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Originally, injunctions were preventive the court, as to this branch of the case. only, and it is only within recent years that | And in granting such preventive injunctions a mandatory injunction has sprung into existence. Preventive injunctions necessarily operate upon an unperformed and unexecuted act, and prevent a threatened, but nonexistent, injury. A concrete case is presented whenever a right of the plaintiff is threatened by the defendant and the damage would be irreparable, and where protection of that right belongs to the class of cases that are cognizable in equity. Of course, criminal cases do not fall within such a class.

the court of equity does not prescribe a rule of civil conduct, nor invade the province of the legislative branch of the government; nor does it establish a "government by injunction." It only does what has already been done by courts of equity since their adoption into the body of our institutions. It enforces the rules of civil conduct prescribed by the organic law or the statute law, or that arise naturally and regulate all men, by guarding the rights of one citizen against illegal invasion and irreparable inpeti-jury by another citizen, and which the citizen, of his own force, is unable to guard for himself. And in the doing thereof courts of equity recognize no forms, no technicalities, no delays, and no shadows, but act according to the dictates of good conscience, good morals, good conduct, and good government; and they compel every man to act right, and to respect the rights of others, whether his conscience is quick enough to appreciate the difference between right and wrong or not.

Measured by these standards, the tions for injunction asked the preventive aid of a court of equity in respect to rights of the railroad which a court of equity has power to protect against invasion and in jury by the ticket brokers, which injury, it is alleged, is imminent, impending, and irreparable; and that this is so is the more clearly shown by the character of the return to the order to show cause, wherein the ticket brokers say they have invaded such rights of the railroads in the past as to such special tickets, and have money now invested in tickets of that character, which will be lost if the injunction is granted, and assert an intention and right to continue to deal in such tickets. Therefore, as to the tickets that have been issued and sold by the railroads, and are now held by the ticket brokers, both parties assert a property right therein; and hence there is an existent controversy, concerning a legal subject-matter, between live parties, and consequently there is a concrete case presented for adjudication to the circuit court, which it has jurisdiction to decide. It cannot, therefore, be said that the circuit court had no jurisdiction as to those matters. As to the tickets to be issued and sold here after, the railroads have a right to issue and sell tickets of such character as shall express on their face that they have been issued at a reduced rate and are nontransferable; and the ticket brokers assert a right to buy and sell and deal in them notwithstanding the terms thereof, and notwithstanding the original purchaser could confer no rights upon anyone thereunder. There is, therefore, an existent property right of the railroads, which the ticket brokers say they intend to invade, the danger is imminent, and, under the allegations of the petition, the injury will be irreparable; and, in the very nature of the business, the injury cannot be adequately redressed by an action at law, or in any other manner than by a preventive injunction. A proper case for the exercise of the powers of a court of equity by a preventive injunction was therefore also presented for the determination of

There is no merit in the contention that, by granting the injunctions in question in this case, the court has infringed upon the powers of the legislative branch of the government. The court has created no right in anyone. The court has enacted no law or rule of conduct. The court has simply protected rights that are natural or were created by the legislature. The right asserted by the railroads, and denied and threatened by the ticket brokers, is a right that is natural to mankind. It is a right that the legislature of this state and the Congress of the United States have expressly conferred upon the corporation railroads, and which the Supreme Court of the United States has expressly declared they possess. It is a right that is guaranteed to every man by the organic law of the land,-a right to contract concerning a legal subject-matter. Such a right is property, within the meaning of the law. The ticket brokers deny the existence of that right, and threaten to invade it. The law affords no adequate remedy for such an infringement of such a right. The damage will necessarily and obviously be irreparable. This being true, a concrete case for injunctive relief is presented, and, in the granting of such relief, it cannot justly or fairly be said that the courts invade the prerogatives of the lawmaking power in any manner whatever. That power has already created the identical right claimed, and it is the duty of the courts to protect that right in the same manner and to the same extent that they protect any other property rights that are possessed by any citizen. The railroads are

not entitled to, and are not accorded, any right in this regard that is not as fully possessed by any citizen, and that would not be protected in the same manner if such protection was invoked by the humblest citi

zen.

