The opinion of the court was delivered by
Cunningham, J.':
From the foregoing statement of facts it will be seen that we are asked to compel Judge Snelling to do the identical thing which Judge Flannelly, of the district court of Montgomery county, has forbidden him to do. Strong reasons must necessarily be found to warrant any such anomalous order. These are found to the satisfaction of the relator in the following propositions: That injunction will nev.er lie to restrain the prosecution of a criminal [504]*504action, and hence no magistrate can ever be enjoined from the issuance of a warrant for the arrest of an alleged offender; that, therefore, Judge Flannelly being without jurisdiction, the order of injunction was without force upon Judge Snelling, and was but a mere brutum fulmen, and not only might, but should, be ignored by the latter when applied to for process.
A very great majority of the cases found in the books, where application has been made to a court of equity for injunctions to restrain the prosecution of criminal actions, announce the doctrine that equity courts will not so interfere; especially is this true where it is sought by such suits to test the constitutionality or validity of the ordinance or law under which an alleged criminal is being prosecuted. The general doctrine is a very just, proper and correct one, and it is almost inconceivable that a court endowed with the high prerogatives of equitable jurisdiction would by their use interfere in the ordinary proceedings of criminal courts. It is true, however, that in some cases, rare indeed, equity courts have rightly interfered to prevent prosecutions of criminal actions. This is especially so where criminal proceedings are being prosecuted with a spiteful purpose, and in other cases for the purpose, and with the effect, of interfering with the property rights of the citizen. (The City of Atlanta et al. v. The Gate City Gas Light Co., 71 Ga. 106; P. & A. V. R. R. Co. v. Prowers Co., 5 Colo. App. 129, 38 Pac. 112; Dobbins v. Los Angeles, 195 U. S. 223, 25 Sup. Ct. 18, 49 L. Ed. 169.) We have yet to find a case where a refusal to enjoin is put upon a denial of the inherent power to do so.
However, this is all aside from the question involved, which is not whether Judge Flannelly, of the district court of Montgomery county, should have granted such injunction, but whether he had power to grant it. The question is not whether this court shall enjoin the officers of a criminal court from pro[505]*505ceeding in a criminal case, but whether it shall 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 had jurisdiction to issue injunction, and it had jurisdiction of the person of Judge Snelling. Whether Judge Flannelly improvidently or erroneously made the order of injunction 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. Any other rule would bring chaos into judicial proceedings, and clashing, worse confounded, between judicial tribunals.
This court has decided the matter in hand in the case of The State v. Hornaday, 62 Kan. 334, 62 Pac. 998, where in the syllabus it was said:
“Mandamus will not issue to compel the performance of an act the doing of which has been enjoined by another court vested with jurisdiction over the subject-matter and over the parties to the injunction proceeding, except that it may someimes issue in behalf of one who is not a party to the injunction, and whose rights can only be secured by its allowance.”
What we have said with regard to Judge Snelling applies with equal force to the county attorney, Mayo Thomas, and it seems that he, appreciating the force of these considerations, refrained from appearing in person to procure the issuance of the warrants, as it appears that Mr. Ziegler represented the state in the application. Admitting that this change of front was in all respects bona fide, it is not such a one as appeals with any great force to a court when asked to order the issuance of the discretionary writ of mandamus.
It is, however, urged by the relator, and this is probably the real ground of= his ' contention, that, granting the binding force ,of the orders made by Judge Flannelly upon the officers named as men, such orders do not and cannot bind the state of Kansas; that it was not a party, could not have been made a [506]*506party, and could not have been bound had it been a party; and that, although Mayo Thomas, as county attorney, and thus representing the state, was enjoined from prosecutions, any other person may volunteer on behalf of the state to promote or effectuate such prosecutions notwithstanding the order of injunction. We think this would be but to juggle with judicial orders. No one but the county attorney, or the attorney-general on proper occasion, or persons deputized by them, may control prosecutions within a county. No claim is made that Mr. Ziegler was acting for the attorney-general. We may therefore fairly assume that he was acting for the county attorney in representing the state. We think, however, that where a prosecuting officer who under the law represents the state or a judicial officer who is an efficient part of the state’s machinery in effectuating the law has been enjoined in his official capacity from the doing of a given act,'it is substantially an injunction against the state.
