Santa Fe daily New Mexican. [volume] (Santa Fe, N.M.) 1885-1897, 1891-02-05


November l9, 1890, but the record shows
no further proceedings nor compliance
| with suid peremptory writ.
| A bill OF exception was filed by the re-
spondents on December 5, 1890, and the
cause is now in this court.
| Having thus fully stated the record, We
will now consider the law applicable to
! this cause.
1t is insisted on behalf OF the petitioners
tia. th9 court had no jurisdiction of the
subject matter, and therefore the writ OF
injunction was VOID, and being void, sd-
hitting that the petitioners had disobeyed
the writ, there could be no contempt.
1t may be admitted that if the court had
no jurisdiction OF the subject matter, that
is, an absolute lack of power, then there
could be no contempt in dlsobeying the
order OF the court, because the order and
process OF the court was void. The au-
thorltles are abundant in support Of this
proposition.
1t is contended on behalf of the officer
that the court had complete jurisdiction
III the premises; that the petitioners are
not illegally restrained, and should be re-.
mauded.
A large number OF authorities have been
cited, and an examination of them em-
phaszes the necessity of keeping in mind
the distinction between the entire want
OF power conferred by jurisdiction
and the erroneous exercise, or
the propriety of exercising the
power conferred. Courts OF equity have
very large discretionary powers, and in
the exercise Of that discretion, they have
declined to exercise jurisdiction and
power, which would have been exercised
had proper case been presented. No
positive and intlexibe rule can be laid
down, regulating the jurisdiction Of courts
of equity, or whether jurisdiction shall be
exercised or declined inasmuch as the
circumstances of each case must be taken
into consideration i'll determining these
questions, nor eau the authorities of one
state be relied upon as settling these
questions for another, for the reason thai
there may be constitutional or statutory
Limitations or engagements of jurisdiction
not common 10 all thereby necessltsting
careful examination of the law as applied
to the facts of each case.
La this case it is insisted that the court
had no jurisdiction because the petition
ers were acting as board OF canvassers
of an election ; that they had discretionary
powers; that they constituted an inde-
pendent political power, and we're free
from the interference Of the judicial
power. The case OF Dickey ct Al. vs. Reed
ct al, 18th Illinois, page 26l, is relied
upon as conclusive in this case.
! &t,,k, ala 4 ~ 4
to determine whether the City OF Chicago
should become incorporated under the
general incorporation act, or remain un-
der its charter; or rs the court says, the
election was to determine (which OF the
two forms of government it should have"
A bill in chancery vas flied alleging
fraud and irregularity in the election not
in the returns, and prayed an injunction
restraining the canvassing board from
canyasslng the returns OF the election
then in their possession. This was prop
erly denominated bill to contest the
election, which courts OF chancery
usually decline TO entertain, but
the Injunction sought to restrain the board
IRON doing legal duty, which the statute
OF Illinois imposed upon it to canvass the
returns. The lower court granted the in
junction, but the supreme court held that
the court had no jurisdiction of the case.
There is a marked distinction between
the proceedings in that case and the case
here, namely, that was bill in ChanCery
to contest all election, this was not; the
injunction in that case was to prevent the
board from performing a legal act and
duty the injunction in this case sought
tn prevent the board from doing an illegal
and fraudulent act. There liz also ma
teral difference between the law then in
force in Illinois, and the laws OF this ter
ritory, in that, in this territory the statute
expressly makes it the duty OF the courts,
when the county commissioners sit
ting IS canvassing board, fail or
refuse to canvass all of the re-
tnrns, on its being brought to the
attention OF the court, to compel The board
to canvass all the rel Wns. Section l3, OF
chapter 1876 of the laws Of 1889, is as fol-
lows:
THAT the board OF county commission
ers sitting as a canvassing board for the
purpose OF canvassing the returns of any
election hereafter held in this territory
shall not adjourn or become functus otiicio
as a canvassing board until such board OF
commissioners shall have canvassed each
and every return OF election before them
an d shall have declared the result from
the face OF such returns, and if any board
of county commissioners, sitting as a can
vassing board, .hall fail, neglect or refuse
to canvass any return of any election be-
fore said board under any preteGse that
such return is irregular, or for any other
pretense, it shall be lawful for any quail.
lied voter to present his petition under
oath to the judge of the district court hav-
ing Jurisdiction, at his chambers, briefly
setting forth the fact and circumstances,
and praying that such board of commits.
sioners shall be required by writ Of man
daInus issuing out of said court to count
and certify such returns. And therefore,
it shall be the duty of the district Judge to
Immediately issue or cause to be issued
his alternative writ OF mandamus requir-
ing said commissioners either to canvass
such return or returns, and to declare the
result, or to appear in person forthwith
before said court, and bring with them
all of such returns, and if such commits
sioners shall decline to canvass such re-
turn or returns, they shall appear before
said court, in obedience to such writ, and
take with them all of the returns or papers
purporting to be returns before them, and
thereupon, the court shall forthwith pro-
ceed to examine said returns, and upon
such examination, may issue his peremp-
tory writ, commanding said board Of COM
missioners to Immediately canvass any or
all OF such returns, and to declare the re-
suit"
Evidently, the legislature OF this terri.