therein, all depend upon that fact. All this may be freely admitted, but, aside from the fact that none of them are grounds of equitable jurisdiction, it is, perhaps, one of the greatest objections to this action, as it seems to us, that it settles none of these questions. We know of no principle upon which it can be claimed that the decree entered in this action determines the situation of the boundary as against any one not a party. It would not even be admissible for or against either party to a criminal proceeding, to an action to recover delinquent taxes, or in an election contest; nor would it prevent the assessor of Lander county from assessing property therein. The law fixes the boundary. All that a court could possibly do would be to determine the fact of where it is so fixed, and as upon this would often depend very important rights of others, of which they could not be deprived without their day in court, judgment upon the point can conclude no one not a party to the action. It is unnecessary to determine how far, if at all, manors and parishes in England are public corporations, so as to make the decisions there concerning their lost or confused boundaries in point in this action; but they are, at least, somewhat analogous, and as will be seen from the citation from Speer v. Crawter, supra, it is in such cases that the exercise of jurisdiction by a court of equity is pronounced particularly pernicious.

After a careful consideration of the points presented on this appeal, we are satisfied that the court erred in overruling the defendant's demurrer. It is therefore ordered that the judgment of the district court be reversed, and the demurrer to the complaint sustained.

BIGELOW and BELKNAP, JJ., concur.

(7 N. M. 486)

LINCOLN-LUCKY & LEE MIN. CO. v. DISTRICT COURT, SITTING IN THE FIRST JUDICIAL DISTRICT OF NEW MEXICO.

CUNNINGHAM v. COMMISSIONERS OF SANTA FE COUNTY. (Supreme Court of New Mexico. Sept. 3, 1894.)

PROHIBITION, WRIT OF POWER OF TERRITORIAL COURTS-PLEADING TO JURISDICTION-TERRITORIAL LEGISLATION-CHANGE OF VENUE.

1. Rev. St. U. S. § 1912, stating that the supreme and district courts of the territories may grant writs of habeas corpus, does not, by implication, limit the original jurisdiction of a territorial supreme court to such writ.

2. Even if Rev. St. U. S. § 1912, limits the original jurisdiction of a territorial supreme court to the writ of habeas corpus, Comp. Laws 1884, § 2006, authorizing the supreme court of New Mexico to issue writs of prohibition, is not in conflict with it, the issuance of the writ of prohibition being the exercise of an appellate or relative, rather than an original or abstract, power.

3. Comp. Laws 1884, § 2006, providing that a judge of the supreme court may, in vacation, grant a preliminary writ of prohibition,

is not in conflict with the act of congress declaring three of the judges of such supreme court a quorum.

4. It is not necessary to plead to the jurisdiction of an inferior court as a foundation for the writ of prohibition where the court had not jurisdiction of the original subject-matter. Freeman, J., dissenting.

5. The writ of prohibition goes from the supreme court of a territory to a district court thereof, the latter, though not technically an "inferior" court, being relatively inferior to the former.

6. Though the district courts of New Mexico are held by one of the judges of the supreme court, the writ of prohibition may be issued to a judge so sitting as a district judge by a single judge of the supreme court in vacation. Freeman, J., dissenting.

