# Borrego v. Cunningham/Opinion of the Court

* Court Documents
* Case Syllabus
* Opinion of the Court
United States Supreme Court
164 U.S. 612
Borrego v. Cunningham
This is a motion to dismiss the appeal, on the ground that appeals will not lie to this court from final order of the supreme courts of the territories on habeas corpus, and a motion in the alternative to affirm the final order sought to be reviewed, because so manifestly correct that the appeal must be regarded as taken for delay only.
In Cross v. Burke, 146 U.S. 82, 13 Sup. Ct. 22, it was held that we had no jurisdiction over the judgments of the supreme court of the District of Columbia in this class of cases. The statutes in relation to habeas corpus were there reviewed, and it is not necessary to go over them again in detail.
By section 763 of the Revised Statutes it was provided that an appeal to the circuit court might be taken from decisions on habeas corpus: (1) In the case of any person alleged to be restrained of his liberty in violation of the constitution or of any law or treaty of the United States. (2) In the case of the subjects or citizens of foreign states, when in custody, as therein set forth. By section 764 an appeal from the circuit court to this court might be taken in 'the cases described in the last clause of the preceding section.'
Section 705 of the Revised Statutes read: 'The final judgment or decree of the supreme court of the District of Columbia, in any case where the matter in dispute, exclusive of costs, exceeds the value of one thousand dollars, may be re-examined and reversed or affirmed in the supreme court of the United States, upon writ of error or appeal, in the same manner and under the same regulations as are provided in cases of writs of error on judgments, or appeals from decrees rendered in a circuit court.'
Section 846 of the Revised Statutes of the District of Columbia was as follows: 'Any final judgment, order, or decree of the supreme court of the District may be re-examined and reversed or affirmed in the supreme court of the United States, upon writ of error or appeal, in the same cases and in like manner as provided by law in reference to the final judgments, orders, and decrees of the circuit courts of the United States.'
On February 25, 1879, an act was passed which provided: 'The final judgment or decree of the supreme court of the District of Columbia in any case where the matter in dispute, exclusive of costs, exceeds the value of twenty-five hundred dollars, may be re-examined and reversed or affirmed in the supreme court of the United States, upon writ of error or appeal in the same manner and under the same regulations as are provided in cases of writs of error on judgments or appeals from decrees rendered in a circuit court.' 20 Stat. 320, c. 99, § 4.
By act of congress of March 3, 1885 (23 Stat. 437, c. 353), section 764 of the Revised Statutes was so amended as to remove the restriction to the second clause of section 763, and restore the appellate jurisdiction of this court from decisions of the circuit courts in habeas corpus cases as it had existed prior to the passage of the act of March 27, 1868 (15 Stat. 44, c. 34). But this did not have that effect as to judgments of the supreme court of the District of Columbia in those cases, for the reasons given in Re Heath, 144 U.S. 92, 12 Sup. Ct. 615, and Cross v. Burke, 146 U.S. 82, 13 Sup. Ct. 22.
On the same 3d of March, A. D. 1885, congress passed an act 'regulating appeals from the supreme court of the District of Columbia and the supreme courts of the several territories.' 23 Stat. 443, c. 355. The first section of this act provided 'that no appeal or writ of error shall hereafter be allowed from any judgment or decree in any suit at law or in equity in the supreme court of the District of Columbia, or in the supreme court of any of the territories of the United States, unless the matter in dispute, exclusive of costs, shall exceed the sum of five thousand dollars;' and the second section, that the first section should not apply to any case 'wherein is involved the validity of any patent or copyright, or in which is drawn in question the validity of a treaty or statute of or an authority exercised under the United States; but in all such cases an appeal or writ of error may be brought without regard to the sum or value in dispute.' We have repeatedly decided that this act did not apply, in either section, to any criminal case, and that it was only applicable to judgments and decrees in suits at law or in equity in which there was a pecuniary matter in dispute; hence, that as it was well settled that a proceeding in habeas corpus was a civil, and not a criminal, proceeding, and was only availed of to assert the civil right of personal liberty, the matter in dispute had no money value, and an appeal would not lie. Cross v. Burke, 146 U.S. 82, 13 Sup. Ct. 22; Farnsworth v. Montana, 129 U.S. 104, 9 Sup. Ct. 253; U.S. v. Sanges, 144 U.S. 320, 12 Sup. Ct. 609; Washington & G. R. Co. v. District of Columbia, 146 U.S. 227, 13 Sup. Ct. 64; In re Lennon, 150 U.S. 395, 397, 14 Sup. Ct. 123; In re Chapman, 156 U.S. 211, 215, 15 Sup. Ct. 331; In re Belt, 159 U.S. 95, 100, 15 Sup. Ct. 987; Chapman v. U.S., 164 U.S. 436, 17 Sup. Ct. 76; Perrine v. Slack, 164 U.S. 452, 17 Sup. Ct. 79.