In Harkrader v. Wadley, 172 U. S. 148, 19 Sup. Ct. 119, 43 L. Ed. 399, Mr. Justice Shiras, in speaking for the court, said:
“In the present case the commonwealth’s attorney, in the prosecution of an indictment found under a law admittedly valid, represented the state of Virginia, and the injunctions were therefore in substance injunctions against the state. In proceeding by indictment to enforce a criminal statute, the state can only act by officers or attorneys, and to enjoin the latter is to enjoin the state. As was said in In re Ayers, 123 U. S. 443, 497: ‘How else can the state be forbidden by judicial process to bring actions in its name, except by constraining the conduct of its officers, its attorneys, and its agents? And if all such officers, attorneys and agents are personally subjected to the process of the court, so as to forbid their acting in its behalf, how can it be said that the state itself is not subjected to the jurisdiction of the court as an actual and real defendant?’ ” (Page 169.)
[507]*507In the case of Arbuckle v. Blackburn, 51 C. C. A. 122, 113 Fed. 616, 65 L. R. A. 864, the object was to enjoin the food commissioner, an officer of the state of Ohio, from prosecuting certain alleged violations of a criminal law of Ohio, on the alleged ground of its unconstitutionality. In discussing the question now under consideration Judge Day said:
“This is virtually to enjoin the state from proceeding through its duly qualified and acting officers.
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The opinion of the court was delivered by
Cunningham, J.':
From the foregoing statement of facts it will be seen that we are asked to compel Judge Snelling to do the identical thing which Judge Flannelly, of the district court of Montgomery county, has forbidden him to do. Strong reasons must necessarily be found to warrant any such anomalous order. These are found to the satisfaction of the relator in the following propositions: That injunction will nev.er lie to restrain the prosecution of a criminal [504]*504action, and hence no magistrate can ever be enjoined from the issuance of a warrant for the arrest of an alleged offender; that, therefore, Judge Flannelly being without jurisdiction, the order of injunction was without force upon Judge Snelling, and was but a mere brutum fulmen, and not only might, but should, be ignored by the latter when applied to for process.
A very great majority of the cases found in the books, where application has been made to a court of equity for injunctions to restrain the prosecution of criminal actions, announce the doctrine that equity courts will not so interfere; especially is this true where it is sought by such suits to test the constitutionality or validity of the ordinance or law under which an alleged criminal is being prosecuted. The general doctrine is a very just, proper and correct one, and it is almost inconceivable that a court endowed with the high prerogatives of equitable jurisdiction would by their use interfere in the ordinary proceedings of criminal courts. It is true, however, that in some cases, rare indeed, equity courts have rightly interfered to prevent prosecutions of criminal actions. This is especially so where criminal proceedings are being prosecuted with a spiteful purpose, and in other cases for the purpose, and with the effect, of interfering with the property rights of the citizen. (The City of Atlanta et al. v. The Gate City Gas Light Co., 71 Ga. 106; P. & A. V. R. R. Co. v. Prowers Co., 5 Colo. App. 129, 38 Pac. 112; Dobbins v. Los Angeles, 195 U. S. 223, 25 Sup. Ct. 18, 49 L. Ed. 169.) We have yet to find a case where a refusal to enjoin is put upon a denial of the inherent power to do so.
However, this is all aside from the question involved, which is not whether Judge Flannelly, of the district court of Montgomery county, should have granted such injunction, but whether he had power to grant it. The question is not whether this court shall enjoin the officers of a criminal court from pro[505]*505ceeding in a criminal case, but whether it shall 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 had jurisdiction to issue injunction, and it had jurisdiction of the person of Judge Snelling. Whether Judge Flannelly improvidently or erroneously made the order of injunction 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. Any other rule would bring chaos into judicial proceedings, and clashing, worse confounded, between judicial tribunals.
