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It is the not infrequent habit of the legal circuit rider whose case has been lost by the adverse decision of the judge to avail himself of the freedom of the county seat hotel, where his fellow lawyers may be stopping, to vent his disapprobation of the ruling made. In humorous phrase this unavailing protest has come to be known as “An Appeal to the Tavern." I have lost a case, and here before my brethren of the bar am taking an appeal.

When I explain that the Supreme Court of this state, something less than a year ago, contrary to what I had contended was the law, solemnly decided that it was within the judicial power of one court to enjoin another court from trying a law suit I think I state a case of such rare peculiarity as to justify a degree of attention to the merits of my claim of error.

Briefly stated, the facts were that a gas company was laying its pipe line in the highways of Montgomery county. This was objectionable to the public authori. ties there who endeavored by various interferences such as injuring the company's property and harassing, intimidating and arresting its employes, to prevent the work being done. The company on application to the district court secured a temporary order of injunction restraining the Board of County Commissioners, the sheriff and his deputies, and the county attorney and his deputies from interferring with it in the business of utilizing the public highways for the laying of its gas pipes. Thereafter, on complaint made to the judge of the court of Coffeyville, a number of the company's laborers were arrested and were about to be tried for the act of digging and laying gas pipe in the country roads. The company thereupon procured from the district court another temporary injunction directed to the judge of the court of Coffeyville and the marshal of his court restraining them from entertaining the criminal prosecutions already instituted, or any others that might be thereafter proposed.

The allegations of the petition in this case were the same as those in the one first mentioned the one enjoining the Board of County Commissioners, the sheriff and his deputies, and the county attorney and his deputies. They were simply assertive of the gas company's right to use the highways for its purpose, to which, however, was added a charge of conspiracy to injure the company in its business by the arrest and annoyance of its agents and employes. Soon after the issuance of this last mentioned injunction a deputy county attorney, unmindful of the restraints under which he and his principal rested, presented to the judge of the court of Coffeyville complaints against a number of the gas company's laborers, charging them with the obstruction of the public highways by digging into and laying gas mains therein. The judge, having been prohibited by the district court from entertaining jurisdiction in such cases, refused to file the complaints and issue warrants of arrest, whereupon mandamus was brought in the Supreme Court in the name of the state on the relation of the county attorney, to compel him to exercise his judicial duty. The court refused the writ upon the ground that inasmuch as the district court had general jurisdiction to issue injunctions, therefore the injunction of one judge upon another was a subject matter within the jurisdictional power of the former, and hence mandamus should not issue to compel performance of an act, the doing of which had been enjoined by another court. The case will be found in 80 Pac. 966, and will doubtless appear in the 70 Kan

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sas report. It is from that decision I take my appeal, and I hope that the statement of my case thus made is sufficient to entitle me to a degree of sympathetic attention to the claims of error I shall make. Let me, however, for the sake of clearness, restate the essential facts and order of occurrence of the litigation mentioned:

First. An injunction by the district court at the suit of the gas company against the board of commissioners, the sheriff, and the county attorney.

Second. Injunction by the district court at the suit of the gas company against the judge of the Coffeyville court.

Third. Application by the State to the Supreme Court for mandamus to compel action by the Coffeyville court. It was in this last mentioned proceeding that the unique decision from which my appeal is taken was rendered. Lest I do not state the grounds of that decision in its exact terms I quote verbatim from the opinion, in which the court, after adverting to the general rule that equity does not assume to restrain the prosecution of criminal offenses, proceeded as follows:

“However, this is all aside from the question involved which is not, ought Judge Flannelly of the district court of Montgomery county to have granted such injunction, but had he power to grant it? Was his order erroneous or was it absolutely void. The question is not should this court enjoin the officers of a criminal court from proceeding in a criminal case, but shall it direct one who has been so enjoined by a court having jurisdiction of the subject matter, and jurisdiction of the person to violate such injunction. The district court of Montgomery county did have jurisdiction to issue injunctions, and it did have jurisdiction of the person of Judge Snelling. Whether Judge Flannelly improvidently or erroneously made the injunctional order in question is beyond the scope of this discussion. It was made, and until its revocation in some proper manner it is to be obeyed.”

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The quotation I have read fully epitomizes the decision made and the reasons for making it. Nothing whatever in the way of statement of the substantive grounds of the decision has been left out. You will observe from this quotation that their Honors' reason for holding that an injunction order by one court restraining another court from trying its law suit was not void, but was voidable only, was entirely and alone because district courts do have power to issue injunctions. That was the sole reason advanced. It was as though the court had undertaken a form of syllogism running thus: “Courts have power to issue injunctions : An injunction by one court upon another is within the power authorized: Therefore, one court may enjoin another court." I submit that the minor premise of this syllogism is a bold unblushing begging

a of the whole question. It doesn't follow that because courts have power to issue injunctions they have power to issue them against one another. If it be true that the mere power to grant injunction orders sanctifies the granting of the order until it is vacated on error, then there can be no such thing as a void injunction. That, however, we know is not true, because the books are full of decisions holding injunctional orders to be utterly void for lack of the judge's authority to issue them. To say that I, if a judge, because of my being vested with the general power to issue injunctions, may fulminate them against anybody and in respect of anything, without as well as within the grant of my judicial powers; that, for instance, I may enjoin my brother judge from the exercise of his judicial authority in respect of a matter fully within the grant of his judicial power, and that if I do so my order is only voidable, not void, for the reason that injunctive power is within my general grant of jurisdiction, is to talk drivel and nonsense of the most puerile kind.

You will observe that the Supreme Court adverts to Judge Flannelly's jurisdiction of Judge Snelling's person as though that were an aid to the authority exer

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cised. Jurisdiction of the person is not necessary to the exercise of judicial power over a given subject matter. It is only necessary in order to effectuate the exercise of authority over a subject matter. A judge's jurisdiction over the subject matter of an action is neither aided by his ability nor defeated by his inability to catch the respondent in his territorial district.

That the Supreme Court, notwithstanding it advertence to the fact of jurisdiction over Judge Snelling's person seemed, nevertheless, to regard the mere power of the district court to grant injunctions as sufficient to validate the order in question for the time being and save it from vacuity and emptiness is evident from a portion of the quotation above made and again repeated.

“The question is not should this court enjoin the officers of a criminal court from proceeding in a criminal case, but shall it direct one who is enjoined by a court having jurisdiction of the subject matter and jurisdiction of the person to violate such injunction. The district court of Montgomery county did have jurisdiction to issue injunctions.

"The district court did have jurisdiction to issue injunctions," says the Supreme Court, and the decision, therefore, is made to turn solely upon the fact of the district court being a general depository of restraining power. In justice to the judges, however, it must be observed that they do seem to recognize the necessity of the court which issues the injunction having jurisdiction of the subject matter. They speak of that and query whether mandamus should issue to require the doing of what had been “enjoined by a court having jurisdiction of the subject matter.' But the trouble is their Honors found that subject matter to be the mere general power to issue injunctive writs—a thing preposterous in itself. Jurisdiction is the power to hear and decide; the subject matter of jurisdiction is the thing, or more accurately stated, the claim of right in respect of which the power is exercised. The sub

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