Green, President,
delivered the opinion of the Court:
The awarding of prohibitions in these cases is resisted by the defendants’ counsel because, it is said, “neither of the petitions alleges that the judge had in any manner as yet exceeded his authority or acted without jurisdiction, but without proof alleges his intention in future to do so.” And again because the petitions “nowhere allege that the judge of the circuit court of Kan-awha county had no jurisdiction to award the injunction or grant the writ of error and supersedeas.” This position was not assumed by the defendants’ counsel in the argu-. ment of the question, whether this Court should award the rules nisi in these cases. Had it been then done, doubtless the counsel for the petitioner would at once have amended his petitions and inserted these allegations clearly and distinctly. This was therefore the appropriate time to make these objections. There is however nothing in these objections. The petitions clearly show that they are based on an alleged usurpation of power, and that the circuit court or judge had [498]*498ac>ted and was acting -without jdrisdiction. This might have been stated more positively and directly; but it abundantly appears this allegation is substantially made the petitionS-
It is also urge(j the certifications for writs of prohibition are premature in these cases, “as the petitions do not allege that efforts nave been made in the interior court to dismiss the supersedeas or dissolve the injunction complained of, or that any plea, motion or suggestion has been made to test or suggest the want of jurisdiction.” The old English authorities show that when the jurisdiction of the court depends upon matters dehors the record, a plea setting out these facts was necessary to be tendered to the inferior court before the superior court would grant a writ of prohibition. See Edmunds v. Walker, Carth. 166; Cox v. St. Albans, 1 Mod. R. 81; Bouton v. Hursler, 1 Barn. K. B. 71. The Supreme Court of Arkansas appears to have extended the cases» in which prohibition will not be awarded to cases where the want of jurisdiction appears on the face of the proceedings in the inferior court, where the petitioner for the writ of prohibition has made no effort to get relief in the court below by motion to dismiss the writ which may have been improvidently awarded, or in some other manner. See McMeechen et al., exparte 7 Eng. (12 Ark.) 70. This extension of the English rule however is un-sustained elsewhere and has not been followed in Virginia or West Virginia. \ The true view is well stated in Arnold & Parish v. Shields et al., 5 Dana (Ky.) 18, where the court say : “Nor was it necessary in such a case as this to show that a plea to the jurisdiction had been overruled; for if the magistrate had no jurisdiction, that fact appeared on the face of the proceedings; and in such case there being nothing extraneous to plead, a prohibition may be granted, either before or after judgment, without plea, because the defendant in the warrant could not by consent or waiver confer jurisdiction, if the magistrate had no cognizance of the case.”
[499]*499The true position, I understand, is that where on the face of the proceedings the inferior court not only has not jurisdiction and the parties cannot by consent or waiver give the court jurisdiction, it may be from proceeding, though the record does not show that the party praying for the petition, either by motion or suggestion, in any manner asked the inferior court to dismiss the proceedings. This was the principle upon which the Supreme Court of Virginia acted in Supervisors of Culpepper v. Gorrell et al., 20 Gratt. 495, and upon which this Court acted in Hein v. Smith, judge, et al., 13 W. Va. 358. In each of these cases a judge of "the circuit court had granted a writ of error and supersedeas to a judgment of the county court, when he had no jurisdiction to grant such a writ; and the Supreme Court of Appeals awarded writs of prohibition, though the petitioners had made no motion in the inferior court to dismiss the writs of error and supersedeas as improvidently awarded. Such a motion, or a motion to dissolve an injunction, cannot therefore be held as essential before application can properly be made for a writ of prohibition. In some cases this Court might decline to act in an application for a writ of prohibition till such a motion was made in the inferior court; for this writ is not granted ex debito justitice, but it is rather to bé granted or withheld according to the circumstances of each particular case, and in the exercise of a sound judicial discretion.
