[181 Pac. 788].) Each of these cases had reference to liabilities arising out of and during a partnership relation and in each of which it was decided that the provisions of the Workmen's Compensation Act wherein it was attempted to invest the Industrial Accident Commission with jurisdiction to hear and determine such cases were unconstitutional and void. In the year 1918 the foregoing section of the constitution was amended so as to broaden the powers of the legislature "to create and enforce a complete system of workmen's compensation by appropriate legislation."

the effect of this amendment to the constitution may be in other respects, its primary object remains that of dealing, and of authorizing the legislature to deal, with the subject of workmen's compensation. In that respect it purports to be no broader in its scope than the section of the constitution above quoted and which it replaced. This being so, the above-cited decisions of this court defining the powers of the legislature under said former clause in the constitution still remain as to the particular point at issue here in full force and effect. [2] The respondent herein concedes the force of these decisions, but undertakes to avoid their effect by showing that in the policy of insurance issued to the firm of Green & Williams, said W. L. Williams was expressly mentioned and listed among the employees of said firm, and it is the respondent's contention that the name of W. L. Williams having been thus inserted in said policy among the employees of the firm, even though he was not in fact such employee, and that said insurance carrier having received benefits in the way of added premium by virtue of the insertion of the name of said Williams in said policy as such an employee, were sufficient to give the Industrial Accident Commission jurisdiction to determine the fact as to whether said Williams was or was not an employee of his own firm. This contention is based upon the showing that the Workmen's Compensation Act embraces certain sections which provide that working members of partnerships receiving wages, irrespective of profit from said partnership, shall be deemed employees thereof, and which also undertake to give the commission jurisdiction to determine controversies arising out of insurance policies issued to self-employing persons. (Workmen's Compensation Act, 1917, secs. 8b, 57b.) Even if it were to be conceded that such a stipulation between the in

sured and the insurance carrier could suffice to confer jurisdiction upon the Industrial Accident Commission to hear and determine the question as to whether the person named as an employee therein is or is not such an employee as would be entitled to the benefits of the act, it would avail the applicant in this proceeding nothing, since the undisputed evidence shows that he was not in fact an employee of the partnership of which he was a member. His own testimony before the commission is conclusive upon this subject and brings the case squarely within the above authorities so as to compel an annulment of this award.

[3] The respondent herein, however, urges that the insurance carrier by the fact of having issued this policy and received the consideration therefor in the way of premium is estopped thereby to claim that W. L. Williams is not an employee of the insured. In support of this contention the respondent cites a number of cases from other jurisdictions, all of which, with one exception, are cases of agreement between individuals and estoppels arising therefrom in no way affecting the question of the jurisdiction of tribunals to hear and determine such controversies. On the other hand, it has been held in this state that a surety company is not estopped to deny liability upon a void obligation by reason of the fact that it has executed the same and received the benefits thereof. (Loop L. Co. v. Van Loben Sels et al., 173 Cal. 228, [159 Pac. 600]; Shaughnessy v. American Surety Co., 138 Cal. 543, [69 Pac. 250, 71 Pac. 701]; Coburn v. Townsend, 103 Cal. 233, [37 Pac. 202].) The case of Kennedy v. Kennedy Mfg. Co., 177 App. Div. 56, [163 N. Y. Supp. 944], is the only case cited by petitioner bearing upon the question at issue here. That was a case arising under the Workmen's Compensation Act of New York, and the court held that the insurer in that case was estopped to deny that the applicant was an employee of the insured corporation when he had been listed as such employee in the insurance policy. This 'ruling, however, was not necessary to the decision of that case, since it clearly appeared that irrespective of the terms of the policy the applicant was, upon the facts, an employee of the corporation. That case is, therefore, not authority for the respondent's contention in the instant case. Upon principle it must be held that jurisdiction of the subject matter of a controversy cannot be conferred upon a tribunal of

limited powers either by the direct agreement of the parties or by an estoppel growing out of such agreement. (15 Corpus Juris, p. 844, sec. 164; Lindsay-Strathmore Irr. Dist. v. Superior Court, 182 Cal. 334, [187 Pac. 1056].) Upon the facts of this case the applicant for this award was not an employee of the copartnership of which he was a member at the time of his injury. The Industrial Accident Commission had, therefore, no jurisdiction to entertain his application or to make the award. Whether or not W. L. Williams would have a right of recovery in the ordinary courts of law upon any obligation on the part of the insurer arising out of the terms of this policy and of his injuries is a matter which we are not called upon to determine in this proceeding. The award is annulled.

Wilbur, J., Waste, J., Lennon, J., Shaw, C. J., and Shurtleff, J., concurred.

Rehearing denied.

All the Justices concurred, except Sloane, J., who did not vote.

