62 P. 998 | Kan. | 1900
The opinion of the court was delivered by
In the recent case of Hornaday v. The State’ (62 Pac. 329), it was decided that the powers of the legislative committee which had been authorized by chapter 13 of the Laws of 1899 to secure a site for an asylum for the insane were limited to the selection of a site and did not extend to the purchase of the one selected, or the fixing of a price
“The rule is well established that the writ will not be granted to compel the performance of an act which has been expressly forbidden by an injunction in the same court or in another court of competent jurisdic-. tion, or whose performance would be in direct violation of an existing injunction, even though the person seeking relief by mandamus is not a party to the injunction suit. Courts will not compel parties to perform acts which would subject them to punishment,
The case of Ohio & Indiana R. R. Co. v. Comm’rs of Wyandot County, 7 Ohio St. 278, and many other like cases, support the quoted text. There are occasional apparent exceptions to this rule, one of which is A. T. & S. F. Rld. Co. v. Comm’rs of Jefferson Co., 12 Kan. 127, but the general doctrine is as stated. The ground of the decision in that case was that the one seeking relief by mandamus had been denied admission as a party to the injunction proceeding, and, besides, had rights which could be ultimately enforced only by mandamus. Therefore, while the district courts are courts of jurisdiction inferior to the supreme court, we cannot arbitrarily ignore their judgments and orders and command the doing of an act which they, within the undoubted limits of their jurisdiction, have enjoined. We may reverse or otherwise revise their judgments and orders, but we can only do so when brought to us in a formal way for such purpose.
Before passing from this special topic we observe that the state is the plaintiff in both the injunction proceeding to restrain the doing of the act and in the mandamus proceeding to command its performance. The former, however, was brought by the county attorney, while the latter was brought by the attorney-general, both of whom are entitled to institute actions in the name of the state. What legal possibilities may be involved in this opposition of proceedings conducted in the name of the same litigant, we have not stopped to inquire, but have consented to view the matter, as counsel seemingly do, as controversies conducted by opposing parties and in behalf of opposing interests.
Estoppels, therefore, where they exist, must be found in the declared and recorded judgments of the courts and not in their argumentative reasoning.
Counsel for defendants argue that the statute noted in the opinion in Hornaday v. The State, supra, as authorizing the purchase or condemnation of the asylum site selected by the legislative committee has been repealed, and that therefore the opinion upon that point in that case was based upon an error of fact. This matter is within the province of the district court of Clay county to investigate and determine, and not for us to undertake to decide, except upon proceedings in error from the judgment that may be rendered in that case should it be brought to this court.
The peremptory writ of mandamus will be refused.