7. Rev. St. U. S. § 1907, provides that the judicial power in New Mexico shall be vested in

a supreme court, district courts, probate courts, and in justices of the peace. Section 1866 provides that the jurisdiction of such courts shall be limited by law. Section 1865, that a district court shall be held by a judge of the supreme court of the territory in each of the judicial districts into which it directs that the territories shall be divided. Section 1910 provides that each of the district courts shall have the same jurisdiction as district and circuit courts of the United States in cases arising under the constitution and laws of the United States. Section 1874, thereafter enacted, authorizes the judges of the supreme court of each territory to hold courts within their respective districts, in the counties wherein courts may be established by the territory for hearing and determining all matters and causes except those in which the United States is a party. Held, that the jurisdiction of territorial causes was, by section 1874, taken away from the "judicial district court," and conferred on the "district court for the counties," subject to the establishment of the latter by the territory; so that, the latter having been established, an act of the territory (Acts 1889, c. 77), providing for change of venue of territori al causes from the "district court for the counties" to the "judicial district court," was void, as attempting to revest the latter court with jurisdiction in territorial causes, in contravention of section 1874; legislation by the territory being limited by section 1851 to such as is not inconsistent with the constitution and laws of the United States. Freeman, J., dissenting. 8. Acts 1889, c. 96, which provided a single jury for a "judicial district court" for the trial of federal cases, and for "district courts for the counties" within the judicial district for the trial of territorial causes, having been declared unconstitutional by reason of special legislation therein, and Act 1891 having provided juries for the former court drawn from the district, and for the latter drawn from the county alone, Acts 1889, c. 77, § 3, providing for change of venue from the latter court to the former, having been intended to go with Acts 1889, c. 96, fell with it. Freeman, J., dissenting.

9. A judgment of a court in a cause of which it has no jurisdiction being a nullity, a party should not be compelled to appeal, even if he can, but the writ of prohibition is properly issued to the court. Freeman, J., dis senting.

Application for writs of prohibition,-one by the Lincoln-Lucky & Lee Mining Company to the district court, sitting in the First judicial district of New Mexico, for the trial of causes arising under the laws of the United States; the other by William P. Cunningham to the county commissioners of Santa Fé county. Preliminary writs made absolute.

H. L. Warren and Francis Downs, for relators. T. B. Catron and E. L. Bartlett, as amici curiae.

FALL, J. These cases present for our consideration several important questions, common to both, as to the power of this court to issue the writ, while radically differing in respect to the issues involved upon the merits and as to the officers and courts to which the writs are directed. In 558, W. P. Cunningham, petitioner, relates that he is the duly appointed, qualified, and acting sheriff of Santa Fé county; that without warrant of law the board of county commissioners of said county are proceeding to oust him from said office, the said board possessing no jurisdiction in the premises, by reason of the repeal of the territorial statute under which they claim to be acting. The petition was presented to Associate Justice Needham C. Collier, and the writ issued, returnable to this regular term. In 561, the Lincoln-Lucky & Lee Mining Company applied for a writ from Associate Justice Albert B. Fall, to restrain the district court of the First judicial district, sitting for the trial of causes arising under the laws of the United States, from proceeding with the trial of a certain cause upon said docket, petitioners relating that said cause originated in the court sitting in Santa Fé county for the trial of causes arising under the laws of the territory of New Mexico, and upon application of each party thereto, having been changed from one county to another of said district, was finally by order of Associate Justice Edward P. Seeds, under section 3 of chapter 77 of the Acts of the Territorial Legislature of 1889, changed to said district court sitting for the trial of causes arising under the laws of the United States within said First district aforesaid. Said writ was issued as prayed for, returnable to this regular term. The writs were issued under section 2006 of the Compiled Laws of the Territory of 1884, which is as follows: "2006. Writs of prohibition shall only be issued out of the supreme court and shall be applied for upon affidavit, by motion to the court or a judge thereof in vacation, and if the cause shown appears to the court or judge to be sufficient a writ shall be thereupon issued, which shall command the court and party, or officer to whom it is directed, to desist and refrain from any other proceedings in the action or matter specified therein, until the next term of said supreme court, or the further order of the court thereon; and to show cause at the next term of said court, or some day to be named in the same term at the option of the court, if issued in term time, why they should not be absolutely restrained from any further proceedings in such action or matter." No return whatsoever was made to either of said writs, but due hearing was had here, as though the allegations in the respective petitions had been traversed by a regular return to the writ; T. B. Catron and Solicitor Gener

al Bartlett being granted leave, upon their application, to act as amici curiae for the purpose of presenting the respondents' side of the question; Messrs. H. L. Warren and Francis Downs appearing for relators. The objections submitted by the amici curiae are: (1) Has this court the power to issue the writ of prohibition? (2) If so, can the preliminary writ be issued by an associate justice in vacation? (3) Granting the power to issue the writ, would it go either to the district court or to the board of county commissioners? (4) Granting the power to issue, and that it would properly issue to the courts or officers in this instance, was the writ providently issued?