The supreme court of New Mexico declined to allow an appeal in this case, because of the rule laid down in Cross v. Burke and in Re Lennon, supra; and it may be admitted that the view that an appeal would not lie might well have been entertained. But we think that the legislation in respect of the review of the final orders of the territorial supreme courts on habeas corpus so far differs from that in respect of the judgments of the courts of the District of Columbia that a different rule applies.
It will be perceived that the revision of the final judgments or decrees of the supreme court of the District depended on the provision that they should be so re-examinable in the same cases and in like manner as the final judgments of the circuit courts of the United States, and that there was no special provision in relation to the review of final orders of such courts on habeas corpus.
Sections 702 and 1909 of the Revised Statutes are as follows:
'Sec. 702. The final judgments and decrees of the supreme court of any territory, except the territory of Washington, in cases where the value of the matter in dispute, exclusive of costs, to be ascertained by the oath of either party, or of other competent witnesses, exceeds one thousand dollars, may be reviewed and reversed or affirmed in the supreme court, upon writ of error or appeal in the same manner and under the same regulations as the final judgments and decrees of a circuit court. * * *' 'Sec. 1909. Writs of error and appeals from the final decisions of the supreme court of either of the territories of New Mexico, Utah, Colorado, Dakota, Arizona, Idaho, Montana, and Wyoming, shall be allowed to the supreme court of the United States, in the same manner and under the same regulations as from the circuit courts of the United States, where the value of the property or the amount in controversy, to be ascertained by the oath of either party, or of other competent witnesses, exceeds one thousand dollars, except that a writ of error or appeal shall be allowed to the supreme court of the United States from the decision of the supreme courts created by this title, or of any judge thereof, or of the district courts created by this title, or of any judge thereof, upon writs of habeas corpus involving the question of personal freedom.'
This section was one of those under title 23, 'The Territories,' and the exception was brought forward from section 10 of the organic law of New Mexico, approved September 9, 1850 (9 Stat. pp. 446, 449, c. 49).
As to the supreme court of the District of Columbia, its final judgments, orders, and decrees were reviewable by this court on writ of error or appeal, by section 705 of the Revised Statutes, and section 846 of the Revised Statutes of the District, in the same cases and in like manner as provided by law in reference to the final judgments, orders, and decrees of the circuit courts of the United States, and there was no mention of final orders on habeas corpus; but, as to the supreme courts of the territories, the right of appeal in habeas corpus was given in addition by the special provision of section 1909 of the Revised Statutes. When the Revised Statutes and the Revised Statutes of the District were approved, both on the same day (June 22, 1874), appeals could not be taken from the decisions of circuit courts on habeas corpus except in the instance of the subjects or citizens of foreign states; and the act of March 3, 1885 (chapter 353), restoring the appellate jurisdiction of this court in respect of final decisions of the circuit courts on habeas corpus in cases of persons alleged to be restrained of their liberty in violation of the constitution or any law or treaty of the United States, did not operate to give the same right of appeal to the courts of the District of Columbia. And then the second act of March 3, 1885 (chapter 355), came in to furnish the exclusive rule as to appeals and writs of error to review the final judgments and decrees of the courts of the District. And this would have been equally true as to the courts of the territories if jurisdiction had depended solely on section 702 of the Revised Statutes; but under section 1909 an appeal would lie to this court from the decisions of the territorial supreme courts on habeas corpus when it would not lie from circuit courts or courts of the District of Columbia in like case, and the question on this record as to the right of appeal is whether congress intended to repeal that special provision as to final orders on habeas corpus by including the supreme courts of the territories in the act of March 3, 1885 (chapter 355). The intention to do so is not expressed, and repeals by implication are not favored. The act covered substantially the entire ground as to the District of Columbia as the statutes stood, but, while it might be fairly argued that it did so as to the territories, it does not necessarily follow that the exception in respect of final orders on habeas corpus was designed to be affected. The act has its obvious field of operation without being assumed to be in every respect a substitute for the earlier law in relation to the territories; and since the last clause of section 1909 was directed to a special object, and applicable to particular cases, we think it may properly be held that the act of March 3, 1885, had only general cases in view, and that it was not intended to do away with the special provision. Indeed, it was distinctly ruled in Re Snow, 120 U.S. 274, 7 Sup. Ct. 556, that an appeal would lie under section 1909 from a final order entered in 1886 on habeas corpus by the supreme court of the territory of Utah; and this notwithstanding the act of March 3, 1885 (chapter 355), which was quoted and referred to in Snow v. U.S. 118 U.S. 346, 6 Sup. Ct. 1059. Jurisdiction was also entertained of such an appeal in Nielsen, Petitioner, 131 U.S. 176, 9 Sup. Ct. 672, from a final order of a district court of the territory of Utah, and in Re Delgado, 140 U.S. 586, 11 Sup. Ct. 874, from a final order of a district court of New Mexico.
