
    Atchison, T. & S. F. R. Co. v. Commissioners of Jefferson Co.
    July Term, 1873.
    1. Res Judicata: Rule. To make a matter res judicata there must be a concurrence of the four conditions following, namely: (1) Identity in the thing sued for. (2) Identity of the cause of action. (3) Identity of persons and of parties to the action. (4) Identity of the quality in the persons for or against whom the claim is made.
    
    2. -: Parties. A decree enjoining county commissioners from issuing certain bonds, made in an action to which the persons claiming a right to them are not parties, is no bar to an action by such parties to compel the issue of those bonds. [Dixon Tp. v. Sumner Co., 25 Kan. 521.]
    3. Mandamus: Issue of Bonds. Mandamus is the usual and appropriate, if not the only, remedy to compel the issue by a county of its bonds in-payment of a subscription to the capital stock of a corporation.
    4. -: Discretion.' While mandamus is a writ largely within the discretion of the court, it would b.e an abuse of that discretion to refuse the-writ when it is the only adequate remedy to enforce a party’s rights.
    
    5. -: Enforcing Decree. Mandamus will not ordinarily be issued to-command the doing of an act enjoined by the decree of a competent court; but when one who was not a party to that decree has rights which, can be secured only by the writ of mandamus it may be issued.
    
    Original proceedings in mandamus.
    