Upon the first of these propositions numerous authorities are quoted, and before answering the objection it will be necessary for us to consider the history of the writ both at the common and under statutory law, as well as, and together with, the organization of this court under acts of congress creating the same and fixing the power of the territorial legislature to legislate for the courts of this territory. "The injury which is that of an encroachment of jurisdiction, or calling one 'coram non judice' to answer in a court that has no legal cognizance of the cause, is also a grievance for which the common law has provided a remedy by the writ of prohibition." Bl. Comm. bk. 3, p. 112. Originally, or at least properly, this writ, being the king's prerogative, issued only out of the court of king's bench, the supreme court of common law, the legitimate successor of the "Aula Regis." This court possessed jurisdiction to keep all inferior jurisdictions within the bounds of their authority, to superintend all civil corporations, to command magistrates and others to do what their duty requires, to protect the liberty of the subject by speedy and summary interposition, and to take cognizance of both civil and criminal cases, as also to hear appeals from all determinations of the court of common pleas and of all inferior courts of record. Afterwards the writ issued out of the court of common pleas or common bench, the court of exchequer, and the chancery court,-the first inferior to the court of king's bench, and with jurisdiction in real actions and "all other pleas between man and man," both original and appellate; the second (the exchequer) inferior to both the king's bench and common bench, originally only possessing jurisdiction to adjust and review the king's revenue, "but now, by a fiction, with jurisdiction in all kinds of personal actions." See Id. p. 110 et seq. The writ also issued out of the courts of law in Chester, to the spiritual court there, although the king's bench or common bench could issue the writ to the same court; also from the court of great sessions in Wales to the spiritual court. See 8 Bac. Abr. p. 227 et seq.; 7 Com. Dig. p. 137 et seq.; 17 Vin. Abr. p. 547; 14 Petersd. Abr. p. 61. The writ "issues out of the superior courts of the common law to restrain inferior

courts, whether such courts be temporal, ecclesiastical, military or maritime. * ** * Prohibitions do not import that the ecclesiastical or other inferior courts are alia than the king's courts, but signify that the cause is drawn ad aliud examen than it ought to be." 14 Petersd. Abr. p. 61. "The king's superior courts of Westminster have a superintendency over all inferior courts, of what nature soever." 8 Bac. Abr. p. 227. "The superior courts of Westminster grant prohibitions to inferior courts where the latter assume jurisdiction belonging to another inferior tribunal." Id. p. 229; 14 Petersd. Abr. p. 65. Thus we see that these courts, i. e. the courts of Westminster, king's bench, common bench, and exchequer, had a superintendency over other courts of common law, as well as ecclesiastical, military, etc.; second, that these courts issued the writ both when they claimed jurisdiction of the question themselves, and also when the court to which it was issued had no jurisdiction, while another inferior court possessed it.

Great conflict of opinion has arisen as to whether the power to issue the writ of prohibition, when the same was possessed beyond question, arose from the original jurisdiction of the court or from its superintending, appellate, controlling power; but, so far as we of this court are concerned, the question has been settled beyond cavil. "To control in this manner the proceedings of these tribunals [courts appointed under the authority of the United States] is but the exercise of appellate power." Conk. Pr. p. 48. "The judicial power is abstract or relative. In the latter it superintends

