(dissenting), said :
The judgment awarding a mandamus in this ease is, in my opinion, so extraordinary and unprecedented, that I deem it proper to state the reasons that constrain me to dissent from it. The history of the controversy, briefly stated, is as follows :
In July, 1890, John M. Bailey and others filed their bill in the Circuit Court of the United States for the Western District of *284Virginia, against- tlie Virginia, Tennessee & Carolina Steel & Iron Company, the South Atlantic & Ohio Railroad Company, the Bailey Construction Company, and the Bristol Land Company, praying an injunction and the appointment of a receiver. The Honorable John Paul, one of the judges of the said court, refused, upon the presentation of the bill to him, to grant the prayer of the bill, without- notice to the defendants. Notice ivas thereupon given, but before any further action was taken, the bill was dismissed by the complainants. On the same day, to-wit, on the 6th of August, 1890, the same complainants and one or two others presented a substantially similar bill against the same defendants to the Honorable I). W. Bolen, judge of the fifteenth judicial circuit of Virginia. The latter at the time was bolding a court in Russell county, in the sixteenth circuit, for the respondent, the Honorable John A. Kelley, to whom the bill was addressed as the judge of the circuit court of "Washington county.
Upon the presentation of the bill, Judge Bolen, without notice to the defendants, granted an injunction, and appointed the said Bailey, one of the complainants, and a non-resident of the state, receiver of all the property of the defendant corporations, aggregating several millions of dollars in value, and required an injunction bond in the penalty of $500, and a receiver’s bond in the penalty of $10,000. The order, however, was expressly made subject to “the further order of the court or the judge thereof in vacation.”
As can readily be imagined, the proper officers of the defendant corporations, upon learning that such an order had been made, lost no time in applying to the judge of the court to vacate it. And an order was promptly made by Judge Kelley suspending its operation for twenty days, in order to afford the defendants an opportunity to give notice of a motion to dissolve the injunction. The suspension, hoivever, was only partial, as in several important particulars the order was not affected, but iras left in full force, by the suspending *285order. Xotice was accordingly given, but before the day fixed for the hearing’ of the motion, the case was removed by the defendants to the Circuit Court of the United States.
In this posture of the case, the complainants, on the 16th day of August, 1890, presented what- they termed a “ supplemental bill” to Judge Kelley, almost identical in its terms with that upon which Judge .Bolen had acted, and containing the same prayer. Upon this hill the judge inadvertently indorsed the words, “ Injunction refused,” whereupon, on the same day, without notice to the defendants, it was presented to one of the judges of this court, who awarded an injunction and appointed a receiver, as prayed for. The order was directed to the clerk of the circuit court of Washington county, and, in pursuance of its mandate, the sheriff of the county put the receiver into possession of all the defendants’ property in that county, as appears by the return on the process issued by the clerk of the circuit, court, which is made a part of the record before us. It. seems, however, that on the same day, or soon afterwards, possession of the property was restored to the defendants, by the United States marshal, in obedience to an order of the Federal court.
Some months afterwards the case ivas remanded from the last-mentioned court to the state court, soon after which the complainants applied by petition to Judge Kelley to enforce the order made by the judge of this court. They averred in their petition that after the case had been remanded, the officers of the defendant corporations forcibly resisted the sheriff in his attempt to again put the receiver into possession, and had thus put themselves in contempt.
About the same time, the defendants gave notice that on the 11th of June, 1891, they would move Judge Kelley to dissolve as well the injunction awarded by the judge of this court as that previously awarded by Judge Bolen. This motion was opposed by the complainants, on the ground that the duty of Judge Kelley to enforce “ the order of Judge Richardson ” *286was purely ministerial; that it was therefore his duty to enforce it at once, and that he had no discretion in the matter. This view, however, was not sustained by Judge Kelley, who decided that the order was void, and that the defendants were not in contempt; and he postponed the hearing of the motion to dissolve until the 25tli of July.
The complainants thereupon presented a petition to this court for a mandamus to compel Judge Kelley to enforce the orders made by Judges Richardson and Bolen, “ before allowing the defendants to invoke the jurisdiction of the circuit court of Washington county.” To this petition Judge Kelley filed an answer, and the case having been fully argued, the judgment of this court is to award the mandamus, requiring “ the order of Judge Wrhardson ” to be forthwith carried into execution.