    On the seventeenth of September, 1872, the Atchison, Topeka & Santa Fe Eailroad Company, as plaintiff, commenced an action in this court *against the board of county commissioners. of the county of Jefferson, as such, against the members of the board, by their proper names, and W. F. Gilluly, as county clerk,, defendants. An alternative writ of mandamus was issued, directed, to the defendants, commanding them, and each of them, to receive-from the Atchison, Topeka & Santa Fe Eailroad Company the certificate or certificates of full-paid stock to the capital stock of said railroad company to the amount of $150,000, as had been tendered by said railroad company, and that upon the receipt of the same that they duly issue and deliver to said railroad company, in payment for said capital stock, the bonds of said county of Jefferson in the sum and to the amount of $150,000, in accordance with the terms and conditions of the order of submission to the people of said county-made by said board of commissioners on the sixth of December, 1867, the election held on the seventh of January, 1868, and subscription made to the capital stock by such commissioners on the fourteenth of January, 1869, or show cause before this court on the first day of November, 1872, why they have not done so. (At said election of seventh January, 1868, there were 862 votes cast in said county of Jefferson in favor of making said subscription, and issuing said bonds, and 766 votes against said proposition.) The defendants allege that the election-order of sixth December, 1867, was made without the necessary and proper petition therefor; that more than a hundred illegal and spurious votes were cast in favor of the proposition at the election of seventh January, 1868; that a majority of the legal votes east at said election were against making the subscription and issuing the bonds; and that the subscription to the stock of said railroad company, made by order of said county commissioners on the fourteenth of January, 1869, was wholly without authority of law, and void.
    “And these defendants further answering, show, that after the holding of said pretended election on the seventh of January, 1868, and in the month of February, 1868, in the circuit *court of the United States in and for the district of Kansas, G. W. Norton, G-. W. Eyan, D. T. Swineburne, M. D. L. Simpson, David E. Beard, Saunders Eaves, A. Levy, O. H. Morrows, S. T. Bacon, George B. Hodge, Hugh Kennedy, H. H. Coleman, and J. F. Eaton duly exhibited their bill in chancery against the board of county commissioners of Jefferson county aforesaid, with others, parties defendant, and such proceedings were thereupon had in the said suit that said board of county commissioners appeared and answered the said bill, and a final decree was therein rendered, (a copy whereof is herewith filed, and made a part of this answer.) That in and by the said decree it was, by the said circuit court, (they having full jurisdiction, power, and authority in the premises,) adjudged, decreed and determined that the board of county commissioners of Jefferson county, and the county clerk of said county, be enjoined from subscribing to the capital stock of the Atchison, Topeka & Santa Fe Eailroad Company, and from issuing any bonds in payment thereof; that in pursuance of said decree, an injunction was duly granted and issued from the said court, and service thereof made and had upon the board of county commissioners of Jefferson county, which said injunction is still in force, and binding upon the defendants.” The decree made by the United States circuit court, referred to in the foregoing defense, and annexed thereto, was made and entered on the thirty-first of May, 1870, at the May term, 1870, of said circuit court, held at the city of Topeka, Hon. John F. Dillon, circuit judge, presiding. The decree is as follows: 
      “United States of America, District of Kansas — ss.: In the Circuit Court op the United States for the District op Kansas, in Chancery Sitting. May Term, 1870. Tuesday, May 31,1870.
    “G. W. Norton, G. W. Eyan, D. T. Swineburne, M. D. L. Simpson, David R. Beard, Saunders Eaves, A. Levy, O. H. Morrow, S. T. Bacon, George B. Hodge, Hugh Kennedy, H. H. Coleman, and J. E. Eaton, Plaintiffs, v. Board of County Commissioners of the County of Jefferson, John A. Coffey, William Gragg, J. C. W. Davis, Walter N. Allen, the Atchison, Topeka & Santa Ee Railroad Company, and the Atchison, Oskaloosa & Lawrence Railroad Company, Defendants.
    “And now, oñ this day, Came the plaintiffs herein, by Messrs. Hurd and Stillings, their counsel, * * * and thereupon *came A. H. Case and Walter N. Allen, solicitors and counselors of this court, and presented record evidence to this court that the board of county commissioners of the county of Jefferson, one of the defendants herein, had at a recent session of the board authorized them to appear in this action and represent said defendants herein, and had revoked any power and right that Clough & Wheat, Henry Keeler, William McNeil Clough, L. B. Wheat, David Brockway, or any other person other than Walter N. Allen and his associates, have heretofore had or proposed to represent said board of county commissioners in this action. And thereupon said A. H. Case and Walter N. Allen moved the court that they be permitted to represent the board ■of county commissioners of the county of Jefferson, and the said ■county, which motion was then by the court sustained, and the court then ordered that the said Allen and Case would be by it recognized as the solicitors and counselors herein of and for said board of county ■commissioners.
    “And thereupon said board of county commissioners by said Allen ■and Case, its counselors herein, withdraws its demurrer to the amended bill of complaint heretofore filed herein; and thereupon came Hugh ■S. Walsh, Uri Coy, and J. D. Rollins, by said Allen and Case as their solicitors, and at the request of their said solicitors and of the plaintiffs herein by their counsel, they, the said Walsh, Coy, and Rollins, are, as constituting the present board of county commissioners of the county of Jefferson, made parties defendant to this suit.
    “And thereupon the Atchison, Topeka & Santa Fe Railroad Company, by its counselor John Martin, and the Atchison, Oskaloosa & Lawrence Railroad Company, by its counselor C. K. Gilchrist, and John A. Coffey, defendant herein, by his counsel, requested that their respective demurrers herein to said amended bill of complaint be now heard; and William Gragg, defendant herein, by his counsel, asked that his plea to said amended bill of complaint be allowed.
    “And thereupon said plaintiffs asked to have their said amended bill taken as confessed as against the board of county commissioners of the county of Jefferson, and as against the county of Jefferson, the said board and the said county having declined to answer or make further defense; and thereupon the railroad companies aforesaid, by their counsel, objected to any decree being rendered herein against said board of county commissioners of said county, *and by counsel announced that they were ready to argue their respective demurrers herein, and that they were ready to show that the plaintiffs herein had not, nor any of them, set forth any cause of action in their said amended bill, and that there was no equity in said amended bill, and that this court had not jurisdiction of this action. And thereupon plaintiffs, by their counsel, dismissed their said amended bill as to the Atchison, Topeka & Santa Fe Railroad Company, and as to the Atchison, Oskaloosa & Lawrence Railroad Company, defendants herein, the court allowing said dismissal to be made without prejudice to the rights of said companies, or either of them. The said plaintiffs also then dismissed their said amended bill as to defendants J. C. W. Davis, William Gragg, and John A. Coffey.
    “And thereupon the Atchison, Topeka and Santa Fe Railroad Company aforesaid, and the Atchison, Oskaloosa & Lawrence Railroad Company aforesaid, by their respective counsel herein, claimed to and of the court that they are necessary parties to any suit having for its object the obtaining of such an injunction as is prayed for in said amended bill, and objected to the court further entertaining said amended bill as against the board of county commissioners of the county of Jefferson aforesaid, which objection was then and there by the court overruled.
    “It is therefore, now, by the court here, considered, ordered, adjudged, and decreed, that the said amended bill be and the same is now here taken as true and confessed as against the board of county commissioners of the county of Jefferson, and as against Hugh S. Walsh, Uri Coy, and J. D. Rollins, the present members of the board of county commissioners of said county. And it is also, now, by the court here, further considered, ordered, adjudged, and decreed, that all proceedings had or done by the board of county commissioners of said county of Jefferson pending this suit, and since the service of the injunction herein, in any way giving force and effect to any pretended or other subscription to said railroad companies, or either of them, be set aside and declared null and void. And it is further considered, ordered, adjudged, and decreed by the court, that the said board of county commissioners of said county of Jefferson, and the said Hugh S. Walsh, Uri Coy, and J. D. Rollins, who constitute the present members of said board, and their successors in office, be forever enjoined and restrained from making any subscription to the capital stock, to said above-named railroad *companies, or either of them, and that said board of county commissioners, and the said Walsh, Coy, and Rollins, county commissioners, and their successors in office, be forever enjoined from issuing any bond or bonds, or any other obligation, or levying any tax, on account of any pretended subscription to said railroad companies, or either of them.
    “This decree is not to prejudice the right of the said railroad companies, or either of them, in any respect, but is to be held, construed, and treated as if made in a suit to which said companies were not parties; but this saving of the rights of said railroad companies is not to be construed in any way to modify, as to said county of J efferson, or its commissioners, or their successors in office, the aforesaid order for an injunction, which is to remain in full force as against the said county, and its commissioners and officers, and their successors. * * * To which orders and decrees of the court the Atchison, Topeka & Santa Fe Railroad Company, and the Atchison, Oskaloosa & Lawrence Railroad Company, John A. Coffey, William Gragg, each of them, severally excepts.
    “John F. Dillon, Circuit Judge.”
    The plaintiff moved to strike out from the answer of the defendants the foregoing defense, pleading said decree in bar of this action; and the present hearing in this court is upon said motion.
    