and controls the conduct of other tribunals by a prohibitory or mandatory interposition." U. S. v. Peters, 3 Dall. 123. The constitution in absolute terms limits the original jurisdiction of the United States supreme court-First, to cases affecting ambassadors or other public ministers and consuls; and, second, to causes in which a state shall be a party; but it also declares that it shall have "appellate jurisdiction both as to law and fact." Section 688 of the judiciary act gives to the supreme court power to issue writs of prohibition to the district courts of the United States in maritime and admiralty cases. This, were it an attempt to confer an abstract power, might be in conflict with the constitution, but, as conferring a relative power to a superintending, controlling, appellate court, is constitutional. Section 1907, Rev. St. U. S., provides that: "The judicial power in New Mexico * * shall be vested in a supreme court, district courts, probate courts and in justices of the peace." Section 1869 provides that: "Writs of error, bills of exceptions and appeals shall be allowed, in all cases, from the final decisions of the district courts to the supreme courts of all the territories respectively." Section 1866 provides that: "The jurisdiction, both appellate and

original, of the courts provided for in section 1907 * * shall be limited by law." Section 1851: "The legislative power of every territory shall extend to all rightful subjects of legislation not inconsistent with the constitution and laws of the United States," etc. Section 1912: "The supreme and district courts of each territory, and the respective judges thereof except for Idaho and Montana, may grant writ of habeas corpus in all cases in which the same are grantable by the judges of the United States in the District of Columbia." Section 1868: "The supreme court and the district courts respectively of every territory shall possess chancery as well as common law jurisdiction." The acts of congress stand to us as a constitution. Our legislature can no more infringe upon a congressional enactment applicable to this territory than could the congress of the United States enact a valid law in conflict with the constitution. We have, however, here a system of courts provided for, with power delegated to the territorial legislature, as has been decided again and again, to put these courts in motion, and to prescribe rules of practice and decision, etc., not in conflict with the organic act or acts of congress. We have a supreme court with controlling appellate, superintending power, and with both common-law and chancery jurisdiction conferred by a grant as solemn as would be the article of a state constitution. But it is claimed that the permission given in section 1912 to this court to grant writs of habeas corpus is a restrictive grant of original jurisdiction, and must be construed to prohibit the exercise of original jurisdiction in any other cause or proceeding. Territory v. Ortiz, 1 N. M. 12, would seem to sustain this contention, but would it not appear that the intention of congress was rather to prevent any territorial legislation which might deprive this court of the power to issue the writ than to limit its original power to habeas corpus alone? Again, it would be a reductio ad absurdum if we followed this argument to its natural conclusion and decided that the original jurisdiction of district courts of the territory was to be limited to these writs. Yet the permission to issue writs of habeas corpus is given to the supreme court and judges and the district court and judges in the same section and by the same words. We think that the eminent counsel who have so ably discharged their duty as amici curiae have confounded the abstract and relative powers of the judiciary, and that the act of the territorial legislature (section 2006) is no more in conflict with the acts of congress relative to our courts than is section 688 of the judiciary act in conflict with article 3 of the constitution; indeed, not so much so, because, by the constitutional provision referred to, the original jurisdiction of the supreme court of the United States is limited in terms; here the only limitation claim

ed is by implication. We might go further, and consider the question as to whether the inherent power of this, as an appellate court of common-law and chancery jurisdiction, would not extend to the issuing of prohibitory and mandatory writs; but this is unnecessary. See, however, Reese v. Lawless,