These considerations and conclusions result in holding that the Circuit Court had jurisdiction to hear and determine the injunction cases, and that it did not exceed its jurisdiction, and therefore the preliminary rule in prohibition must be discharged, at the costs of the plaintiff.

passage of the persons to whom they are respectively issued; that each ticket is to recite on its face that it is sold at a reduced rate, and in consideration thereof the purchaser agrees not to transfer it, but that the defendants are engaged in the business of buying and selling secondhand railroad tickets, and that, in spite of the recitals on the face of the tickets, these ticket brokers are liable to buy them and sell them to persons other than the original purchasers, who will use them in payment of their railroad fares, to the irreparable injury of the railroad companies; that if the railroad companies

Robinson, Ch. J., and Brace, Burgess, wait until the tickets are issued, and the and Fox, JJ., concur.

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I do not question that a railroad company may, under a valid contract, issue a ticket limited to be used only by the purchaser, or that it may lawfully refuse to honor such ticket for the transportation of anyone except the original purchaser. And possibly a case might arise under such circumstances as would justify a court of equity in interfering to prevent the transfer or sale of such a ticket. No such case occurs to me now. No one doubts that the circuit court, as a court of equity, has jurisdiction to issue injunctions, and no one doubts that to prevent irreparable injury or a multitude of suits is ground for equitable relief. I am also ready to concede that, if the railroad company were required to wait until a case should actually arise, before calling on the court for an injunction, the remedy would not be so convenient, farreaching, or so absolutely destructive of the business of the ticket broker, as it is in the form given. But conceding all those propositions, I hold that no court has jurisdiction to render a judgment or decree that in effect is but the enactment of a law, or to lay down a rule of conduct to take effect on the cause of action not yet arisen, or to render a judgment in advance, to be applied

when the cause of action arises.

The cases made in the petitions on which the railroad companies obtained these injunctions are, in effect, that the railroad companies, in consideration of the World's Fair and other important public events that may occur in the future in St. Louis, are contemplating issuing round-trip tickets for the transportation of persons from any given point in the United States to St. Louis and return, the tickets to be nontransferable and good going and returning only for the

brokers buy them and sell them, it will be too late to obtain equitable relief, because, in the very nature of the transaction, the deed would be done before the process of the court could be obtained. On the filing of those petitions, and on a joint preliminary hearing, the court issued injunctions enjoining the defendants, until the further order of the court, from buying or selling tickets that the railroad companies might thereafter issue of the character specified. At the preliminary hearing the defendants urged the proposition that there was no concrete case stated on the face of the petition, nothing to bring the judicial power of the court into action, nothing to give the court jurisdiction. But the court ruled to the contrary.

When a petition is filed in the circuit court which the defendant thinks does not state a case that gives the court jurisdiction, he has no right in the first instance to a writ of prohibition to prevent that court taking cognizance of it, because that court has the first right to decide whether or not the petition states a case within its jurisdiction, and the presumption is that, if the court has no jurisdiction of the case stated, it will so decide. And even if the court should erroneously decide that it has jurisdiction, the writ of prohibition will not ordinarily issue, if the rights of the parties can be adequately protected by appeal. But when the court at the very outset, not only erroneously decides that the petition is sufficient to give jurisdiction, but renders an interlocutory decree of such effect that it is destructive of the defendants' rights, beyond redress by appeal, then the writ of prohibition ought to go. That is just what the court in these cases has done. The temporary injunctions are as effective for the destruction of the rights of the defendants as would be perpetual injunctions on final decree, because, in the very nature of the proceedings, the causes would not reach the appellate court until after the public occasions mentioned in the petitions had passed. The defendants have nothing to