This result is not affected by the judiciary act of March 3, 1891 (26 Stat. 826, c. 517). Shute v. Keyser, 149 U.S. 649, 13 Sup. Ct. 960; Folsom v. U.S., 160 U.S. 121, 16 Sup. Ct. 222; In re Lennon, 150 U.S. 393, 14 Sup. Ct. 123; In re Heath, 144 U.S. 92, 12 Sup. Ct. 615.
But, although the motion to dismiss for want of jurisdiction will be overruled, we are of opinion that the motion to affirm must be sustained. The general rule is well established that a writ of habeas corpus cannot be used to perform the office of a writ of error, and that this doctrine applies not only to original writs of habeas corpus issued by this court, but on appeals to it from courts below in habeas corpus proceedings. In re Schneider, 148 U.S. 162, 13 Sup. Ct. 572; Benson v. McMahon, 127 U.S. 457, 461, 462, 8 Sup. Ct. 1240; Stevens v. Fuller, 136 U.S. 468, 478, 10 Sup. Ct. 911.
The contention here is that the proceedings before Judge Hamilton were coram non judice and void, because, being the member of the supreme court assigned to the Fifth district, he could not exercise judicial power in the First district.
By section 1851 of the Revised Statutes, it was provided that 'the legislative powers of every territory shall extend to all rightful subjects of legislation not inconsistent with the constitution and laws of the United States.'
By section 1865, that 'every territory shall be divided into three judicial districts; and a district court shall be held in each district of a territory by one of the justices of the supreme court, at such time and place as may be prescribed by law, and each judge, after assignment, shall reside in the district to which he is assigned.'
By section 1874, that 'the judges of the supreme court of each territory are authorized to hold court 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.'
Section 1907 provided that 'the judicial power in New Mexico, Utah, Washington, Colorado, Dakota, Idaho, Montana, and Wyoming shall be vested in a supreme court, district courts, probate courts and in justices of the peace.'
These provisions, mutatis mutandis, were contained in the organic law of New Mexico.
The number of judges of that territory having been raised to five, it was provided by an act of July 10, 1890 (26 Stat. 226, c. 665):
'Sec. 3. That the said territory shall be divided into five judicial districts, and a district court shall be held in each district by one of the justices of the supreme court, at such time and place as is or may be prescribed by law. Each judge, after assignment, shall reside in the district to which he is assigned.
'Sec. 4. That the present chief justice and his associates are hereby vested with power and authority, and they are hereby directed, to divide said territory into five judicial districts, and make such assignments of the judges provided for in the first section of this act as shall in their judgment be meet and proper.'
Section 1852 of the Compiled Laws of New Mexico of 1884 is as follows: 'When any justice of the supreme court shall be absent from his district, or shall be in any manner incapacitated from acting or performing any of his duties of judge or chancellor, in his district, or from holding court therein, any other justice of the supreme court may perform all such duties, hear and determine all petitions, motions, demurrers, grant all rules and interlocutory orders and decrees, as also all extraordinary writs in said district.'
It appears to us that this enactment was within the power of the legislative assembly under the Revised Statutes, and that it is not inconsistent with the provision for the assignment of the judges to particular districts, and their residence therein.
By the organic act and the Revised Statutes, the whole of the judicial power of the territory was vested in the supreme court, district and probate courts, and justices of the peace; and the supreme court and district courts possessed common-law and chancery jurisdiction. The supreme court of the territory held that the judicial power which was thus vested in plenary terms in the district courts was to be exercised in each district 'by one of the justices of the supreme court,' and that the organic law did not require that it should be exercised by any particular one of the justices; that while, for the convenience of the public, it was provided that a justice should be assigned to each district, and reside therein, there was no express or implied prohibition upon any judge against exercising the power in any district other than the one to which he had been assigned; and that there was nothing in the language of the provision requiring such a construction as would confine the exercise of the power to the particular justice assigned to a district when he might be otherwise incapacitated. 46 Pac. 363. We concur in these views, and are unable to perceive any want of jurisdiction on the part of the district court in the proceedings had against petitioners, or any violation of the constitution or laws of the United States in that regard.
And this disposes of the objection that the amendment of the record so as to show the arraignment and pleas of defendants was improvidently made. Jurisdiction existed, and the action of the district court and its recognition by the supreme court were in accordance with the rule as to entries nunc pro tunc. In re Wright, 134 U.S. 136, 10 Sup. Ct. 487; U.S. v. Vigil, 10 Wall. 423.
