine, as our holding is a reversal of all of the final determinations made in the action in the court below.

BURFORD and MCATEE, JJ., concur.

DALE, C. J. I agree with the conclusions arrived at in this opinion, but do not agree with the reasons stated for them, but adhere to the decision heretofore rendered by this court in Irwin v. Irwin, 37 Pac. 548.

(3 Okl. 395)

BATTICE v. BATTICE. (Supreme Court of Oklahoma. July 27, 1895.) DIVORCE-PROBATE COURTS-JURISDICTION. Since August 14, 1893, probate courts in this territory have had no jurisdiction to hear and determine divorce proceedings.

(Syllabus by the Court.)

Appeal from probate court, Lincoln county. Action by Walter Battice against Rosa Battice for divorce. There was a judgment for plaintiff, and defendant appeals. Reversed. L. E. Payne and H. R. Thurston, for appellant. H. G. Stewart, for appellee.

BIERER, J. On the 17th day of March, 1894, the defendant in error brought his ac

tion in the probate court of Lincoln county for a divorce against plaintiff in error, and after issues were made in the case a trial was had on the 18th day of April, 1894, and a decree of divorce was granted defendant in error, from which decree plaintiff in error appeals. Only one question is necessary for our consideration, and that is as to the jurisdiction of the probate court in such cases. In the case of Irwin v. Irwin (Okl.) 37 Pac. 548, and in the opinion upon the rehearing of that case (41 Pac. 369), it is held by this court that in this territory, since August 14, 1893, the probate courts have no jurisdiction to hear and determine causes for divorce. This action having been brought in the probate court since August 14, 1893, the court below was entirely without jurisdiction, and the judgment of the probate court is reversed, with directions to dismiss the cause of the defendant in error there. All the justices concurring.

(3 Okl. 388)

UHL v. IRWIN et al.

(Supreme Court of Oklahoma. July 27, 1895.) DIVORCE-JURISDICTION OF PROBATE COURT-SUFFICIENCY OF COMPLAINT INJUNCTIONCOLLATERAL ATTACK-ALIMONY.

1. The same complaint is before the court in this case which was before the court for consideration in the case of Irwin v. Irwin (Okl.) 37 Pac. 548, and, on rehearing, 41 Pac. 369; and the conclusions there reached are followed in this case, and it is held: First, that on January 14, 1893, probate courts had jurisdiction to hear and determine actions for divorce; second, that the complaint for a divorce in a probate court must show that the plaintiff had been a resident of the territory for two years, and of the county six months, next preceding the date of the filing of the complaint, but, if the complaint stated that the plaintiff had been a resident of the territory six months, and was then a resident of the county, the plaintiff might amend her complaint, and the defect in the complaint would not entirely deprive the probate court of jurisdiction of the cause; third, that a complaint for divorce which charged that the defendant had been guilty of cruel and inhuman treatment towards the plaintiff, and alleged facts showing that the defendant had slapped the plaintiff, and had violently cursed and abused her, and that he had failed and refused to provide for plaintiff and her children, was sufficient to give the probate court jurisdiction to hear her cause for divorce, upon the statutory ground of extreme cruelty.

2. It is not necessary that the complaint in divorce proceedings under the Code of 1890 should allege the facts entitling plaintiff to a restraining order, or pray for a restraining order against the defendant to prevent the disposition of his property in fraud of the plaintiff's rights; but those facts may be set up in the affidavit asking this auxiliary relief, without being stated in the complaint.

3. Where, in a divorce proceeding, a restraining order has been properly granted, commanding the defendant not to dispose of his property pending the action for divorce, such order is operative upon all persons having notice of the granting of such order, although the order and the return of service may be lost or removed from the files of the court.

4. A restraining order, which has been granted without notice to the defendant, in a divorce proceeding, is not void, and may not be at

tacked collaterally, upon the ground that the emergency therefor was not sufficiently shown.

5. While the decree for alimony under the statute of 1890 should have been made for a sum of money in gross, and not for specific property, yet such a decree was not void as against the collateral attack of one claiming a chattel mortgage upon the property which was the subject of the decree, and which chattel mortgage had been taken prior to the decree of divorce, and in violation of the restraining order against the defendant's making a disposition of his property.

(Syllabus by the Court.)

Appeal from district court, Payne county; before Justice Frank Dale.

Action in replevin by George P. Uhl against Eliza Jane Irwin, W. B. Williams, and Robert A. Lowery. There was judgment for defendants, and plaintiff appeals. Affirmed. George P. Uhl, in pro. per.

BIERER, J. George P. Uhl, the plaintiff in error, brought his action in replevin in the district court of Payne county, on the 25th day of February, 1893, to recover six head of horses. It appears that, on the 14th day of January, 1893, Eliza Jane Irwin brought an action for divorce in the probate court against her husband Elorenzo (Lorenzo) Irwin. In her petition she also prayed for a judgment for alimony. On the same day, she filed in the probate court her affidavit, setting up, among other things, that the defendant was threatening to convey away his property, for the purpose of preventing her from collecting any judgment for alimony that she might procure in said action, and asked the probate court for an order restraining the defendant in that action from disposing of his property, which order was duly made and served upon the defendant. George P. Uhl, plaintiff in error, was employed by the defendant in this divorce proceeding as his counsel; and, on February 14, 1893, Lorenzo Irwin gave to Uhl two promissory notes, one in the sum of $25, and one in the sum of $100, the $100 note being for a fee in the divorce case, and the $25 note being for certain expenses incurred by Uhl while representing Irwin in the divorce case, and, to secure the payment of these notes, have a chattel mortgage on the property for which Uhl brought this suit. Upon the trial of the action for divorce, a decree was rendered in favor of Eliza Jane Irwin for divorce, and, as alimony, she was given the specific personal On the trial in property in controversy here. the district court, judgment was rendered denying Uhl the right to recover possession of this property. He appeals to this court, and urges several objections to the validity of the judgment. He contends that the order of the probate court of January 14, 1893, restraining Lorenzo Irwin from disposing of his property, was void, and therefore could, in no way, prevent Irwin from giving, and the plaintiff from taking, this chattel mortgage, because the probate court had no jurisdiction to entertain the divorce proceeding of