Dissenting Opinion, per JONES, J.

the immunity concerning which he wrote, given to cities adopting charters under Article XVIII, has been grossly violated by this decision.

There is no immunity if the commission's rate shall stand as the law of Ohio; but we are back where we were before the amendment of 1912, to all practical intents and purposes. Such a construction of the constitutional grant of power to municipalities is a practical illustration of a doctrine denounced by St. Paul, a great Roman lawyer of old, who said:

"The letter killeth, but the spirit giveth life.” The spirit, the purpose, the intent, of the homerule amendment must always be kept in mind in construing and applying it. Whether the testator be a private person bequeathing his personal estate or the public bequeathing its political power, the same rule applies as to intent. It is the polestar of construction.

I should like some one upon the other side to draw a diagram giving the state commission the power to fix telephone rates, and then with definiteness and certainty show what is left to the municipality after this principle has been applied throughout governmental affairs. Nothing but the shell of home rule would remain. The soul and spirit would have passed away to some state generalassembly commission. Home rule would be an eloquent phrase, but empty in power and practice.

JONES, J., dissenting. Whether prohibition can be invoked in this case depends upon the decisive question, which of these contending tribunals has

Dissenting Opinion, per JONES, J.

jurisdiction over the rates of this public utility-the common pleas court of Cuyahoga county or the public utilities commission of the state? If the former has no jurisdiction over the subject-matter, a writ of prohibition should issue; and upon the decision of this feature of the case rests the determination as to the character of the remedy. Upon this phase of the question I fully concur with the views of the concurring judge. Herein lies the crux of this remedial controversy. The Cuyahoga county common pleas court decided that the public utility act did not control. If its decision was erroneous, then that court clearly usurped jurisdiction and should be prohibited from further entertaining it. This is the province of the writ. What boots it to the city if we now deny the writ, and later on gibbet the city by holding that the public utilities commission had complete jurisdiction? Here the telephone company is being subjected by the commission, on the one hand, to a statutory investigation of its rates; on the other hand a court acting solely under a statutory jurisdiction is also assuming jurisdiction and threatens to impose the ordinance rates upon the utility. Which of these tribunals has jurisdiction over the subject-matter? To which must the utility yield? Shall it be subjected, as it now is, to a two-fold simultaneous hearing? And, at the conclusion of those hearings, whose orders shall it obey? Shall it subject itself to punishment for contempt for failure to obey the order of the Cuyahoga county court, or submit to a maximum penalty of $1,000 per day for failure to obey the order of the commission as provided by

Dissenting Opinion, per JONES, J.

the code? (Section 614-64, General Code.) The situation is preposterous. How futile and how fatuous it would be to have these contending cases pursue their tedious course through the intervening courts, on error, in order to determine ultimately in this court the sole decisive question - Has the nisi prius court jurisdiction and has the legislature conferred it? And now, both sides having trained their heavy guns on the main question and being desirous of a determination, we find ourselves in the situation described by the Latin poet:

"Parturiunt montes,

"Nascetur ridiculus mus."

As stated in the text of 2 Bailey on Habeas Corpus, 1398: "It being conceded that the very object and purpose of the writ of prohibition is to confine courts, within their jurisdiction, to prevent them from exercising powers they do not possess, is it not a total disregard of such purpose to say and hold, that notwithstanding, the court shall not be restrained, but permitted to proceed and in the end, this exercise of the want of power, will be corrected and the proceeding declared non coram judice, and all at the expense and to the material injury of the party aggrieved?"

It has been held even in cases where two tribunals of coordinate jurisdiction are simultaneously taking cognizance of the same subjectmatter, under circumstances where their final judgments may clash in their execution, and the party aggrieved is subject to the expense of two separate trials upon the subject of the controversy, that

Dissenting Opinion, per JONES, J.

error does not furnish an adequate remedy and that prohibition would lie. State, ex rel. Webster, v. Superior Court of King Co., 67 Wash., 37.

The principle announced is also supported by the following cases: State, ex rel. Merriam, v. Ross, Judge, 122 Mo., 435; State, ex rel. Sullivan et al., v. Reynolds, Judge, 209 Mo., 161, and Dungan v. Superior Court of Fresno Co., 149 Cal., 98. In the latter case two superior courts of California counties were exercising jurisdiction in the settlement of an estate, and the court there held that the court first obtaining jurisdiction retained it, and prohibited the second coordinate court from exercising any jurisdiction therein. And in the opinion it was said at page 104: "In view of the complications which will necessarily follow the attempted exercise of jurisdiction in this matter by two superior courts, we are of the opinion that it cannot be said that there is a plain, speedy, and adequate remedy in the ordinary course of law."

But it is stated that the courts of common pleas of this state are courts of general jurisdiction and competent to decide upon their own jurisdiction. No one questions this established principle, but the complete answer to that proposition is that if the court of common pleas either lacks jurisdiction, or usurps it, the writ will lie; otherwise we can have no writ of prohibition against any court of general jurisdiction in this state. Of course if the jurisdiction of the court depends upon a controverted fact necessary to give it jurisdiction, the establishment of that fact by a court which is competent to decide it precludes a superior court from issuing the writ,

Dissenting Opinion, per JONES, J.

but, as stated in State, ex rel. Barbee, v. Allen, Probate Judge, 96 Ohio St., 10, 15, in such cases the subject-matter "was one properly before the court and within its constitutional jurisdiction."

Such is the effect of the decision in the case of Kelley, Judge, v. The State, ex rel. Gellner, 94 Ohio St., 331. In that case a writ of prohibition was asked for two reasons: (a) That the insolvency court had no jurisdiction over the subject-matter; (b) That the insolvency court had no jurisdiction because the evidence failed to show that the plaintiff had been a resident of the state for a year preceding the time of filing his petition. The court there held that the insolvency court had jurisdiction of the subject-matter, and, as to the second proposition involved, held that it was within the province of the insolvency court to determine the issue of fact. As to that feature the court was competent to pass upon its own jurisdiction, and error would lie.

To deny the writ of prohibition against a usurping court of general jurisdiction for the reason that such court is competent to pass upon its own jurisdiction would result in the adoption of a novel principle in the law relating to the issuance of this writ. Suppose such court should erroneously decide that it had jurisdiction of a subject-matter? Or, let it be assumed that the common pleas court of Cuyahoga county should attempt to issue a writ of prohibition or exercise original jurisdiction over the probate of wills or the settlement of decedents' accounts, or that it should attempt to exercise original jurisdiction in the removal of a guardian