In the cases before us I do not doubt but that we should act on the application for the writs of prohibition now, though no motion was made in the circuit court to quash the writ of error and supersedeas or dissolve the injunction as improvidently granted. The injunction was obviously ancillary to the writ of supersedeas, which was granted after what was the equivalent of an argument by the petitioner’s counsel, he by letter having called the attention of the judge to the decision of this Court in Dryden v. Swinburn, reported in this volume [500]*500P* 234 ; and great public inconvenience' would result from our refusal to act on these writs of prohibition till a form was gone through, which from the record we have every reason to believe would be idle,
The counsel for the defendants also insists that, the petitioner being in contempt of the circuit court by violating its injunction order, could not now move said court to dissolve the injunction, till he had purged himself of his contempt; and that this court by awarding the writ of prohibition prayed for, even if it were a proper case to grant the same, would in effect dissolve the the injunction and it ought not to do so, till the petitioner is purged of his contempt. It is true that a party in contempt is not as a general rule entitled to a favor from, the court, till such contempt is purged. Still the court will sometimes dissolve an injunction on the motion of a defendant, though he be in contempt for violating the injunction order. 1 Stockton Ch. (N. J.) 110. If this principle can properly be applied in an application for a writ of prohibition in any case, it would seem to have no application in cases like .those now before this court; for if, as is claimed we should do, this Court should grant a prohibition in this case, it must be oh the ground that the writs of error and super-sedeas and writ of injunction were awarded by the circuit court without any authority and when he had no jurisdiction to award such writs in the class of cases to which these cases belong; and if this be so, that his orders granting such writs are null and void, and a violation of them by the petitioner is no contempt of the court; for it is no contempt of a court to violate an order-which the court had no jurisdiction to make. See People v. O’Neil, 47 Cal. 109.
It is true it the judge of the circuit court of Kanawha county had jurisdiction to award this injunction, the petitioner is in flagrant contempt of the court in violating its order; but in such case we would certainly ru-fuse to award the writ of prohibition, because the circuit [501]*501court had jurisdiction to award the injunction, and it would be done on its merits rather than on the contempt in which the petitioner would in that case be.
It is urged by the defendants’ counsel that a writ pf error ought not to be issued, when a party has a complete remedy in some other and more ordinary form, sustain this he refers to ex parte Brandlacht, 2 Hill 367; Bedford v. Wingfield, 27 Gratt. 333; People v. Wayne, 11 Mich. 393; Low v. Crown Point, 2 Nev. 75; People v. Marine Court, 2 Barb. 341; Sweet v. Hubbert, 51 Barb. 312; State v. La Crosse, 11 Wis. 50. That this proposition is true is not controverted. there be another adequate remedy, this writ ought not to issue. But when an inferior court has usurped jurisdiction, the remedy by appeal or writ of error may be very inadequate; and if this has been done in this case, the public would suffer great loss, if we permitted the usurpation of power, if such it be, to continue till the case was finally decided by the circuit court, and would hold that this usurpation could only be properly corrected by appeal and writ of error. If such was our holding, the people having business in the circuit court of Kanawha county would be subjected to great inconvenience and loss for a long period ; as in the position of things, as disclosed by the record in this case, there must to a very great extent be a suspension ot business in the clerk’s office of Kanawha county occupied by a clerk whom the judge of the court refuses to recognize- as clerk. The remedy by appeal and writ of error in these cases is entirely inadequate to meet the necessities of the case; and when this is the case, and the judge or court is proceeding without having any jurisdiction, or by usurpation of power, a writ of prohibition ought to issue, although an appeal or a writ of error or supersedeas would lie to any judgment he might hereafter render. This position is sustained in the State of Virginia and elsewhere. See Supervisors, &c., v. Gorrell, 20 Gratt. 484-552; Thomas v. Mead et al., 36 Mo. 246. The writ of prohibition and a writ of error If [502]*502and supersedeas may be and are sometimes concurrent remedies.
