dissenting. Gore’s petition to this court recited that he had petitioned a judge of Fulton superior court for an injunction, that said judge had refused the same, and that he had tendered a bill of exceptions to the order refusing said injunction. It further recited that unless a mandamus issued requiring said judge to sign an order enjoining petitioner’s electrocution, he would be denied due process. The substance of the petition for injunction, which was attached to and made a part of the petition here for mandamus, was, that petitioner was tried for murder, convicted, and sentenced to be electrocuted; that execution of the sentence was stayed by a supersedeas pursuant to a motion for new trial, upon the denial of which petitioner was resentenced to be electrocuted on July 16, 1926; thát execution of this sentence was “stayed” by an order of the Governor issued on July 10, 1926; that on September 11, 1926, petitioner was transferred to the State Prison at Milledgeville, for the purpose of being electrocuted under the order of the superior court directing that petitioner be electrocuted on July .16, 1926; that the warden of the State Prison received the sentence to electrocute on July 16, on September 11, but that he had received no subsequent order or sentence, though he had declared his intention *116to electrocute petitioner on September 14, and would so do unless enjoined by the superior court. The prayer for injunction reads: “Wherefore, your petitioner prays that said B. H. Dunaway, warden of the State Prison of Georgia, be enjoined and restrained from putting your petitioner to death by electrocution on the 14th day of September, 1926, or until he is legally authorized by this court so to do.”
There are several reasons why I can not concur in the ruling of the majority “that the mandamus be made absolute.” If the trial judge complies with this order rather than avail himself of the opportunity to avoid obeying the rule, what will be the result? He will, of course, sign and certify the bill of exceptions. That leads us to inquire whether any assignment of error is contained in the bill of exceptions. By reference to that document it will be found that there is but one complaint, and that is that the trial judge refused “to grant a restraining order and injunction as prayed for.” By reference to the petition addressed to the trial judge'it will be found that there is only one prayer, to wit, that the warden be enjoined and restrained from putting into execution the sentence of the court passed previously. Should, therefore, the trial judge sign and certify the bill of exceptions, this court will have before it a case involving only one question, and that is whether the trial judge should, for the reasons assigned in the petition, have granted the injunction. It was alleged that the warden had declared his intention of carrying out the sentence of electrocution on September 14, 1926. That date is passed, and to require the trial court at this time to grant the injunction will avail nothing. “Equity will not do a vain and foolish thing,” and for that reason the trial judge should not be required to sign and certify the bill of exceptions.
There is another reason why I do not concur. Should the bill of exceptions be signed, it will bring to this court a case wherein injunction had been refused (now moot), the argument of petitioner being that the trial judge misconstrued the statute of 1924. The details are fully set out by the majority. It will be observed, by reference to the majority opinion, that question is in this proceeding fully decided; and therefore, should the case come before us, it would present nothing for decision.
There is still another reason why I do not concur, which is *117fundamental. The ruling of the majority clearly violates the well-settled rule against interference by courts of equity with criminal prosecutions. A court of equity “will neither aid criminal courts in the exercise of their jurisdiction, nor will it restrain nor obstruct them.” Civil Code (1910), § 5491. In Gault v. Wallis, 53 Ga. at page 677, this court said: “This was a proceeding under the criminal law of the State, and we know of no principle of equity jurisprudence which confers upon a court of equity jurisdiction to interfere with the administration of the criminal laws of the State by injunction or otherwise. For a court of equity to assume jurisdiction in criminal cases, and enjoin the judgments of the courts, would be a novel and dangerous precedent to establish.” In Phillips v. Stone Mountain, 61 Ga. 386, Justice Bleckley said: “No injunction, or order in the nature of injunction, will be granted to restrain proceedings in a criminal matter.” In Garrison v. Atlanta, 68 Ga. 64, this court ruled: “Injunction will not be granted to restrain a criminal proceeding.”
In Paulk v. Sycamore, 104 Ga. 24 (30 S. E. 417, 41 L. R. A. 772, 69 Am. St. R. 128), the above principle was applied, and in the opinion it was said: “The principle upon which these decisions are founded has long been well settled by a great current of authority, both in this country and in England. In Re Sawyer, 124 U. S. 200, it was reaffirmed by the Supreme Court of the United States in the most emphatic terms. The first headnote in that ease is: 'A court of equity has no jurisdiction of a bill to stay criminal proceedings.’ And in the opinion of the court it is said: 'The office and jurisdiction of a court of equity, unless enlarged by express statute, are limited to the protection of the rights of property. It has no jurisdiction over the prosecution, punishment, or pardon of crimes or misdemeanors, or over the appointment or removal of public officers. To assume such a jurisdiction, or to sustain a bill in equity to restrain or relieve against proceedings for the punishment of offenses, or for the removal of public officers, is to invade the domain of courts of common law, or of the executive and administrative department of the government.’ Further on, in the same opinion, after stating that 'The modern decisions in England, by eminent equity judges, concur in holding that a court of chancery has no power to restrain criminal proceedings, unless they are instituted by a party to a *118suit already pending before it, and to try some right that is in issue there/ and that ‘Mr. Justice Story, in his Commentaries on Equity Jurisprudence, affirms the same doctrine/ it is said: ‘And in the American courts, so far as we are informed, it has been strictly and uniformly upheld, and has been applied alike whether the prosecutions or arrests sought to be restrained arose under statutes of the State, or under municipal ordinances.’ Citing ‘West v. Mayor &c. of New York, 10 Paige, 539; Davis v. American Society for Prevention of Cruelty, to Animals, 75 N. Y. 362; Tyler v. Hamersley, 44 Conn. 419, 422 [26 Am. R. 479]; Stuart v. Board of Supervisors, 83 Ill. 341 [25 Am. R. 397]; Devron v. First Municipality, 4 La. Ann. 11; Levy v. Shreveport, 27 La. Ann. 620; Moses v. Mayor &c. of Mobile, 52 Ala. 198; . . Cohen v. Goldsboro Commissioners, 77 N. C. 2; Waters Pierce Oil Co. v. Little Rock, 39 Ark. 412; Spink v. Francis, 19 Fed. Rep. 670, and 20 Fed. Rep. 567; Suss v. Noble, 31 Fed. Rep. 855.’” See also Hughes v. State Board of Medical Examiners, 158 Ga. 602 (123 S. E. 879), and cit.
Finally, I do not think that the majority have property construed the act of 1924. I think the proper construction of the act is that when the date named in the sentence-) or the date to which the electrocution has been postponed by a respite* or otherwise has passed, so that there is no day designated for such execution, the judge shall pass an order fixing a new date. When the 'Governor respited the convict sixty days, that fixed a day sixty days from the date already named.