dissenting.
The Chief Justice having decided Fo concur in the opinion filed by Mr. Justice Gabbert, I deem it my duty to dissent from the judgment. I cannot agree with the majority of the court in any phase of this case. I have already said, in an opinion filed on the 28th of October, all that I care to say concerning the contempt charged against the attorney general and the state board of assessors. If, as stated in the oral opinion of the Chief Justice, they were guilty of the contempt charged against them, they should have been punished. It does not compel respect for the process of the court, nor vindicate its dignity, to find persons guilty of a flagrant and wilful contempt and then discharge them. That the judgment, so far as it shall be followed, will be a precedent for extending the summary proceeding of contempt into the field of conjecture and speculation as to what is ethically right, is sufficient reason for dissenting from that branch of the judgment. This case illustrates the difficulty of applying any such rule. In pronouncing the oral judgment, that, which in the statement of the case is only an obligation not to take the law into one’s own hands after having applied to *251a court for redress (for the record shows that the board completed its work and adjourned, on the 3d of October, before the court had construed the effect of the prohibition or cautioned the attorney general or the members of the board against certifying the assessments), and which, if an obligation at all, is an obligation imposed by the law, and not by this court, is spoken of first as an order of this court implied from taking jurisdiction, and after-wards as an order which this court had the right to make and did make; until finally the conclusion seems to be that this court had enjoined, instead of refusing to enjoin, the state board of assessors.
.The other branch of the judgment, that assuming the power to declare null and void the assessment of property by the state board of assessors and the justice of so doing, I have not discussed further than to say that, in my opinion, this court has not that jurisdiction. The reasoning of the court in the written opinion seems to be, that an act which does not, in the case under consideration, inflict any legal injury is nevertheless theoretically “wrong” because, under other circumstances, an act in violation of an injunction might inflict a legal injury. That the court should therefore not look to see whether the act has really inflicted any such injury, but should enforce an absolute, unqualified, and unreasoning inhibition of such conduct. And that, in the enforcement of the inhibition, the fact that the act so determined to be wrong is the act of a board of public officers, proceeding within the strict line of its duty, and is an act that is required for the raising of public revenue; and the fact that the injunction was void because the judiciary is powerless, under the constitution, to interfere with the executive department, are *252matters entirely foreign to the consideration of the court. In other words, that the case should not be determined in the light of the rights of the parties at the end of the litigation, but in the dark.
It is stated by Langdell and other text-writers that courts of equity, when unaided by statute, have no jurisdiction in rem, and can enforce their decrees only by execution against the body of the defendant. Langdell on Equity Pleading, § 43; Story, Equity Jurisprudence, § 891b.
Accordingly, Langdell says: “It is often said to have been one of the functions of the chancellor to set aside, for fraud or other sufficient cause, judgments, awards, accounts stated, conveyances, and contracts; but this is an incorrect use of language. If a judgment had been obtained by fraud, he would enjoin the judgment creditor from enforcing it; if an award or an account stated was infected with fraud, he would not permit it to be used against the defrauded party, either as a cause of action or as a defence to the original cause of action; if a conveyance of property was obtained by fraud, he would compel a reconveyance of it; if a written instrument purporting to constitute a contract was infected with fraud, he would, in a proper case, require it to be delivered up and cancelled; but he never did nor could set anything aside by his decree. Indeed, it may be stated broadly that a decree in chancery has not in itself (i. e„ independently of what may be done under it) any legal operation whatever.” Lang-dell on Equity Pleading, § 43, note.
I am therefore of opinion that this court would have no jurisdiction to declare the acts of the state board of assessors null and void, even if it had held the injunction to be valid; and that its only power *253would be to order the board to recall the assessments and that the members of the board stand committed until they complied with the order. But, the board having made the assessments and transmitted certificates which had long before the decision been acted upon by various county officers, it was beyond the power of the board to recall the assessments, and the court thereupon assumed the power to annul the assessments by its simple fiat.
Under the constitution the people gave to this court supreme power, for there is no appeal from its judgments; but such power was given with the understanding that it would be exercised in subservience to the known and established maxims and principles of jurisprudence.