' Having disposed of the preliminary questions, I will now consider the questions involved in these cases on ^heir merits. To do so we must clearly understand the situation of the several parties and their respective rights, when the judge of the circuit court of Kanawha county granted the writ of error and supersedeas and the injunction complained of. The petitioner, Swinburn, received at the election held October 8, 1878, a plurality of the votes for clerk of the circuit court of Kanawha county for the next term of six years, beginning January 1, 1879. The proper officers gave him a certificate of his election; but John Dryden contested it before the county court of Kanawha county. That court dismissed this proceeding on. the part of Dryden, on the ground that in their judgment they had no jurisdiction to try the same at that term of the court. After this case had been dismissed, and before any proceeding was taken to bring the judgment of the county court before the circuit court for review, the petitioner, Swinburn, qualified as clerk and gave his official bond, which was approved by the county court of Kanawha county. Subsequently Dryden obtained a writ of eertiorari to the judgment of the county court from the circuit, court of Kanawha county. All this occurred prior to January 1, 1879, when the term of office of the circuit clerk commenced. Who was legally the clerk of this court on January 1, 1879, and pending the controversy between said Swinburn and Dryden? The judge of the circuit court thought that the old clerk, W. E. G. Gillison, was properly the clerk of the court, pending this controversy, though his term of service ended on December 31, 1878.
The Constitution of our State, see Art. IV, §6, provides that “all officers elected under this Constitution shall continue to perform Ihe duties of their offices until their successors are elected and qualified.” The successor of W. E. G. Gillison, as the clerk of the cir[503]*503cuit court of Kanawha for the term ending December 31, 1878, was elected on October 8, 1878. The commissioners appointed to conduct the election at the courthouse at the proper time and place ascertained declared the result of the election, and certified that Thomas Swinburn was elected; and in the time manner required by law he qualified as such clerk, there being when he qualified no controversy pending by which his right to this office was disputed. The fact that Dryden subsequently obtained from the circuit court a writ of certiorari to review the judgment of the county court could eonfei;, on the old clerk, W. E. G. Gillison, no right to hold over, after his term expired ; for before that time his successor had been elected and qualified; and under the Constitution the term of office of W. E. G. Gillison could only be extended by the failure of his successor to be elected and qualified. This certificate and qualification were prima facie evidence that Swinburn was the clerk from and after January 1, 1879; and the former clerk should then have surrendered the office, its books and papers to Swinburn; and he might have been properly enforced soto do. Crowell v. Lambert, 10 Minn. 369; The People v. Miller, 16 Mich. 56.
The circuit judge was therefore in error in his opinion, which he states in his answer to the rule issued by this Court against him, that the old clerk, W. E. G. Gillison, remained the clerk of this court till the controversy between Swinburn, who had been declared elected by the commissioners and duly qualified, and Dryden was terminated. But this controversy was ended on September 12, 1879, when the county court declared Swinburn elected. And when this Court finally adjourned on September 27, 1879, this judgment became operative and binding. From that day, according to the views of the judge of the circuit court himself, Swinburn was the clerk of that court. It is true that by this order of the county court this judgment was suspended for the space of twenty days upon the contesant, Dryden, executing a suspension-[504]*504bond, to afford him the opportunity of applying for a writ of error and supersedeas to the judge of the circuit court of Kanawha county. No court by the common law. could thus suspend the operation of its judgment. This power so t0 suspend its judgment in any case is conferred by the 4th section of ch. 17 of Acts of 1872-3, p. 57; and it is expressly confined to such eases as may be taken up to an Appellate Court by writ of error and supersedeas. And this Court had expressly instructed the county court of Kanawha county that this casa could not be so taken up. The portion of said- order then which undertook to suspend this judgment of the county court for twenty days was a nullity, the court in a case of this character having no right so to suspend its judgment. Nor was the question, whether this was a case in which a writ of error and supersedeas would be taken, a matter on which the. county court had any right to pass a judgment, because this court had so decided, and it was the law of this case binding not only on the county court but also on'the circuit court and on this Court; for we have not the power to reverse this decision, and if we were of opinion that we erred in'holding in this case a writ of error and superse-deas did not lie to the judgment of county court, we could not in this case hold otherwise.