tempt upon him; but, giving to the decree its natural effect, the act suggested would be res judicata as well as to that transaction as to any other defense he might desire to make. It is no answer to this position to say that the court could be relied on to use its discretion to allow the defendant, when arraigned, to be heard concerning any particular defense he might have. If the court should hear him at all, it would only be ex gratia. If the judgment is right, he has no legal right to be heard, because it has already been prejudged that his handling of the ticket was unlawful. The only questions the judgment leaves open are, Did the ticket bear those marks? and, Did the broker buy and sell it? If so, he is guilty. When a man buys and sells a ticket that was not in existence when the injunction was issued, and he is arraigned in court to be punished by fine and imprisonment for doing so, to say to him that he will not be heard on the proposition that he had a right to do what he did, and to inflict the penalty upon him without giving him such hearing, is to take his money and deprive him of his liberty without due process of law, in violation of both our state and Federal Constitutions. That is just what is liable to be done in these cases, if the injunctions are taken to mean what they say, and enforced accordingly. It was said in the oral argument by eminent counsel for one of the railroad companies that the business of these ticket brokers was dishonest; that they were as bad as men who keep "fence houses" where stolen goods are knowingly bought and sold. It is strange, if that is so, that the business has not been forbidden by au act of our general assembly, or by the legis latures of many states in the Union. It is the only case to which our attention has been called in which the character of the business received judicial mention. It was said by Chief Justice Parker, of the New York court of appeals: "It is not contended that the business of ticket brokers is in itself of a fraudulent character. The business can be honestly conducted; it has been so conducted in the past by honest men engaged in it; and the most that is asserted is that there are some men engaged in the business who have imposed on the public. The same assertion can be made with equal truth of every business, trade, and profession. .

hope for in the final hearing, because there | court would not inflict the penalty for conare no facts in issue to which evidence could be addressed to change the mind of the chancellor. When the cases come on for final hearing, what issue is there to try? Will the court hear evidence to prove at the time of filing the suits the railroad companies really intended to issue the kind of tickets specified, and that they had cause to apprehend that, if they should conclude to issue them, the ticket brokers would buy and sell them? There are no issues of fact. There is nothing in the cases to try on final hearing. It is said that these injunctions can injure no one, because they are not to take effect until a concrete case arises,until one of the defendants does an act for bidden, then the injunctions cease to be mere abstract fulminations, and become concrete judgments. That is so, but the vice of it is that it is a prejudgment of the case before it has arisen. Suppose next year a railroad company issues a ticket in the form suggested, and a broker buys and sells it, and he is arraigned before the court on a charge of contempt. He comes into court and says: "I am advised that I had a legal right to buy and sell that particular ticket, and I ask for a trial on that issue." But the court will look at the ticket, and see printed on its face that it was sold at a reduced rate and is nontransferable, and will say to the defendant: "There is nothing to try. That was settled by a judgment rendered a year ago. The only question before the court now is as to the character and degree of punishment to be inflicted." Then, if the defendant should say, "But this ticket was not issued until a year after that judgment was rendered," the answer would be: "This judgment is prospective in its character, affecting, not only what has been, but what may be. It establishes a rule of conduct for all time, and confers the character of res judicata upon every transaction involving the buying and sell ing of a round-trip railroad ticket upon which the railroad company may have taken the care to have printed on its face that it was sold at a reduced rate, and is nontransferable." Suppose a railroad company should issue a ticket of the kind in question, and then, in order to ascertain if any one is violating the injunction, should send a detective to a broker to sell him a ticket, and send another to buy it, and the broker, so induced, buys and sells; could he not, when arraigned in court on a charge of contempt, well say: "I bought that particular ticket from an agent of the railroad company especially authorized to sell it to me, and I sold it to one in like manner authorized to buy it?" Doubtless, if he should be allowed to get that far in his defense, the

The business of selling passage tickets continues, therefore, to be regarded as a lawful and legitimate business." People ex rel. Tyroler v. Warden of City Prison, 157 N. Y. 124, 43 L. R. A. 268, 68 Am. St. Rep. 763, 51 N. E. 1006.]