But, in legal contemplation, is there any such order? Section 3438 of the Code provides that when a circuit or corporation court, or a judge thereof shall refuse to award an injunction, a judge of this court may award it. But did Judge Richardson have authority, under the circumstances of the present case, to make the order that he did ? I think not. When the order was made, the injunction awarded by Judge Bolen was still in force, or, at least, had not been dissolved, although its operation had been partially suspended for twenty days. Hence, there was no authority on the part of Judge Richardson to act, inasmuch as it is only when an injunction is refused by an inferior court or judge that a judge of this court may award it.
Judge Kelley’s endorsement on the supplemental bill (so called), as he says in his answer, was misleading. An injunction in the cause having been already awarded, which had not been dissolved, he had no power, as he expresses it, to award “ an injunction on an injunction.” “ Though called a bill for au injunction,” the answer avers, “ it was in effect a motion in disguise to dissolve the suspending order, with intent to take the chances, in the event of a refusal, of applying to another *287judge. So apparent, indeed was this,” the answer further states, that respondent promptly refused to consider it. Being in great affliction and seriously ill at the time, respondent yielded to pressure, and made the endorsement — ‘ injunction refused.’ This ivas hastily done, and in form it no doubt directed Judge Richardson’s mind from the fact that the bill was merely an indirect mode of getting rid of the suspending order. Respondent ought to have endorsed that he declined to act for want of notice to the adverse side, regarding it as a mere motion to dissolve the suspending order.”
And I fully concur in the further averment in the answer that in any view, a judge of this court had no power, under the circumstances, to act in the premises, and that the order made by Judge Richardson ivas, therefore, void.
But let it be supposed that it was valid. It was directed to the clerk of the circuit court of Washington county, by whom as the record shows, it was entered, and, in point of fact, as we have seen, it was enforced by the sheriff’s putting the receiver into possession, although that possession, Avithout any fault on the part of the sheriff', was of short duration. But, Avlien entered, aa'Iiosc order did it become ? This the statute ansAvers by providing that AA'hen in such a case an injunction is aAvarded, the proceedings thereupon shall be as if the order had been made by the court, or the judge thereof, to whose clerk the order is directed. Code, sec. 3439.
The order, then, made by Judge Richardson became in contemplation of the statute, as much the order of the circuit court of Washington county as if it had been signed by Judge Kelley, or entered by him in open court, and hence AAras no less subject to his control. What authority, then, is there for hoav calling it “ the order of Judge Richardson ” ? Rone, I think, AArhateArer. Upon its receipt by the clerk of the circuit court, it Avas as much an interlocutory decree of that court as the previous order made by Judge Bolen. And Avhoever heard of a chancellor sitting to hear a motion to enforce one of his oavu *288interlocutory decrees, or to dissolve an injunction, who ivas not acting judicially ? There is nothing ministerial about, it. It is purely a judicial function, i. t\, a duty calling for the exercise of judicial discretion, and nothing else. The proposition, to my mind, is so plain that nothing can make it plainer than the mere statement of it. To argue it, it seems to me, is like arguing that two and two make four.
The idea that in making the order Judge JRichardson was exercising an appellate power is, I think, a mistaken view. "When a judge of this court awards an injunction, he exercises a special original jurisdiction with which he is clothed by the statute. At all events, his act, when completed, is as if the order had been made by an inferior judge of court; nothing more. The statute upon this point seems to me too plain to be misunderstood.
And here it is pertinent to inquire: If a circuit court or judge, to whose clerk an order awarding an injunction by a judge of this court is directed, has no discretion respecting it, but must literally enforce it, as a ministerial duty, how is such an order to be dissolved or gotten rid of at all ? Are the parties aggrieved by it remediless until a final or other appealable decree has been entered ? Could that have been the intention of the legislature ? And yet such is the case if the theory of the majority of the court be correct. Meanwhile, to whose orders is the receiver appointed by such an order subject? And can he be removed for misconduct or other cause ? These are important questions which will no doubt arise in the future, and as to which we can now only conjecture.
As to the question of the alleged contempt, little need be said. First, because it is clear, I think, there has been no contempt; and, secondly, because if there had been, that could not affect the application for a mandamus. The alleged contempt consists in the refusal of the defendant’s agents to surrender possession of the property to the sheriff, to be by him again turned over to the receiver, after the case was *289remanded from the Federal court. And the contention is that the defendants are .not entitled to he heard, either to move for a dissolution of the injunction, or for any other relief, in the circuit court, until they shall have purged themselves of their contempt.