It is true the judge of the circuit court in his answer to the Syiiabns i. mje issued by this Court does say : “ Respondent denies that_he awarded said writ of error and supersedeas contrary to the mandate of this court, but, as he understands said mandate, said writ was awarded in direct conformity with the principles laid down and established in the case of Dryden v. Swinburn.” But it is obvious from an inspection of the mandate that the judge is entirely mistaken, and that the writ of supersedeas was awarded iri clear violation of the mandate of this Court. An opinion of this Court accompanied this mandate as a part thereof; and the cause being remanded, the court below was directed to proceed with this case according to the principles laid down in this opinion. This opinion [505]*505says: “ But our statute being silent as to tíié Gases in which the writ of error or swpersedeas may be used Avhen a judgment oí a county court is to be reviewed, I eon-elude that the common law mode of review is in force in this State, when a judgment of the county court is to be reviewed; and therefore when a judgment oí a county court is reviewed by the circuit court, it must be done by writ oí certiorari in such cases as by the common law could only be reviewed in that manner. The judgment rendered by the county court in the case before us was one of those oases.” It would seem impossible to use language which more clearly states that a writ of error and supersedeas could not be issued by the circuit court to review the judgment of the county court in this case. Y et the circuit court, in direct violation oí views so clearly expressed, has issued such writ of error and supersedeas. I cannot suppose that language so clear and explicit has been or could be misunderstood.
From the argument of counsel for the defendants it would appear, that while this portion of the opinion of this Court was not misunderstood, yet by reasoning from other portions of the opinion it was thought it could be shown that this conclusion of the Court was unsound. If this were true, it is clear it would not justify the violation of a plain instruction of this Court in no way ambiguous. But in truth there is no such inconsistency in the opinion of this Court. This supposed inconsistency arises from this Court in a prior portion of its opinion having decided that the constitutional provision, section 2, Article VIII: “The Supreme Court of Appeals shall have appellate jurisdiction in civil causes, where the matter in controversy, exclusive of costs, is of greater value or amount than $100.00” covered a controversy about an office, and that as chapter 17 of Acts oí 1872-3, page 56 says : “That a party to a controversy in any circuit court may obtain an appeal, writ of error or su-persedeas from a judgment, decree or order, if the matter in controversy, exclusive of costs, is of greater value or [506]*506amoaut than $100.00, wherein there is a final judgment or decree,” a party in any controversy, other than a chancery suit, might obtain a writ of error and superse-deas from a circuit court, and that by the words “any C0Qtr0versy” was included a contest about, an office. But this Court aiterwards in this opinion quote the 3d section of chapter 15 of Acts 1872-3, p, 43, which says : “ The circuit courts shall have the supervision of all' proceedings before the county court by mandamus, prohibition and certiorari. They shall have appellate jurisdiction upon petition and assignment of error in all cases of judgment, decrees and final orders rendered by the county court, when the matter in controversy, exclusive of costs, is of greater value than $20.00.” The court said it is true the words : “ Orders when the matters in controversy exceeds $20.00” include controversies about offices exceeding $20.00 in value, and that appellate jurisdiction is given to the circuit court in such cases upon petition and assignment of errorbut this by no means justifies the inference of the defendants’ counsel, who says this Court must have intended to hold that a writ of error and supersedeas lay to the judgment of a county court in a controversy about an office. This Court in that case reached are exactly opposite conclusion. The words “ upon petition and assignment of error ” used in this statute mean, by writ of error and superse-deas or by certiorari, as both these proceeding are by petition and assignment of error, and as the writ of certiorari is expressly reserved to the circuit court in this section, our conclusion in that opinion was, and still is, that it was clearly retained as a mode of appeal from the county court to the circuit court, and the common law method of appealing was unchanged by this section, and therefore as the writ of certiorari was the the only mode at common law by which appellate jurisdiction .could be used when the controversy was one provided for by the statute in a contest about an office, therefore it remained the only mode of taking up a case [507]*507of that sort for review from the county court to the cir-cnit court. The court in that opinion point outthe striking difference in the language, where a case is to be reviewed by the Supreme Court of Appeals which has been decided by the circuit court. The statute then says expressly, that a party to such controversy may obtain a writ of error or supersedeas to the Supreme Court. -This guage has a very different meaning from the other with reference to the review by the circuit court of the county court which is, “ May exercise appellate jurisdiction upon petition and assignment of error,” as these words include certiorari, which the other does not.