The lawmaking power of this state has not declared this business unlawful, and the

judiciary has no authority to do so; yet | rights. But I apprehend that, if any such conthe effect of these injunctions is to drive dition should arise, it would be held that these men out of business, and that is the purpose avowed in the arguments of the learned counsel for the railroad companies. It is for the legislature to declare the policy of our law, and for the courts to apply the law to particular acts after they are committed, or acts threatening some property right when in existence. It is true, these injunctions prohibited the buying and selling of only such tickets as carry on their face certain recitals, but there is nothing to prevent the railroad companies printing those recitals on the face of all tickets, and having all of them signed by a purported purchaser; and whether the recitals are true, or the signature bona fide, are questions on which the broker, according to the terms of these injunctions, when arraigned on a charge of contempt, will have no right to be heard. Any fact so appearing on the face of the ticket is, as to him, res judicata. The railroad company is clothed with the power of stating the necessary facts on the face of the ticket, and any fact, when so stated, becomes, by relation back to the judgment, res judicata, and is past disputing.

the fault was with the court, which had gone beyond its jurisdiction, and attempted to reach into the future to adjudicate upon cases before they had arisen. Suppose our general assembly should conclude that the business of railroad ticket brokers was detrimental to the well-being of the state, and pass an act saying that anyone who should hereafter buy or sell a railroad ticket that recited on its face that it had been issued by the company at a reduced rate, and for that reason was nontransferable, should be deemed guilty of a misdemeanor, and upon conviction be punished by fine and imprisonment; would anyone say that the general assembly, in passing that act, was usurping the powers of government intrusted to the judiciary? Whatever else might be said, in questioning the validity of the act no one would say that it was not legislative in its character. No one would claim for it that it was a judicial act. Yet that is exactly the kind of act effected by these injunctions. Our attention has been called to a bill now pending in the municipal assembly. which, in its essence, copies the very words of these injunctions, and proposes to

companies appealing to the World's Fair sentiment in the municipal assembly to induce its members to usurp judicial powers, or has the circuit court assumed legislative functions? The act, in its nature, is either legislative or judicial. It belongs either to the one department of the government or to the other. It cannot be exercised by both. In the language of the supreme court of Vermont: "No power can be properly a legislative and properly a judicial power at the same time; and, as to mixed powers, the separation of the departments in the manner prescribed by the Constitution precludes the possibility of their existence." Bates v. Kimball, 2 D. Chip. (Vt.) 77.

As between the plaintiffs and the defend-enact them into a law. Are these railroad ants in those suits, if the court had jurisdiction to decree as it has decreed, the decree settles the rights of the parties touching the subject adjudged, and the plaintiffs cannot by any subsequent legislation be deprived of their vested rights in the matters covered by that decree. If the plaintiffs are entitled to what those decrees essay to adjudge to them, then, as to the defendants in those suits, no power in the land can deprive them of it. Those decrees cover tickets to be hereafter issued, as well as tickets already issued, and are aimed chiefly at tickets hereafter to be issued. No one will doubt but that the general assembly has the power to enact that all railroad tickets issued in this state shall be transferable or assignable; yet, if the court had jurisdiction to enter the decrees that it did enter in these cases (and, so far as the question of jurisdiction is concerned, there is no difference between an interlocutory decree and a final decree; jurisdiction to grant a temporary injunction is jurisdiction to make it perpetual), then, if the general assembly should to-morrow enact a law to the effect that all railroad tickets hereafter issued in this state should be transferable, the act would be invalid in its application to the acts of the parties to those suits relating to tickets covered by those decrees, because, if the decrees are valid, they confer on those plaintiffs, as against those defendants, vested rights, and subsequent legislation cannot destroy vested

No court of last resort has ever before laid down the doctrine that this court now announces in the majority opinion. We have no precedent for it. This I feel safe in saying, because, although we are aided by an unusually strong array of eminent counsel, representing nearly all the great railroad interests centering in St. Louis, yet they have referred us to no appellate court that has given its sanction to such a use of judicial power. The very fact that the only legislative body in the state now in session, and at all available to the purpose, is resorted to, to obtain the same object these injunctions purport to accomplish, evinces a lack of confidence in the position taken by the railroad companies in these

cases.