It is insisted, however, that jurisdiction to render the judgment was lacking, because of the expiration of the special term, or its termination by conflict with the regular terms of the district court before the trial was concluded.
The sections of the Compiled Laws of New Mexico of 1884 bearing on this subject, and the first section of the territorial act of February 22, 1893 (Laws N. M. 1893, p. 51, c. 34), are given in the margin.
These compiled laws were prepared by a commission authorized to make 'a careful and accurate compilation of all of the laws, general local, and private, which shall be in force on the fifth day of May, 1884'; and the commissioners were careful, as they say in the preface to their work, to avoid 'making changes in any original law.' The compilation of general laws embraced the Revision of 1865 and the session laws thereafter. Section 553 was taken from section 4 of chapter 18 of the Revised Laws of 1865, the chapter embodying the previous law of January 13, 1862. Section 552 was section 3 of chapter 26 of the Laws of 1874, approved January 3d; and section 552a was section 3 of chapter 27, of the Laws of 1874, approved January 6th. Laws 1874, pp. 47, 49. The compilation of 1884 was published in accordance with the act authorizing it to be made.
June 14, 1858, congress passed an act (carried forward as section 1874 of the Revised Statutes) providing 'that the judges of the supreme court of each territory of the United States are hereby authorized to hold court within their respective districts, in the counties wherein, by the laws of said territories, 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: provided, that the expenses thereof shall be paid by the territory, or by the counties in which said courts may be held and the United States shall in no case be chargeable therewith.' 11 Stat. 366, c. 166. Accordingly, terms of court in the several counties were duly provided for by the territorial legislature, and these terms in the counties in the First judicial district were fixed by the first section of the territorial act of February 22, 1893.
By other sections than those before given, it was provided that district courts in the several counties in which they might be held should have power and jurisdiction of all criminal cases that should not otherwise be provided for by law; of all criminal cases that might originate in the several counties which according to law belong to the district courts, or that might be presented by indictment, information, or appeal; and that the costs, charges, and expense of holding and maintaining the district courts and the costs in causes determined against the territory should be paid by the territory. Comp. Laws, §§ 531, 532, 540.
By section 20 of chapter 61 of the Acts of 1893, the respective counties of the territory were required to provide for the expenses of the district courts by levy of taxes as therein prescribed. Laws 1893, p. 108.
The supreme court of the territory held that the requirement that the respective counties should provide for the expenses of their district courts under this section, which we have not felt called upon to set forth in extenso, practically inhibited terms in counties in which there were no funds, and declared that it had been a frequent consequence of this system that courts could not be, and were not, held in some of the counties at the time fixed by the statute. The laws of New Mexico contained the usual provision for adjournment of terms to terms in course on the nonattendance of the judge (section 537); and it was not contended here that, in fact, regular terms of the district court were held in the county of San Juan in April, in the county of Rio Arriba in May, and in the county of Taos in May, while the special term was in session. From the various provisions of the acts referred to, it appears that no specific duration of either regular or special terms was prescribed by law, but that they were subject, when lawfully commenced, to be continued until adjourned by order of court; and that, therefore, they could not be necessarily determined by the advent of the particular days designated for the commencement of regular terms; and that special terms might be ordered when regular terms failed to be held, and also whenever, in the discretion of the judge of any district court a furtherance of justice required it.
Under section 552, which was section 3 of chapter 26 of the Laws of 1874, when special terms were held because the regular term had failed, it was provided that any such special term should not conflict with the regular term in any other county in the same judicial district,-that is, that it should not be so called as to produce a conflict or be held in actual conflict; while by section 3 of chapter 27 of the Laws of 1874, being section 552a, no specific limitations were imposed in respect of a special term called thereunder. There was nothing in any of these provisions which controlled the discretion of the trial judge in continuing any special term he may have been holding until a pending case was concluded, and nothing which operated to invalidate the proceedings of such special term because prolonged beyond the day fixed for a regular term. Jurisdiction did not depend on the stroke of the clock. Election Cases, 65 Pa. St. 34; Briceland v. Com., 74 Pa. St. 463; Bank v. Withers, 6 Wheat. 106; Maish v. Arizona, 164 U.S. 599, 17 Sup. Ct. 193.
This trial was commenced on April 23, 1895, which was, as the record declared, the thirty-second day of the special term, which had commenced March 18, and was concluded on May 29, 1895, the sixty-third day of said special term, by the return of a verdict of guilty. The motions for new trial and in arrest were denied, and the sentence pronounced on June 15, 1895, one of the days of the regular term of the district court; the postponement to that day having been granted on the request of defendants. Under these circumstances, the proceedings, in any view, cannot be held void for want of jurisdiction. McDowell v. U.S., 159 U.S. 596, 16 Sup. Ct. 111.
Order affirmed.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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