DISSENTING OPINION.
VALLIANT, J.— Being unable to concur in the opinion of the majority of the court in these cases, and regarding the principle involved as one of much importance, I feel constrained to state, as briefly as I can, the reasons for my dissent.
I do not question that a railroad company may, under a valid contract, issue a ticket limited to be used *198only by the purchaser, or that it may lawfully refuse to honor such ticket for the transportation of anyone except the original purchaser. And possibly a case might arise under such circumstances as would justify a court of equity in interfering to prevent the transfer or sale of such a ticket. No such case occurs to me now.
No one doubts that the circuit court, as a court of equity, has jurisdiction to issue injunctions, .and no one doubts that to prevent irreparable injury or a multitude of suits, is ground for equitable relief. I am also ready to concede that if the railroad company were required to wait until a case should actually arise, before calling on the court for an injunction, the remedy would not be so convenient, far-reaching, dr so absolutely destructive of the business of the ticket broker as it is in the form given. But conceding all those propositions, I hold that no court has jurisdiction to render a judgment or decree that in effect is but the enactment of a law or to lay down a rule of conduct, to take effect on a cause of action not yet arisen, or to render a judgment in advance, to be applied when the cause of action arises.
The cases made in the petitions on which the railroad companies obtained these injunctions are, in effect, that the railroad companies, in consideration of the World’s Pair and other important public events that may occur in the future in St. Louis, are contemplating issuing round-trip tickets for the transportation of persons from any given point in the United States to St. Louis and return, the tickets to be non-transferable and good going and returning only for the passage of the persons to whom they are respectively issued; that each ticket is to recite on its face that it is sold at a reduced rate and in consideration thereof the purchaser agrees not to transfer it, but that the defendants are engaged in the business of buying and selling secondhand railroad tickets and that, in spite of the recitals on the'face of the tickets, these ticket brokers are liable to buy them and sell them to persons other than the original purchasers *199who will use them in payment of their railroad fares, to the irreparable injury of the railroad companies; that if the railroad companies wait until the tickets are issued and the brokers buy them and sell them, it will be too late to obtain equitable relief because in the very nature of the transaction the deed would be done before the process of the court could be obtained.
On the filing of those petitions and on a joint preliminary hearing the court issued injunctions enjoining the defendant until the further order of the court, from buying or selling tickets that the railroad companies might thereafter issue of the character specified. At the preliminary hearing the defendants urged the proposition that there was no concrete case stated on the face of the petition. — nothing to bring the judicial power of the court into action, nothing to give the court jurisdiction. But the court ruled to the contrary.
When a petition is filed in the circuit court which the defendant thinks does not state a case that gives the court jurisdiction, he has no right in the first instance to a writ of prohibition to prevent that court taking cognizance of it, because that court has the first right to decide whether or not the petition states a case within its jurisdiction, and the presumption is that if the court has no jurisdiction of the case stated, it will so decide. And even if the court should erroneously decide that it has jurisdiction, the writ of prohibition, will not ordinarily issue, if the rights of the parties can be adequately protected by appeal. But when the court at the very outset not only erroneously decides that the petition is sufficient to give jurisdiction, but renders an interlocutory decree of such effect that it is destructive of the defendant’s rights beyond redress by appeal, then the writ of prohibition ought to go. That is just what the court in these cases has done. The temporary injunctions are as effective for the destruction of the rights of the defendants as would be perpetual injunctions on final decree, because, in the very nature *200of the proceedings, the canses would not reach the appellate court until after the public occasions mentioned in the petitions had passed. The defendants have nothing to hope for in the final hearing because there are. no facts in issue to which evidence could be addressed to change the mind of the chancellor. "When the cases come on for final hearing, what issue is there to try? Will the court hear evidence to prove that at the time of filing the suits the railroad companies really intended to issue the kind of tickets specified and that they had cause to apprehend, if they should conclude to issue them, that the ticket brokers would buy and sell them? There are no issues of fact, there is nothing in the cases to try on final hearing. It is said that these injunctions can injure no one, because they are not to take effect until a concrete case arises — until one of the defendants does an act forbidden-then the injunctions cease to- be mere abstract fulminations and become concrete judgments. That is so, but the vice of it is that it is a prejudgment of the