Again, even though it were within the jurisdiction of the court to annul the acts of public officers by its mere fiat, it is also essential that there be before the court a party having a legal right to demand that those acts be annulled. Where a party to a suit has not been wronged, and can show no right that has been infringed, and the court renders judgment for him, it gratuitously bestows upon such litigant its judicial favor; and no judgment was ever sustained, or defended, upon the ground that courts have the power. to bestow such favors. I" understand it to be now disclaimed that the judgment declaring the assessments void is in anywise predicated upon the power to punish for contempt; for, regarded as a punishment, it hurts the people of the state generally to exactly the same extent that it does the individual members of the board. The judgment is therefore purely a civil judgment, founded upon a civil right; and the benefit conferred by the judgment, whether it is called a “status” or is designated *254as “restoring things to the same plight and condition as they existed” at some other time, I take it, is a judicial gift nevertheless, unless at the time of the judgment the party bnefitted by it was legally entitled to demand that judgment.
The right to demand the judgment given the companies cannot be based in any degree or to any extent upon the violation of their void injunction. The case of Kaehler v. Dobberpuhl, 56 Wis. 497, decides that the punishment of a contempt is very different from the ordering of indemnity for the acts constituting the contempt. In that case a Mrs. Kaehler secured an injunction against Dobberpuhl, who was treasurer of the town of Cedarburg, to restrain him from collecting a certain tax which had been levied upon her real estate. Notwithstanding the injunction, Dobberpuhl proceeded to attempt to collect the tax, levied upon personal property of the plaintiff, offered the same for sale, and sold part of the property levied upon. She then replevied the property from the possession of Dobberpuhl. Upon proceedings for contempt, the circuit' court adjudged that Dobberpuhl was guilty of contempt, imposed no fine or imprisonment as a punishment, but entered judgment that he pay to the plaintiff a “sufficient sum to indemnify her, and to satisfy her costs g.nd expenses therein,” which sum the court ascertained and fixed. Upon appeal from this judgment, the supreme court says: “The order of the court from which this appeal is taken was not made to vindicate the just authority of the court, and as a punishment for the contempt of such authority by the defendant, but to indemnify the plaintiff in the action for supposed losses and injuries which she claims t© have sustained by reason of the *255violation of the order of the court made to protect her rights. As we have held on appeal from, the order of the court refusing to dissolve the injunctional order, by the violation of which the appellant claims to have been injured, that the circuit court should have dissolved the same, for the reason that the plaintiff’s complaint and the other evidence in the case show conclusively that no sufficient cause had been shown for issuing the same, and that the same was improvidently issued, it is evident that the order from which the appeal is taken cannot be sustained. It would be clearly inequitable and unjust to indemnify the plaintiff for the violation of an injunction which never ought to have been granted to her, and for the obtaining of which she would be liable to the defendant in damages.”
In the case just cited, the injunction was not void, but it was improvidently issued. The distinction is sometimes important. A party may be punished for violating an injunction, though improvidently issued. He cannot be punished for violating a void injunction; and in neither case can indemnity be awarded for its violation. An order that Dobberpuhl place the plaintiff in statu quo, by restoring to her the property that he had sold in violation of the injunction, would have been equally erroneous, and for the same reason,—it would have been an order for indemnity for the violation of the injunction; and the substitution of equitable indemnity forjegal indemnity would not affect the result. Dobberpuhl was in contempt of court, as certainly as (by the judgment rendered here) the attorney general and the members of the board of assessors were in contempt; for it is no-justification of the violation of an injunction that it was' improvidently granted. The authority of the cir*256cuit court to indemnify the plaintiff in that case, appears to me much stronger than the authority of this court to order indemnity in this case,—at any rate, the real parties in interest were before the court, while in this case the people of the state were in no sense represented in the contempt proceedings.
