(dissenting): I am of the opinion that there are no instrumentalities used in the commission of crime among the documents retained, and that all should be returned.

This memorandum opinion of the court was delivered by _

This is an original proceeding in mandamus filed four days ago, in which the plaintiffs pray for a peremptory order directing the attorney-general to return forthwith to defendants certain letters, papers, telegrams, books, records and documents, belonging to the Poehler Mercantile Company, which the attorney-general took into his possession some two years ago, at a time when such property was produced for his examination in obedience to his subpoena, in an investigation being conducted by him touching certain violations of the antitrust law. All this property still remains in the attorney-general’s hands and he has declined to return it. A criminal prosecution under the antitrust law is pending in the Douglas county district court against the two individual plaintiffs, set for trial to-morrow, and plaintiffs allege that the documents, books, papers, etc., are being unlawfully retained by the attorney-general for use as evidence in that criminal case. They further allege,that they cannot prepare their defense until the attorney-, general is compelled to surrender this property- so that they may inspect the same and prepare their defense to any evidential matters contained therein to their prejudice.

This purpose to so use this property is virtually admitted by the attorney-general; but he contends that the matter is not controlled, or at least not fully controlled, by the decision of this court in The State v. Smithmeyer, 110 Kan. 172, 202 Pac. 638, because here at least some of the letters, documents, etc., which he retains are not merely evidence of the crime, but actually instrumentalities by which the unlawful combination in restraint of trade was effected, and that such parts of the documents, etc., which he retains have lost their character as property. The urgency of an immediate decision will not permit us to go into this subject in detail, nor to discuss the pertinent law at length, nor can this court, in mandamus, undertake to segregate what part of the plaintiff’s property should *331of right be returned, and what part, if any, may be merely instrumentalities of the alleged crime as to which plaintiffs can claim no property interest, nor should we in this summary proceeding consider the admissibility of any of the retained property as evidence in the criminal case.

But under the rule announced in The State v. Smithmeyer, supra, the attorney-general had no right to retain any property produced for his inspection under his inquisitorial subpcena, and so the order must be that he return forthwith to the plaintiff, the Theo. Poehler Mercantile Company, all its property in his hands, except such particular documents, etc., as he claims to be actual instrumentalities used in the commission of the crime or crimes for which the individual plaintiffs stand charged, and as to those retained by the attorney-general he is ordered forthwith to furnish to the plaintiffs copies of such alleged instrumentalities so that plaintiffs may be advised thereof and prepare' their defense accordingly.

The plaintiffs also ask for an ancillary writ of prohibition directed to the district court,'attorney-general, and county attorney, to enjoin them from proceeding with the criminal trial, and to direct that such trial be continued until the property involved herein is .returned to plaintiffs, and until they have an opportunity to examine the same and prepare their defense thereto. While the circumstances are unusual, the court does not deem the situation so singular and rare as to justify the use of so high and extraordinary a remedy as the writ of prohibition, and it is therefore denied. But the writ of mandamus for the immediate return of all the property to the plaintiff corporation is allowed, except as to that portion of it which may as actual instrumentalities of crime have lost its character as property, and as to all such instrumentalities retained by the attorney-general he is ordered forthwith, before proceeding to the trial in the criminal case in Douglas county against the individual plaintiffs, to furnish plaintiffs with copies of all documents, etc., so retained by him as such alleged instrumentalities.

(dissenting), is of the opinion that the writ of mandamus should be allowed withoilt condition or exception.