4 Bibb, 394. As to this objection, we will only cite, further, Clough v. Curtis, 134 U. S. 363, 10 Sup. Ct. 573.

It

As to the second proposition, it follows from our decision as to the first that, the legislature having power to provide for the issuing of the writ, it certainly has power, unless conflicting with an act of congress, to prescribe the rules for its issuance. is contended that the act of congress establishing the Fifth judicial district, and providing that three of the judges of the supreme court shall constitute a quorum, is such an inhibition. We find that under the law as laid down in all the old writers the court of chancery might award a writ of prohibition in vacation. Petersd. Abr. p. 65. The question might be a much more serious one if these were causes in which it was admitted that the courts, or court and board, had jurisdiction originally of the respective causes sought to be prohibited, and that the writ was asked to restrain their then proceeding without their jurisdiction. But the whole contention here is the want of original jurisdiction, and in such a case the issuing of the preliminary writ is even more in the nature of a ministerial act. It could not be contended that a person can be deprived of his property but by due process of law, and yet we see every day judges of this court, upon ex parte applications showing a prima facie case, issuing temporary restraining orders, as injunctions, which, for the time, have exactly the effect of depriving the owner of the use of his property, etc. The writ in these cases did no more, nor sought to do more, than prevent a court, which it was claimed possessed no jurisdiction, from acting, leaving the parties in statu quo, not in any manner disturbing their relations, but, on the other hand, preserving them until the matter could be heard on the merits. See State v. Weeks, 93 Mo. 499, 6 S. W. 266. We will now consider the third proposition, and the task has been somewhat lightened by what has already been said in discussing the first and second. It is contended that the district courts of this territory are not courts of inferior jurisdiction, and that the writ, under Smith v. Whitney, 116 U. S. 167, 6 Sup. Ct. 570, will not issue to them,-this in cause 561. It is further objected that the writ will not issue in No. 558-First, because the board of county commissioners is not a judicial body; and, second, because no objection was taken below to the exercise of jurisdiction by the board. As to the last, we cannot consider that matter here. No return has been made to the writ, and this hearing is had upon the petition alone, is entirely informal,

and not had as a matter of right, but merely as an accommodation to the worthy amici curiae who appeared below, it seems, for parties interested, and as settling the law and practice. We may say, however, that it is only necessary to plead to the jurisdiction below as a foundation for the writ where the lower court had jurisdiction of the orig inal subject-matter. See U. S. v. Peters, 3 Dall. 123; Miller, Const. 427; In re Cooper, 138 U. S. 404, 11 Sup. Ct. 289; 14 Petersd. Abr. p. 78. To go back to the law of England, we find that the writ will issue to the court of chancery of Chester, to the court of the marches of Wales, to the grand sessions of Wales, and in fact to any inferior court, by usurpation without lawful authority (7 Com. Dig. 137, 138); also to the court of exchequer, and to the court of common bench; in fact, to any but the great court of king's bench; and to common bench it goes to the judges (Id. 139; 17 Vin. Abr. p. 547). The writ goes from the supreme to the district courts of the United States. Rev. St. § 688. And our district courts have the same jurisdiction as these last. Id. § 1868. Being an exercise of the relative judiciary power, the superintending, appellate power, it also goes from the supreme court of the United States to the district court for the territory of Alaska, although the statute only directs it to the dis trict courts of the United States. Cooper, 138 U. S. 404, 11 Sup. Ct. 289. The contention that our district courts are not inferior courts is well founded in the technical sense in which this term is used; but, bearing in mind the distinction between the "abstract" ("apart or separate from something else") power of the judiciary and the “relative" ("having reference to." "not absolute or existing by itself") power, we can then see that in the sense in which the term "in ferior" is applied to courts to which the writ of prohibition will issue it is meant to convey the meaning of "relatively inferior." The district courts of the United States are not technically "inferior" courts, and yet their attempted exercise of power without their jurisdiction can be prohibited by a court to which they are relatively inferior. The supreme court of this territory is a controlling, superintending, appellate court. Rev. St. § 1869. Our district courts are not technically "inferior" courts, but are relatively inferior to this superintending tribunal, and in the exercise of its "relative" power this court can properly issue the writ to them. See Clough v. Curtis, 134 U. S. 361, 10 Sup. Ct. 573.