case before it has arisen.. Suppose next year a railroad company issues a ticket in the form suggested, and a broker buys and sells it and he is arraigned before the court on a charge of contempt; he comes into court and says, “I am advised that I had a legal right to buy and sell that particular ticket and I ask for a trial on that issue,” but the court will look at the ticket and see printed on its face that it was sold at a reduced rate and is non-transferable, and will say to the defendant: “There is nothing to try, that was settled by a judgment rendered a year ago; the only question before the court now is as to the character and, degree of punishment to be inflicted.” Then if the defendant should say, “But this ticket was not issued until a year after that judgment was rendered,” the answer would be, “This judgment is prospective in its character, affecting not only what has been but what may be; it establishes a rule of conduct for all time, and confers the character of res adjudicata upon every transaction involving the buying *201and selling of a 'round-trip railroad ticket upon which the railroad company may have taken the care to have printed on its face that it was sold at a reduced rate and is non-transferable. ”
Suppose a railroad company should issue a ticket of the kind in question, and then, in order to ascertain if anyone is violating the injunction, should send a detective to a broker to sell him the ticket and send another to buy it and the broker so induced buys'and sells, could he not when arraigned in court on a charge of contempt well say, “I bought that particular ticket from an agent of the railroad company, especially authorized to sell it to me, and I sold it to one in like manner authorized to buy it?” .Doubtless if he should be allowed to get that far in his defense, the court would not inflict the penalty for contempt upon him, hut giving to the decree its natural effect, the act .suggested would be res adjudicata as well as to that transaction and to any other defense he might desire to make.
It is no answer to this position to say that the court could be relied on to use its discretion to allow the defendant when arraigned to be heard concerning any particular defense he might have. If the court should hear him at all, it would only be ex gratia; if the judgment is right, he has no' legal right to be heard, because it has already been prejudged that his handling -of the ticket was unlawful; the only questions the judgment leaves open are, did the ticket hear those marks, and did the broker buy and sell it? If so, he is guilty.
"When a man buys and sells a ticket that was not in existence when the injunction was issued, and he is arraigned in court to he punished by fine and imprisonment for doing so, to say to him that he will not be heard on the proposition that he had a right to do what he did, and to inflict the penalty upon him without giving him such hearing, is to take his money and deprive him of his liberty without due process of law, in violation of both our State and our Federal Constitutions. That is *202just what is liable to be done in these cases if the injunctions are taken to mean what they say and are enforced accordingly. It was said in the oral argument by eminent counsel for one of the railroad companies, that the business of these ticket brokers was dishonest, that they were as bad as men who keep “fence houses” where stolen goods are knowingly bought and sold. It is strange, if that is so, that the business has not been, forbidden by an act of our General Assembly, or by the Legislatures of many States in the Union.
In the only case to which our attention has been called in which the character of the business received judicial mention, it was said by Chief Justice Parker of the New York Court of Appeals: “It is not contended that the business of ticket brokers is in itself of a fraudulent character. The business can be honestly conducted; it has been so conducted in the past by honest men engaged in it; and the most that is asserted is that there are some men engaged in the business who have imposed on the public. The same assertion can be made, with equal truth, of every business, trade and profession.’ The business of selling passage tickets continues, therefore, to be regarded as a lawful and legitimate business.”
The lawmaking power of - this State has not declared this business unlawful' and the judiciary has no authority to do so, yet the effect of these injunctions is to drive these men out of business, and that is the purpose avowed in the arguments of the learned counsel for the railroad companies. It is for the Legislature to declare the public policy of our law, and for the courts to apply, the law to particular acts after they are committed, or aets threatening somes property right when in existence.’ It is true these injunctions prohibited the buying and selling of only such tickets as carry on their face certain recitals, but there is nothing to prevent the railroad companies printing those recitals on the face of all tickets, and having all of them signed by a purported purchaser, *203and whether the recitals are true or the signature bona fide, are questions on which the broker, according to the terms of these injunctions, when arraigned on a charge of contempt, will have no right to be heard. Any fact so appearing on the face of the ticket is, as to him, res adjudicata. The railroad company is clothed with the power of stating the necessary facts on the face of the ticket, and any fact when so stated becomes, by relation to the judgment, res adjudicata, and is past disputing.
