Opinion
No. 26,900.
Filed October 11, 1937.
JUDGES — Special Judges — Jurisdiction — After Judgment. — Where, after judgment by a special judge establishing a drainage ditch, a constitutional question arose as to the applicability of a statute purporting to divest courts of jurisdiction to hear and adjudicate certain drainage proceedings, jurisdiction to decide such question rested solely in such special judge, who, for the purpose of that proceeding, was the judge of such court.
Original action by the State on the relation of Henry Kister, as special judge of the Adams Circuit Court, and others against Huber M. DeVoss, as regular judge of the Adams Circuit Court, for a writ of prohibition. Temporary writ made permanent.
Embree Baltzell, Roscoe D. Wheat and Tod Whipple, for appellants.
Eichhorn, Gordon Edris and Clark J. Lutz, for appellee.
This is an original action in which an order is sought prohibiting the respondent, regular judge of the Adams Circuit Court, from interfering or exercising jurisdiction in respect to a certain drainage ditch established by the judgment of the Adams Circuit Court in a cause in which Henry Kister is special judge.
The controversy arises out of a statute enacted by the General Assembly in February, 1937, which purports to divest courts of jurisdiction to hear and adjudicate certain drainage proceedings. It appears that the constitutionality of the statute has been questioned, and that a question has arisen as to whether it affects proceedings in which judgment was entered prior to its passage.
The question of the constitutionality of the statute, and its application to the proceeding in question, must be determined by the court in which the proceeding is pending, that is, the Adams Circuit Court. For the purposes of this particular proceeding, Henry Kister is judge of the Adams Circuit Court. No other court and no other judge has power to determine the jurisdictional question involved.
The temporary writ of prohibition heretofore issued is made permanent.