This court has decided the matter in hand in the case of The State v. Hornaday, 62 Kan. 334, 62 Pac. 998, where in the syllabus it was said:
“Mandamus will not issue to compel the performance of an act the doing of which has been enjoined by another court vested with jurisdiction over the subject-matter and over the parties to the injunction proceeding, except that it may someimes issue in behalf of one who is not a party to the injunction, and whose rights can only be secured by its allowance.”
What we have said with regard to Judge Snelling applies with equal force to the county attorney, Mayo Thomas, and it seems that he, appreciating the force of these considerations, refrained from appearing in person to procure the issuance of the warrants, as it appears that Mr. Ziegler represented the state in the application. Admitting that this change of front was in all respects bona fide, it is not such a one as appeals with any great force to a court when asked to order the issuance of the discretionary writ of mandamus.
It is, however, urged by the relator, and this is probably the real ground of= his ' contention, that, granting the binding force ,of the orders made by Judge Flannelly upon the officers named as men, such orders do not and cannot bind the state of Kansas; that it was not a party, could not have been made a [506]*506party, and could not have been bound had it been a party; and that, although Mayo Thomas, as county attorney, and thus representing the state, was enjoined from prosecutions, any other person may volunteer on behalf of the state to promote or effectuate such prosecutions notwithstanding the order of injunction. We think this would be but to juggle with judicial orders. No one but the county attorney, or the attorney-general on proper occasion, or persons deputized by them, may control prosecutions within a county. No claim is made that Mr. Ziegler was acting for the attorney-general. We may therefore fairly assume that he was acting for the county attorney in representing the state. We think, however, that where a prosecuting officer who under the law represents the state or a judicial officer who is an efficient part of the state’s machinery in effectuating the law has been enjoined in his official capacity from the doing of a given act,'it is substantially an injunction against the state.
In Harkrader v. Wadley, 172 U. S. 148, 19 Sup. Ct. 119, 43 L. Ed. 399, Mr. Justice Shiras, in speaking for the court, said:
“In the present case the commonwealth’s attorney, in the prosecution of an indictment found under a law admittedly valid, represented the state of Virginia, and the injunctions were therefore in substance injunctions against the state. In proceeding by indictment to enforce a criminal statute, the state can only act by officers or attorneys, and to enjoin the latter is to enjoin the state. As was said in In re Ayers, 123 U. S. 443, 497: ‘How else can the state be forbidden by judicial process to bring actions in its name, except by constraining the conduct of its officers, its attorneys, and its agents? And if all such officers, attorneys and agents are personally subjected to the process of the court, so as to forbid their acting in its behalf, how can it be said that the state itself is not subjected to the jurisdiction of the court as an actual and real defendant?’ ” (Page 169.)
[507]*507In the case of Arbuckle v. Blackburn, 51 C. C. A. 122, 113 Fed. 616, 65 L. R. A. 864, the object was to enjoin the food commissioner, an officer of the state of Ohio, from prosecuting certain alleged violations of a criminal law of Ohio, on the alleged ground of its unconstitutionality. In discussing the question now under consideration Judge Day said:
“This is virtually to enjoin the state from proceeding through its duly qualified and acting officers. If the food commissioner may be enjoined from instituting such prosecution, why may not the prosecuting attorney, or any officer of the state charged with the execution of the criminal laws of the state? While the state may not be sued, if the bill can be sustained against its officers it is as effectually prevented from proceeding to enforce its laws as it would be by an action directly against the state. This view of the case, in our judgment, is amply sustained by the cases above cited, and by the later case of Fitts v. McGhee, 172 U. S. 516, 43 L. Ed. 535, 19 Sup. Ct. 269, in which the subject is fully discussed by Mr. Justice Harlan.” (Page 130.)
If we shall by fine-spun theories be able to distin-' guish between the state in its intangible entity and as represented by its officers and agents, the fact still remains that orders of injunction were made, by a court having jurisdiction of the persons against whom they were made, by which these officers were forbidden to do certain acts, and that one of these officers is now here as relator seeking an order of this-court to compel the other officer to disobey such orders. This is sufficient reason, if none other exist, why we should refuse the discretionary writ of mandamus. If the district court of Montgomery county was wrong in granting the injunction let its action be reviewed by due proceedings. The writ is denied.
All the Justices concurring.