      Martin é Case, for plaintiff, for the motion.
    In order to make a matter res judicata there must be a concurrence of the four conditions following: (1) Identity in the thing sued for; (2) identity of the cause of action; (3) identity of persons and parties to the action; (4) identity of the quality in the persons for or against whom the claim is made. 2 Bouv. Law Diet. 467; Benz v. Hines, 3 Kan. *397. In other words, in order to make a final judgment, there must be a real interest, a real argument, a real prosecution, a real defense, and a real decision. Broom, Leg. Max. 323, note 2; Id. 335; 3 Bouv. Inst. § 3105.
    The equity decree in the case of Norton v. Jefferson Go., in the United States circuit court, cannot be interposed, *as a defense to this action, for the following reasons: (1) The decree does not purport or indicate on its face that it is a final decree, or intended to operate as a decree against -the plaintiff in this action. Upon the contrary, it carefully and expressly guards and protects the rights of the plaintiff in this action, whatever those rights may be, from the effect and operations of the decree. (2) There is wanting in the two suits, or the equity suit and this action, identity in the thing sued for; identity in the cause of action; identity of persons and parties to the action; and identity of quality in the party for whom the claim was and is made.
    There is no privity between the plaintiff in this action and either of the parties to the equity suit. 1 Greenl. Ev. § 189; 3 Bouv. Inst. §§ 3101, 3102.
    The decree in the case of Norton v. Jefferson Co. is not a bar to this action, even if the suits were between the same parties, and upon the same subject-matter, for the reason that the present suit is upon a cause of action that has accrued to the plaintiff since the entry of the decree in the equity suit. Jones v. City of Petaluma, 36 Cal. 231.
    Upon the question of the plea of res judicata generally, as applicable in many respects to the facts in this case, we refer to the following authorities: Slocomb v. de Lizardi, 21 La. Ann. 355; Degelos v. Woolfolk, Id. 706; Beall v. Pearre, 12 Md. 564; Niller v. Johnson, 27 Md. 6; Robertson v. Wright, 17 Grat. 534; Fish v. Lightner, -44 Mo. 268; Burwell v. Knight, 51 Barb. 267; Yose v. Morton, 4 •Cush. 27; Barring v. Fanning, 1 Paine, 549; Harvey v. Richards, 2 Gall. 216; Thompson v. Roberts, 24 How. 233; Riggs v. Johnson 'Co., 6 Wall. 166; U. S. v. Council of Keokuk, Id. 514; City of Au.rora v. West, 7 Wall. 82; In re Howard, 9 Wall. 175; Mayor v. Lord, Id. 409; Supervisors v. Durant, Id. 415; Tams v. Lewis, 42 Pa. St. ■402; Kerr v. Hays, 35 N. X. 331.
    