As between the plaintiffs and the defendants in those suits, if the court had jurisdiction to decree as it has decreed, the decree settles the right of the parties touching the subject adjudged, and the plaintiffs can not, by any subsequent legislation, be deprived of their vested rights in the matters covered by that decree. If the plaintiffs are, entitled to what those decrees essay to adjudge to them, then as to the defendants in those suits, no power in the land can deprive them of it. Those decrees cover tickets to be hereafter issued as well as tickets already issued and are aimed chiefly at tickets hereafter to be issued. No one will doubt but that the General Assembly has the power to enact that all railroad tickets issued in this State shall be transferable or assignable, yet if the court had jurisdiction to enter the decrees that it did enter in these cases (and so far as the question of jurisdiction is concerned there is no difference between an interlocutory decree and a final decree; jurisdiction to grant a temporary injunction is jurisdiction to make it perpetual), then if the General Assembly should to-morrow enact a law to the effect that all railroad tickets hereafter issued in this State should be transferable, the act would be invalid in its application to the acts of the parties to those suits relating to tickets covered by those decrees, because if the decrees are valid they confer on those plaintiffs as against those defendants vested rights, and subsequent legislation cannot destroy vested rights. But I apprehend that if any *204such condition should arise it would he held that the fault was with the court which had gone beyond its jurisdiction and attempted to reach into the future to adjudicate upon cases before they had arisen. Suppose our General Assembly should conclude that the business of railroad ticket brokers was detrimental to the well-being of the State and pass an act saying that any one who should hereafter buy or sell a railroad ticket that recited on its face that it had been issued by the company at a reduced rate and for that reason was nontransferable, should be deemed guilty of a misdemeanor and upon conviction be punished by fine and imprisonment, would any one say that the. General Assembly in passing that act was usurping the powers of government entrusted to the judiciary? Whatever else might be said, in questioning the validity of the act, no one would say that it was not legislative in its character, no one would claim for it that it was a judicial act. Yet that is exactly the kind of act effected by these injunctions. Our attention has been called to a bill now pending in the Municipal Assembly which in its essence copies the very.words of these injunctions and proposes to enact them into a law. Are these railroad companies appealing to the "World’s Fair sentiment in the Municipal Assembly to induce its members to usurp judicial powers, or has the circuit court assumed legislative functions? The act in its nature is either legislative or judicial, it belongs either to the one department of the government or to the other; it can not be exercised by both. In the language of the Supreme Court of Vermont, “No power can properly be a legislative and properly be a judicial power at the same time; and as to mixed powers, the separation of the departments in the manner prescribed by the Constitution precludes the possibility of their existence.” [Bates v. Kimball, 2 Chip. l. c. 87.]
No court of last resort has ever before laid down the doctrine that this court now announces in the majority opinion. We have no precedent for it. This I *205feel safe in saying, because although, we are aided by an unusually strong array of eminent counsel representing nearly all the great railroad interests centering in St. Louis, yet they have referred us to no appellate court that has given its sanction to such a use of judicial power. The very fact that the only legislative body in the State now in.session and at all available to the purpose, is resorted to to obtain the same object these injunctions purport to accomplish, evinces a lack of confidence in the position taken by the railroad companies in these cases.
In the brief of the learned counsel for the ticket brokers, is a collection of authorities sustaining every proposition they make and demonstrating that the interlocutory decrees granting these injunctions are legislative and not judicial in their character. I am strongly tempted to quote from some of these authorities, but I have already occupied as much space as ought to be taken in a dissenting opinion.
Por the reasons outlined in the foregoing pages I respectfully dissent from the majority opinion. In my judgment, the writs of prohibition ought to issue.
Gantt, J., agrees with me in this opinion.