DISSENTING OPINION.
WOODSON, J.I dissent from tbe first paragraph of this opinion, for the reason that there- is no equity in tbe bill. Tbe opinion itself concedes this fact; but notwithstanding that fact, this court entertains tbe appeal and adjudicates the cause upon its merits as though a court of equity bad jurisdiction of tbe same.
Tbe only excuse offered for this anomalous proceeding is found in tbe bare statement of tbe opinion that it is not to be taken as a precedent.
Notwithstanding that statement, it is a precedent, or rather it will- become so just as soon as tbe opinion is banded down; and must be followed when a like casé is presented, or it must be overruled.' If overruled, which the opinion intimates will be done when another case of like character is presented, then this court will justly be charged with partiality and discrimination. If, upon tbe other band, the opinion should be *357followed, then it violates all equitable procedure, and also violates that provision of the Constitution which guarantees the right of trial by jury simply by a court of equity assuming jurisdiction of an action at law. The latter is triable before a jury, while the former is triable before the court; but this opinion with one stroke of the pen strikes out the right to a trial by jury. While it is true that point was not raised by counsel, however it is in the case, and the court has raised the point itself only to brush it aside as so much chaff, and if adhered to must deny that valuable right to the next comer.
This opinion, like many others found in the books, shows the greatest danger which threatens the perpetuity of all forms of government, namely: the seeming necessity for the lodgment of absolute and final power in some individual officer or officers, who assume and exercise powers not delegated to them by the law, and yet there is no remedy because of said final and absolute power.
That excessive exercise of power is the rock upon which the ship of state of all nations has been or will be wrecked, and it will just as surely wreck those of the present and future nations as it has wrecked those of the past. The only salvation there is, if any, from wreck and ruin, rests with a wise pilot who will steer the ship clear of the breakers by wisely exercising only the powers entrusted to him within the true spirit and meaning of his grant of power.
A court has no more legal or moral right to exercise power in excess of its true jurisdiction simply because of its unrestrained physical power than an individual has to violate the laws of the land simply because he has the physical power to so do. The difference being, the latter’s conduct is subject to review, while the former’s is not. In-the long run, however, the disastrous results of the former will be more detri*358mental to society than that of the latter. The one wrecks governments, while the other ruins individuals.
This case within itself may be of little importance, but when considered in connection with the jurisprudence of a great State it may at some future time cut an important figure. As was said by Napoleon in speaking of the Russian "War, “No events are trifling with regard to nations and sovereigns, for their destinies are controlled by the most inconsiderable circumstances.” He then went on to state what trivial things brought about the war, which ultimately involved all Europe, and finally resulted, if I remember correctly, in his downfall at Waterloo.
It is just such opinions as this that upset and keep the law in an unsettled condition, and render its administration difficult and uncertain, and lay the foundation for further usurpation.
I express no opinion as to the other paragraphs