Something additional to the violation of the injunction was certainly necessary before the court could award the railroads one cent as damages, or give them a judgment inrem as an indemnity orto restore them to a better position with respect to the assessment of their property than they then occupied; and that something additional must be in itself sufficient to warrant the judgment, because they had absolutely no right to preserve the status caused by or based upon their void injunction. This additional right, it is said, is found in the fact that the board applied to this court on the 25th of September for an alternative writ of prohibition against the court that had issued the injunction, and secured such writ; and, while the hands of the plaintiffs were thus tied and they were prevented from using the power of that court to maintain the void injunction, the board made and certified the assessments. This is said to be trifling with the court, to be a flagrant and willful contempt of court, and to be punishable as such. Suppose it is; it was not so punished. It is made the basis of a judgment awarding a substantial advantage to the companies in their efforts to prevent the assessment of their property for taxation; and however great the affront to this court may be considered, it conferred upon the companies no right of exemption from taxation, and conferred upon this ■court no jurisdiction to award the companies indemnity. I do not wish to be understood as conceding *257that the act of the board was, under the circumstances, a trifling with the court. The injunction had been issued ex parte, by a judge who had already declared the revenue law unconstitutional; a motion for a change of venue had been filed by the attorney geseraá, and after considerable delays it had been taken under advisement, and the attorney general was apparently powerless to secure any sort of action apon it. In that dilemma he procured the alternative writ of prohibition and proceeded at once to have the assessment made. It was an instance of “Government by Injunction,” too oppressive and unjust to permit of the delay incident to its taking the ordinary course of litigation; and the course pursued was, in my opinion, justifiable. If the court chose to consider the certifying of the assessments as anticipating the action of the court upon the writ of prohibition, the correct course would have been to dismiss the writ of prohibition. When the court decided to entertain the writ upon the ground stated by Mr. justice Gabbert, that “Behind the relators in the prohibition proceedings, the real parties in interest are the people of the state of Colorado, and their rights should not be curtailed or jeopardized, nor should they be refused a hearing because individuals (although their officials) have been guilty of a wrong,” it waived that wrong, so far as it might be supposed to affect the rights of the people. I think it did right in waiving it; I therefore think it did wrong in after-wards resurrecting it as the basis of a judgment in favor of the companies.
Counsel for the companies were very persistent in their plea before the court insisting that the dignity of the court should be maintained, and that respect for its process should be compelled, and that this *258court owed it to itself to see to it that its orders, were not trifled with, and that there was no other way to enforce obedience to its mandates; and yet, directly after the judgment of this court was pronounced, as we are informed by the briefs of counsel, the state board of assessors were served with process from the United States court, again enjoining ing the board from making these assessments,—which leads one to believe that their solicitude to maintain the diguity of the court, to protect its process, to vindicate its authority, was simply for the purpose of clearing the way for federal interference.
' By this judgment the court has inflicted upon the people of the state, over the head of the state board of assessors, harsh and unusual punishment, simply because the state board of assessors, in violation of an implied obligation to await our decision with folded hands, obeyed the plain mandate of the statute; and has assumed a superiority which no court can possess, because it is strikingly apparent that if the district court may not by injunction interfere with the executive branch- of the government, under the constitution, this court cannot do so for the mere purpose of thwarting a supposed abuse of its process,
An examination of the cases cited by Mr. Justice Gabbert as sustaining this judgment, will show that in each case the party who was restored to a statics had a legal right to the status, upon the proposition that one in the peaceable possession of real estate to which he claims title is entitled to remain in possession until litigation concerning the title is concluded, and this without regard to the real merits of the litigation. And where such possession is interrupted under the cover and protection of a writ of injunction against the opposite party, the court may, and should, *259direct such possession to be restored. Those cases are not authority for this judgment, for the reason that those cases give the party something that he was legally entitled to, while this judgment gives the companies something they were not legally entitled to, namely, freedom from assessment after the time the statute required the assessment to be made. The railroads having no right to prevent the assessment, no advantage was taken of them by the making of it; and they were entitled to no relief, legal or equitable.
No authority was cited by counsel supporting their right to this judgment, no principle was announced which, in my opinion, was applicable to this case; and yet the court has rendered a judgment which brings confusion to the affairs of state, basing it, as it seems to me, upon no applicable principle, nor the authority of any adjudicated case. I do not insist that appellate courts should be controlled by the judgments and opinions of other courts, nor that they should surrender their own well considered opinions to the opinions of other persons; but I do insist that where the effect of the judgment is to cause the community to suffer great loss, and where it disturbs and disorders governmental affairs, that the court should not render such judgment except it be based upon the authority of some adjudicated case or founded upon some well-recognized rule or principle of law.