      Thacker & Banks, for defendants, contra.
    
    The defendants having been enjoined by a court of competent authority, their acts in violation of the injunction are acts contrary to public policy, and prohibited by law, and are therefore void. Acts -done in contravention of the Sunday law are void. Smith v. Wilcox, .24 N. Y. 353. So, acts contrary to the terms of letters patent, are void. Broom, Leg. Max. 542. And it has been held that an officer who, being restrained by injunction from selling on execution, yet proceeds to a sale, will be held a trespasser from the beginning. Turner v. Gatewood, 8 B. Mon. 615. And a judgment obtained in violation of an existing injunction is void. Collins v. Fraiser, 27 Ind. 477. »
    To uphold the validity of bonds issued in violation of an injunction is to encourage the deliberate violation of judicial decrees, and is contrary to public policy. All contracts or agreements which have for their object anything which is repugnant to justice, or against the general policy of the common law, or contrary to the provisions •of any statute, are void. Newell v. People, 7 N. Y. 109.
    If the bonds when issued would be illegal, or if the act of issuing would be illegal, or contrary to public policy, or against the general •policy of the common law, or for any other reason void, this court will not command the act to be done. For the court, being organized to enforce the law, will not further its violation. State v. Perrine, -34 N. J. Law, 254.
    The injunction set up in the answer was granted in the United States circuit court, which court has full power and authority to grant the writ, and administer the relief, as also to punish for its violation. The injunction was granted upon hearing. It was not granted improvidently, the plaintiffs in this action appearing, and objecting. It is a final judgment and decree, and concludes the defendants. They may be punished for a breach of it at the suit of the parties to that action who are not defendants in this proceeding.
    
      This court will not by mandamus compel a party to violate the judgment of another court, and subject itself to punishment therefor, nor will it put such party in jeopardy. Ex parte Fleming, 4 Hill, 582; State v. Kispert, 21 Wis. 887; People v. Sturtevant, 9 N. Y. 264; State v. Perrine, supra; Ohio & I. E. Co. v. Wyandot Co., 7 Ohio St., 278.
    To allow this writ, is to review the judgment of another court;. This power does not exist. The judgments of the United States cir-. cúit court cannot be reviewed here, nor will this court deliberately-order a party to violate such judgment. People v. Dutchess C. P., Judges, 20 Wend. 658.
    To grant the writ is to impeach the judgment of the cir*cuitcourt, which cannot be done thus collaterally. Supervisors, v. United States, 4 Wall. 444.
    
      
      See Reasoner v. Markley, 25 Kan. 635; Hoisington v. Brakey, 31 Kan, 560; S. C. 3 Pac. Rep. 353; Hoge v. Norton, 22 Kan. 378; Auld v. Smith, 23 Kan. 65; Wilson Co. v. McIntosh, 30 Kan 234; S. C. 1 Pac. Rep. 572.
    
    
      
       An application to compel the performance by an officer of the district court of a duty devolving upon him by virtue of such office, should ordinarily be made in-the first instance to that court. State v. Breese, 15 Kan. 123. Discretion of court, State v. Anderson Co., 28 Kan. 70; Evans v. Thomas, 32 Kan. 476; S. C. 4 Pac. Rep. 833.
    
    
      
       When mandamus will or will not lie, see Hussey v. Hamilton, 5 Kan. 278, and note. State v. Stockwell, 7 Kan. 64, and note.
    