[S. F. No. 9906. In Bank.-December 22, 1921.]

IRENE MOELING WEEKS, Petitioner, v. SUPERIOR COURT, etc., et al., Respondents.

[1] DIVORCE-CONTEMPT RIGHT TO FINAL DECREE.-A party to an action for divorce who has willfully disobeyed a lawful order of the court relating to the custody of the minor child of the marriage is not entitled to have the final decree entered until she has purged herself of the contempt.

[2] ID.-CONSTRUCTION OF CODE.-Section 132 of the Civil Code, which provides that when one year has expired after the entry of the interlocutory decree the court, on motion of either party, may enter the final judgment granting the divorce, does not mean that a party may have a final decree entered when to do so would be a flagrant abuse of the principles of equity and of the due adminis

1. Right to enter final decree of divorce after time fixed by interlocutory decree expires, note, 1 A. L. R. 1591.

tration of justice, since it is within the contemplation of the section that facts arising subsequently to the granting of the interlocutory judgment should have their influence in determining the right to a final decree.

[3] CONTEMPT-STATUS OF PARTY.-A party to an action cannot with right or reason ask the aid and assistance of a court in hearing his demands while he stands in an attitude of contempt to its legal orders and processes.

APPLICATION for a Writ of Mandamus to compel the granting of a final decree of divorce. Denied.

The facts are stated in the opinion of the court.

Max J. Kuhl and C. F. Eldridge for Petitioner.

T. P. Wittschen and G. E. Jackson for Respondent.

WASTE, J.-The petitioner seeks a writ of mandate to compel the respondent to grant her a final decree of divorce. Her application here is based upon the refusal of the superior court to act, for the reason that the petitioner, as a party to the divorce action, has willfully disobeyed the lawful order of the court relating to the custody of a child of the marriage, and is, therefore, in contempt of court.

The petitioner is the defendant in an action for divorce brought against her by her husband on the ground of extreme cruelty. When the action came on for trial she was represented in court by counsel, and she and the minor child of the marriage were in the state and within the jurisdiction of the superior court. By the terms of the interlocutory decree the court determined that the husband was entitled to a divorce, and awarded him the custody and control of the minor. On the day of the trial, and after the decree was granted, the petitioner, without the consent or permission of the court or of the plaintiff in the action, removed the minor from the state, where she has kept the child ever since. When one year expired after the entry of the interlocutory judgment, the petitioner, without coming into the state, applied to the respondent, through an attorney, for the entry of a final judgment granting the divorce. Her application was opposed by the plaintiff in the action on the facts stated, and upon the ground that petitioner is in contempt of court in keeping the minor outside the jurisdiction of the superior

court to prevent him from gaining possession of the child in accordance with the court's decree. Petitioner made no attempt to controvert these facts or the allegation as to her motive.

[1] We think the respondent was right in refusing to enter the final decree of divorce. [2] Section 132 of the Civil Code provides that when one year has expired after the entry of the interlocutory decree the court, on motion of either party, or upon its own motion, may enter the final judgment granting the divorce. But that does not mean that a party to the action may have a final decree entered when to do so would be a flagrant abuse of the principles of equity and of the due administration of justice. It is within contemplation of the section that facts arising subsequently to the granting of the interlocutory judgment should have their influence in determining the right to a final decree. (Olson v. Superior Court, 175 Cal. 250, 252, [1 A. L. R. 1589, 165 Pac. 706].) When one becomes a voluntary actor before a court and secks the court's aid it is manifestly just and proper that in invoking that aid he should submit himself to all legitimate orders and processes. [3] No party to an action can, with right or reason, ask the aid and assistance of a court in hearing his demands while he stands in an attitude of contempt to its legal orders and processes. (O'Neill v. Thomas Day Co., 152 Cal. 357, 362, [14 Ann. Cas. 970, 92 Pac. 856].) "No rule of law seems more widely prevalent or better established than that a court whose authority has been put to naught will extend no favors or privileges to the party in contempt until he has acknowledged its authority by purging the offense." (4 Ency. Pl. & Pr. 805; 13 Corpus Juris, 91; Winter v. Superior Court, 70 Cal. 295, [11 Pac. 633]; Monterey Coal Co. v. Superior Court, 11 Cal. App. 207, [104 Pac. 585]; Smith v. Smith, 18 Wash. 158, [51 Pac. 355]; Campbell v. Justices of the Superior Court, 187 Mass. 509, [2 Ann. Cas. 462, 69 L. R. A. 311, 73 N. E. 659]; White v. White, 148 App. Div. 883, [132 N. Y. Supp. 1043].)

The identical situation presented by this application was but recently considered by the supreme court of Washington. Pending the determination of a divorce action the superior court of that state ordered the plaintiff, the wife, to keep the child of the parties to the action within the jurisdiction