In the brief of the learned counsel for the ticket brokers is a collection of authorities sustaining every proposition they make, and demonstrating that the interlocutory decrees granting these injunctions are legislative, and not judiciary, in their character. I am strongly tempted to quote from some of these authorities, but I have already oc

cupied as much space as ought to be taken in a dissenting opinion.

For the reasons outlined in the foregoing pages, I respectfully dissent from the majority opinion. In my judgment, the writs of prohibition ought to issue.

Gantt, J., agrees with me in this opinion.

SOUTH DAKOTA SUPREME COURT.

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1. The trial judge cannot be held to have abused his discretion in refusing to transfer a case to another court for trial on the ground of prejudice, where he was called from another circuit to try the case on the allegation of prejudice on the part of the local judge, and there is nothing to show that an impartial jury had not been secured, while numerous affidavits state that a fair trial can be had, although there is some prejudice against the accused, and some affidavits state that such trial cannot be had.

2. Permitting an officer who had heard the evidence on a former trial of accused, and had formed an opinion as to his guilt, to summon the jury for the new trial, is not such an abuse of discretion as to require a new trial, where it affirmatively appears that he had no actual bias or prejudice against accused, and there is nothing to show that he used his office to the detriment of the prisoner.

3. Refusing to strike out the opinion

NOTE.-Procedure in proof of handwriting.

I. Scope. 151.

II. Procedure generally, 151.
III. Purpose of the proof, 153.

IV. Examination of the witness, 154.
V. Deciphering of obscurities, 155.
VI. Summary, 156.

I. Scope.

The purpose of this note is merely to state the rules as to practice and procedure which have been held to apply, or not, to the case of proof of handwriting by the usual means. This excludes the discussion of the special rules applicable to the proof of handwriting by compar ison of genuine with the disputed writings, treated in the note to Hoag v. Wright, 63 L. R. A. 163, upon the Examination of witnesses to handwriting by comparison; it also excludes the treatment of the subjects of the limitations and extent of evidence as to handwriting, and of The competency of witnesses to handwriting, treated in a note to Ratliff v. Ratliff, 63 L. R. A. 963; as also the special subject of The competency of witnesses to handwriting by comparison, treated in a note to Tower V. Whip, 63 L. R. A. 937; the subject of Compari

of a witness as to the genuineness of signatures in evidence upon withdrawing other signatures which had been introduced for the purpose of comparison is not error, where the witness had seen the person write who is alleged to have written the signatures, as to which he testifies, and is therefore competent to give his opinion as to their genuineness independently of any comparison with other signatures in evidence. 4. An entry in a record kept by a postmaster as to the payment of a money order is admissible in evidence, although neither the statute nor the requirements of the postoffice department require the record to be kept, where it is necessary and proper in the orderly conduct of the business of the office.

(July 2, 1902.)

ERROR to the Circuit Court for Hamlin

County to review a judgment convicting defendant of murder. Affirmed.

The facts are stated in the opinion. Mr. C. H. Winsor for plaintiff in error. Messrs. A. W. Burtt, Attorney General, Alva E. Taylor, and Aubrey Lawrence for the State.

son of handwriting," generally, covered in the note to University of Illinois v. Spalding, 62 L. R. A. 817; the subject of The competency of standards for comparison of handwriting, in the note to Gambrill v. Schooley, 63 L. R. A. 427; and Comparison of marks and spelling, found in a note to Re Hopkins' Will, ante, 95.

II. Procedure generally.

When an objection is made to the admission in evidence of a writing, upon the ground that there is no proof of the genuineness of the signature, and the presiding judge has personal knowledge of the handwriting of the signer, and from this acquaintance is satisfied that the signature is genuine, no other evidence is necessary to make a prima facie case for the party producing the writing upon the question of its genuineness, until some evidence is introduced in opposition to the case thus made. Brown v. Lincoln (1867) 47 N. H. 468.

And where a witness in a deposition in a suit in equity swears to the handwriting of a document, and afterwards becomes blind, his deposition may be read in his lifetime. Lynn v. Robson (1823) 1 L. J. Ch. 88.

It seems that when a paper is about to be put into the hands of a witness counsel have no

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