   Brewer, J.

This case is now before us on the motion to strikeout that portion of the answer which sets up a judgment of the cir-. cuit court of the United States for the district of Kansas as a defense to this application. The application is for a mandamus on the com-, missioners and clerk of Jefferson county to compel them to issue the-, bonds of the county to the plaintiff. The alternative writ alleggs a vote of the people, a subscription, and a compliance by the plaintiff with the terms of the subscription. The portion of the answer ob-. jected to sets up a decree of the circuit court enjoining the commis-. sioners and their successors in office from issuing these bonds. Is. it a bar? The suit as originally brought in the United States circuit court was between G. W. Norton and others as plaintiffs, and the board of county commissioners of Jefferson county, the three commis-,. sioners, and the county clerk, and this plaintiff, and another railroad company as defendants, and was to restrain the issue of these bonds. When the case was called for trial, a new board of county commis-. sioners having in the mean time been elected, the demurrer of the board was withdrawn, the action dismissed as to the two railroad companies, and a decree pro confesso entered against the commissioners and the county. The dismissal was, as stated in the order, “with- • out prejudice to the rights of said companies, or either of them,” and the decree itself recites that “this decree is not to prejudice the rights of the said railroad companies, or either of them, in any respect, , but is to be held, construed, and treated as if made in a suit to which said companies were not parties.” It needs no argument to show that this decree does not bar the plaintiff, or constitute any defense to this action, on the ground of res judicata. “In order to make a matter res judicata there must be a concurrence of the four conditions following, namely: (1) identity in the thing sued for; (2) *identity of the cause of action; (3) identity of persons, and of parties to the action; (4) identity of the quality in the ■ persons for or against whom the claim is made.” 2 Bouv. Law Dic. title, “Res Judicata” Benz v. Hines, 3 Kan. *397. That there should be “identity of persons, and of parties to the action,” is a necessary consequence of the rule of natural justice. Ne inauditus condemnetur. The plaintiff here was not a party to that decree; neither does it claim under any one who was such party. And in order to guard against any possible misconception, the decree especially affirms that it is without prejudice to the rights of the plaintiff. Of course, to say that a decree rendered pro eonfesso in an action between two parties, both of whose interests are adverse to the plai itiff’s, concludes this plaintiff, and bars its rights, is absurd.

But it is insisted that, whatever rights the plaintiff may have must be enforced in a different action; that no mandamus will ever issue to command the doing of an act which is forbidden to be done by a valid injunction order of a competent court, because thus the party would be placed between two fires, and liable to punishment for contempt in either event. It is said that the writ of mandamus lies within the discretion of the court, and that the mere fact that a party has rights will not necessarily entitle him to the writ; that no court will exercise this discretion in such manner as to place the defendant in jeopardy of punishment. That this writ, originally a prerogative writ, and solely a matter of discretion, still partakes of its original nature so far that it yet remains largely within the discretion of the court, cannot be doubted. State v. Marston, 6 Kan. *525. But in the exercise of that discretion regard must be had to the rights of the plaintiff, as well as to the dangers of the defendant. If those rights can be secured only through this writ, it would be simply an abuse of discretion to refuse it. If the plaintiff has any rights, the law guaranties to it a time and place and tribunal to enforce them. Those rights cannot be destroyed by a decree to which it is neither party nor privy. *It becomes necessary, therefore, to inquire into the matter of the plaintiff’s claim, and how rights like those it asserts can be enforced. This is an extraordinary remedy it is pursuing. The statute declares that “this writ may not be issued in any case where there is a plain and adequate remedy in the ordinary course of the law,” (Code, § 689;) and to the same effect are all the authorities. Equity will not interfere -when the law is potent to give relief; and in an equally emphatic sense is it true, that mandamus will not lie when relief can be obtained in the ordinary proceedings. The plaintiff asserts a subscription by the county of Jefferson to its capital stock, and a compliance by it with the terms of the subscription, and demands the bonds of the county, as promised by its subscription. Now, the remedy usually pursued in such cases is the one pursued by plaintiff, that is, to apply for a mandamus. And the right to this remedy has been uniformly sustained. Moses, Mand. 102; Cincinnati W. & Z. R. Co. v. Clinton Co. Com’rs, 1 Ohio St. 77 ; People v. Mitchell, 35 N. Y. 551 ; Com. v. Allegheny Co. Com’rs, 32 Pa. St. 223. And as mandamus will not lie where there is a plain and adequate remedy in the ordinary proceeding of the law, it follows that in the judgment of these tribunals, at least, the ordinary remedies of law are insufficient for a proper enforcement of the rights claimed. And indeed' it is difficult to see by what proceeding other than mandamus the bonds themselves could be obtained.