In re

directed to a relatively inferior court. The same argument might be made with reference to the writ of injunction, the writ of mandamus, etc., out of the district courts. In fact, it would equally apply to any extraordinary writ or remedy as a reason why extraordinary writs should never be issued. But we must bear in mind that the writ acts only as preservative of the status quo, and is not finally disposed of until term time, and by a quorum of the full bench in open court. It might be best to provide by legislation that the writ should only issue out of the court in term time, but the legislature evidently had in mind that only one term of this court is held in 12 months, and that grave injury might result from delay. By the terms of our statute, there is no attempt to exclude any court whatsoever from the operation of the writ. This statute, then, is not only constitutional, but operative in its broad sense, and the writ will go to a district court under our relative superintending appellate power. The objection to the issuing of the writ to the board because not a judicial body or tribunal appears not to be insisted upon. We may say, however, that the record in this case-i. e. the petition and order-show that the board of county commissioners had cited Sheriff Cunningham to appear before them and show cause why he should not be removed. Undoubtedly they supposed themselves to be acting as a quasi judicial tribunal at least, and under the citation they were undoubtedly so attempting to act. The law is well settled that the writ will issue to a board or officer exercising judicial or quasi judicial functions. High, Extr. Rem. §§ 769, 782.

We will next consider the question as to whether the writs issued providently. There being no return to the writ in either case, it would not be necessary to dwell upon this question in arriving at a conclusion in the causes, but we are desirous that the law, as we understand it, shall be settled definitely. It is settled at common law as well as by our statute that the writ will issue directly to the court or officer, and where the sole question is, as here, the want of original jurisdiction in the court or officer, we do not think it necessary to make the parties to the original proceeding parties to the writ. Id. 768, 774. Section 1865, Rev. St. U. S., provides: "Every territory shall be divided into three judicial districts; and a district court shall be held in each district of the territory by one of the justices of the supreme court, and at such time and place as may be prescribed by law," etc. Section 1874: "The judges of the supreme court of each territory are authorized to hold courts within their respective districts, in the counties wherein, by the laws of the territory, courts have been or may be established, for the purpose of hearing and determining all matters and causes, except those in which the United States is a party"; and proceeds to provide

that the expenses of holding such courts shall be borne by the territory or by the counties. Section 1851, as heretofore seen, provides that the legislative power of the territory shall extend to all rightful subjects of legislation not inconsistent with the constitution and laws of the United States; section 1866, that the jurisdiction of the courts mentioned in section 1907 (supreme, district, probate, and justices of the peace) shall be as limited by law; and section 1910, that each of the district courts shall have and exercise the same jurisdiction as district and circuit courts of the United States in all cases arising under the constitution and laws of the United States. Section 1874, Rev. St., was passed June 14, 1858. Up to this time the courts provided for in section 1907 (organic act) exercised jurisdiction in causes arising under the laws of the United States and under the laws of the territory, the two jurisdictions being, as it were, concurrent, or at least exercised by the same court. In January, 1859, the legislature of the territory, under the power delegated to it by said section 1874, Rev. St., provided for separate courts to be held in the counties for the trial of causes arising under the laws of the territory (chapter 6, Sess. Acts 1859), and by chapter 10, same acts, under the title "An act relative to practice in the district courts," remanded from the district courts of the several judicial districts to the district courts for the counties the causes not pending in said judicial district courts under the laws of the United States. By chapter 19 a jury law was enacted for the county district courts. By chapter 25, approved February 3, 1859, the time for holding said county district courts was fixed. Thus we see that at the first session of the territorial legislature after the passage of the act of June 14, 1858, advantage was taken of the provisions of the latter, and the jurisdiction of the district courts of the territory separated, to remain separate through all subsequent legislation; the courts for the trial of causes under the laws of the United States being designated as "judicial district courts," and those for the trial of causes under the laws of the territory being called "district courts for the counties." Distinct juries were provided for; the office of clerk of the United States side and clerk of the territorial side distinguished by provisions for the pay of the latter, etc.; the sheriff acting as officer of the court in the one, the marshal in the other; writs in the one running in the name of the United States and in the other in the name of the territory; in fact, the machinery of the courts differs in its construction, and is operated by distinct forces, except that both are presided over in the respective judicial districts by the one judge of each. It will not be questioned that congress, instead of giving permission to the territorial legislature to estab lish these courts, could have established them directly. If the latter had been the course