These were the views entertained by this Court then ; and it does seem to me they were expressed then in language just as clear as that now used, and ought not to have been misunderstood.
It is argued, however, that the expression of the opinion by the President of this Court in that caáe, that no writ of error or supersedeas lay in that case from the judgment of the county court, was an obiter dictum, and not binding on the circuit or county court. When a case is remanded to an inferior court for further proceedings, that court can in no case regard anything which relates to any action which the inferior court may take in the case after it is remanded, as obiter dictum. When this case was remanded to the circuit court for trial, it was required to decide the case ; and whether it decided it in' favor of the contestant, or contestee, the statute-law required it, if a writ of error or supersedeas lay to such a judgment, to grant to the opposite party on request a suspension of such judgment, and otherwise, the law forbade such a suspension of judgment. In order, therefore, that it might know whether it should grant a suspension of judgment, or not, it was proper for this Court to consider and decide, whether a writ of error and supersedeas did lie. It did decide this point after argument and on mature consideration ; and the attempt to avoid it by calling it an obiter dictum is as unreasonable [508]*508as ^2 attempt to put another meaning on what was said *>7 the CoUrt-
Nor is there any force in the position assumed by counsel for the defendants that, as section oof Article yijl 0f the Constitution, p. 26, provides: “It shall be the duty of the court to prepare a syllabus of the points adjudicated in each case concurred in by three of the judges thereof, which shall be prefixed to the published report of the case” that because it was not stated in the syllabus of the case that a writ of error and supersedeas would not lie from the judgment of the county court in such a case, therefore the circuit court was not bound not to award such a writ, though so instructed in the opinion. The syllabus is intended for the information of the profession and courts in the State generally. It is not required to be certified'to the judge in the particular case, but only the opinion ; and his specific instructions in this particular case are often not inserted in the syllabus, as, for instance, instructions not to allow a particular credit to a party in a suit. Of course such a credit cannot be afterwards allowed, though nothing be said about it in the syllabus.
The awarding therefore of a writ of error and supersedeas Syiiabua2. deas to the judgment ot the county court of September 12, 1879, was a usurpation of power by the circuit court judge. He had no jurisdiction to award such a writ; and his order so doing must be regarded as a nullity, and he must be prohibited from proceeding thereon.
On the 20th of September, 1879, Swinburn got the possession and control of the clerk’s office of Kanawha county, and still holds the same by force and threats. The judge of the circuit court of Kanawha county being of opinion that the old clerk, Gillison, was at present entitled to the office and its emoluments, at his instance issued an injunction prohibiting Swinburn from interfering with his performance of its duties or controlling the office, its books or papers till the further order ot the court. This proceeding was, properly speaking, auxilliary to the writ [509]*509of error and supersedeas issued by him at the same time; and the writ of error and supersedeas being a void pro-ceedingj the judge having no jurisdiction to issue such a writ in the case, the proceeding by injunction in aid of must also be held null and void, the judge having no jurisdiction to award an injunction m such case. But it it were regarded as an original and independent proceeding, it must still be held null and void; for it is well settled that where the controversy is the right to an office, such right being a pure legal right, the legal remedies which the law affords in such a case oust all equitable jurisdiction. See Updegraff v. Evans, 47 Pa. St. 103; Hayner v. Hayberger, 7 Watts & S. 104; Hulman v. Horcoup, 5 Ohio St. 237; Maryland v. Jarrett, 17 Md. 303; Sherman v. Clarke, 4 Nev. 138; State v. Taylor, 15 Ohio St. 137; Thomas v. Mead, 36 Mo. 232; Tappan v. Gray, 9 Paige 507; People v. Draper, 24 Barb. 265.