Counsel for defendants suggest two remedies which the plaintiff might have pursued other than mandamus — one a proceeding in equity to obtain a decree for a specific performance, and the appointment of a commissioner to sign the bonds for the county, and the other an action at law on the contract of subscription for the amount of the subscription. It would not be difficult, we think, to demonstrate the inadequacy of these remedies, even if their legality were beyond question. Nor, if both legal and adequate, would they avoid the difficulty; they only postpone it. For bonds, when issued, are taken with the expectation of payment. A judgment is but one step in a proceeding to ^enforce payment. But as execution will not run against a county, payment, whether voluntary or enforced, can only be by a tax, and the levy of a tax can be compelled only by mandamus. Now the injunction decree, in terms, forbids not merely the issue of bonds, but also the “levying any tax on account of any pretended subscription to said railroad company.” Hence, all proceedings to secure the rights claimed by plaintiff must contemplate a voluntary or enforced disobedience of the letter of the decree, and the enforced disobedience secured only by mandamus. If it be suggested that the plaintiff might apply to the circuit court to be made a party to that suit and for a modification of that decree, we reply that it was a party; that it in vain objected to being dismissed out of the case — the court (in the language of the decree itself) “allowing said dismissal to be made without prejudice to the rights of said companies, or either of them.” It seems to us therefore that this decree does not in any way cut off the rights of the plaintiff; and as a full judicial enforcement of these rights requires, first or last, the writ of mandamus, it should be permitted to pursue in the first place ihe remedy usually resorted to in like cases. But it may be said "that such ruling opens the way to a conflict between the state and United States courts; that the mandamus cannot be obeyed without a disobedience of the injunction, and vice versa; that each court will be constrained to enforce obedience to its commands, and hence will be collision. We have the high authority of j¡he supreme court of the United States to the contrary. Riggs v. Johnson Co., 6 Wall. 166; Weber v. Lee Co., Id. 210; U. S. v. Council of Keokuk, Id. 514. In those cases the same questions arise as are in this, though the position of the courts was different, the state court having issued the injunction, and the application for the mandamus being made to the federal courts. The injunction forbade the commissioners to levy any tax for the payment of certain bonds, the bondholders not being parties to the action. They sued in the federal courts, obtained judgment, and then applied for a writ of mandamus commanding the commissioners to *levy the tax, which was awarded them by the supreme court of the United States, notwithstanding the existing injunctions. It is worth while also to notice the subsequent action of the state courts. As a consequence of these decisions of the supreme court, writs of mandamus were issued in quite a number of bond cases. In one of them, the commissioners, resting on the injunction, disobeyed the mandamus. An attachment was ordered for contempt, and the commissioners arrested. A habeas corpus was issued by one of the justices of the supreme court of the state, who ordered the discharge of the commissioners, but on appeal the supreme court reversed this order and remanded the commissioners to the custody of the marshal. Ex parte Holman, 28 Iowa, 88. The Iowa chief justice, who delivered the leading opinion in the case just cited, was the judge of the United States circuit court who made the decree we are now considering. In that opinion he says: “It is a fundamental, vital principle of the law, that no man can be affected by any judicial proceeding to which he is not a party. No person can be concluded unless he has had a day in court. The law, before it decides against any man, or any man’s rights, gives him an opportunity to be heard. I do not say that the bondholders are absolutely necessary parties to such a suit; but I do hold that if not parties, they are not bound, and the proceedings and decree are, as to them, res inter alios acta.” The evident pains taken to so word the decree that no one could possibly suppose that the rights of the present plaintiff were affected by it, may be owing in no small degree to the case of Ex parte Holman.

The motion to strike out must be sustained.

(All the justices concurring.)  