But what authority had the sheriff to act in the matter ? He had executed the process that promptly issued on the order made by the judge of this court, after its entry.in the circuit court, and his authority without a further order from the last-mentioned court, was at an end. The possession which, under that process, he delivered to the receiver, had been restored to the defendants by an order of the Federal court, and when the case was remanded to the state, court, the sheriff, as the case then stood, had no more authority to act than any private individual. But suppose he had, and that the defendants were in contempt. Is the circuit court, in the exercise of its judgment in dealing with that question, to be controlled by mandamus ? This could hardly, have been seriously contended for, although much was said about it in the argument at the bar.
To enter into a discussion of the nature and office of the writ of mandamus is wholly unnecessary. There is nothing more familiar to the profession. The writ is never available when there is another adequate remedy, and hence, will not lie in any case where the alleged 'error may he corrected on a writ of error or appeal. Heither does it lie to control the exercise of judgment or discretion. The only acts that can be rightfully controlled by it are such as are purely ministerial. As was said in Wise v. Bigger, 79 Va. 269, while the writ lies to compel the performance of a purely ministerial duty, so dear and specific, that no element of discretion enters into it, yet as to all acts or duties calling for the exercise of judgment or discretion on the part of the officer or body sought to be coerced, it will not lie.
The application of this test to the present case shows, I think, beyond all doubt that the writ ought not to be awarded. If *290it ought, then I see no reason why the execution of any interlocutory decree hr a chancery cause in this state may not he compelled by mandamus. The opinion of the majority of the court is, I think, not only without a precedent, but without any correct foundation whatever. If Judge Kelley has erred, it has been in the exorcise of his judicial discretion, and the law has provided an ample remedy by which, at the proper time, those errors may be corrected, which remedy is by appeal.
I deem it not improper, however, to add, that if the whole case were now before us on appeal, there is nothing in the action of Judge Kelley which, in my judgment, is open to criticism. It is apparent that in his course he has been actuated throughout by a desire to exercise his judgment rightly. The record, I think, abounds with reasons which justified him in stopping to look carefully into the case, after hearing counsel, before proceeding to further carry out the interlocutory order granting an injunction and appointing a receiver — an order'made without notice to the defendants, and requiring property worth millions of dollars to be turned over to one of the plaintiffs in the cause, as receiver, upon his executing a bond, the inadequacy of which as a security is simply amazing. I refer now to the order of Judge Bolen, for I consider, as Judge Kelley did, that the order made by the judge of this court is out of the case. But if it were not, the result would be the same. '
In their petition addressed to Judge Kelley, praying him to dissolve the injunctions awarded by’ Judges Bolen and Richardson, and to hear all the matters together which had been brought to his attention, the defendants, among other things, aver:
“ Your petitioners [defendants] do not owe the complainants anything. Their claims are false and fabricated. Your petitioners charge that complainants entered into a conspiracy to wreck and loot the defendant corporations, and that pursuant *291to the conspiracy, their claims were trumped up for the purpose. And that they imposed upon, and induced Judges Bolen and Richardson to grant the orders before-mentioned.
“ Your petitioners further charge that the object of the conspirators is to get possession of the properties of the said corporations and as much money belonging thereto as possible; 'to pay themselves large salaries for services performed for the railroad, and thus loot and consume all of the substance of the companies before they can be gotten rid of by due course of law.
“ Your petitioners further charge that the said conspirators intend, if they can get possession of the properties of the defendant companies, to pay out of the money belonging to them large sums which they have contracted to pay in their efforts to enforce their fraudulent and fictitious claims. And your petitioners further charge that, unless restrained, these conspirators, who are insolvent, will, if they get possession of the funds of the defendant companies, thus squander and waste the same, and when the properties are restored to the companies they will be found to have been despoiled and damaged irreparably.”
There is much more to the same effect, all of which is verified by affidavits. But I need not refer to it;for surely enough has been said, it seems to me, to vindicate the propriety of Judge Kelley’s action in deciding to pause and to hear counsel on all the questions brought before him, before taking final action in the matter.
But he that as it may, he was acting judicially, and that ought to end the case, so far as this proceeding is concerned.
And now, having said this much, I will only add that I can but regret the action of this court.
If this is a proper case for a mandamus, it will be difficult to determine hereafter what functions, of the judiciary in Virginia are judicial and what are ministerial, and thus confusion will inevitably result. At all events, with my views of the *292case, I feel constrained to enter my dissent from the opinion of the court and the order to be entered.
Fauntleroy, J., concurred in the opinion of Lewis, P.
Mandamus issued.