It is argued however by the defendants’ counsel that courts of record have always the power by injunction, or otherwise, to preserve the papers and records of the court and prevent the unlawful and forcible seizure and detention of the same. But in the present case the forcible seizure of the. office and its papers was when the writ of injunction issued, a past event, and the writ was not issued to prevent its occurrence. These books and papers, when the writ issued and now, are being held and detained not unlawfully, but by a party who is entitled to their custody and care at this time. This argument of the counsel for the defendants may be well answered in the words of the Court in Thomas v. Mead, 36 Mo. 245. “There was not the shadow of an equity in the bill of the defendant, properly considered, on which to ground an injunction at all. It is unnecessary to deny that, in certain cases, an injunction may be granted, mainly on the ground that an immediate and irreparable injury is threatened to be done, for which otherwise there would be no adequate and complete redress; and if a stranger without right or authority were [510]*510unlawfully interfering with the rightful possession by the clerk of the records, books and papers of his office (especially if the court itself were not in session) it is very probable such a case might arise as would give the the circuit court jurisdiction to interpose by injunction against such person. But plainly, on the face of the defendant’s bill, this was no such case, but only a transparent pretense of such a case. It can not be justly considered otherwise than as a sheer abuse of the process of injunction.” In that case the Supreme Court issued a writ of prohibition.
I have so far taken no notice of the order entered on the record book of the circuit court of Kanawha county that its last term and referred to in the answer to the rule, in which it is set out thatSwinburn asked the court •to recognize him asclerk, and to give him the possession and control of the clerk’s office and the books and papers thereof, and the decision of the court thereupon, that under the acts and Constitution of the State the said Swinburn was not then entitled to exercise the functions and perform the duties of clerk of said court, or to fill, or to hold, the said office pending the trial of the contest for the said office, “and that the former clerk of said court, W. E. G. Gillison, was entitled to hold over and fill said office, and perform all its duties, and receive all its emoluments or fees, until the contest aforesaid shall be fully decided.” The circuit court of Kanawha county had obviously no right in this ex parte proceeding to decide-who was then entitled to said office. It can be regarded as only the expression of the opinion of thejudge and his determination to recognize Gillison as the clerk, an opinion which he might, whenever he pleased change. As a decision of the court this order must be regarded as a mere nullity. It could have been set aside by the court at any time without notice to any one; and is obviously not binding as a decision. The law of course recognizes no such mode of determining who is entitled to an office. '^Thejcourt had no jurisdiction to decide this case in [511]*511this manner; and its order is a mere nullity. A writ of prohibition may as well be granted to prohibit proceedings in a court of chancery US' to common a law court. Firebrass’ Case, 2 Salk. 550; Thomas v. Mead, 36 Mo. 232.
I conclude that the granting of the writ of error and supersedeas to the judgment ot the county court oí awha county, of September 12, 1879, as well as the awarding of an in] unction against Thomas Swinburn on the bill filed by W. E. G. Gillison, were acts done by the judge of the circuit court of Kanawha county without authority and without any jurisdiction ; and that they are null and void; and writs of prohibition should be awarded to prohibit said court from proceeding in said cases, and to prohibit the defendants, Dryden and Gillison, respectively from proceeding in the premises; and that the petitioner should recover in one of these cases his costs in this court expended against said Dryden, and in the other against said Gillison.
ÜAYMOND AND JOHNSON, JüDGES, CONCURRED
Writ op Prohibition Awarded.