Santa Fe daily New Mexican. [volume] (Santa Fe, N.M.) 1885-1897, 1896-09-26
new MEXICO SUPREME COURT
Application for Release Of the Con-
demned BorregOs on Habeas Cor
pus Denied Last Evening.
PETITION FOR An APPEAL REFUSED
Full Text of the Lucid Opinion of
Judge Collier Giving Reasons OF
the Court for Not Allow
ing An Appeal.

In the supreme court of the territory OF
New Mexico yesterday afternoon, Chief
Justice Smith presiding and Associate
Justices Collier and Bantz being present,
in the matter of the application of Fran
cisco Gonzales y Borrego, Antonio Con
zales Borrego, Lauriano Alarid and
Patricio Valencia for writ of habeas
corpus and discharge from custody, after
hearing argument IN the affirmative BY
Messrs. Catron 4 Spiess and in the mega
tive by Solicitor General Victory and
Judge Fl. l.. Warren, the court denied the
petition, discharged the writ of habeas
corpus and remanded the prisoners to the
custody of the sheriff of Santa Fe county.
Thereupon Messrs. Catron q Spiess
filed an application for an appeal to the
supreme court of the United States.
This was urged by the applicants and
strongly resisted by the solicitor-general
and Judge Warren.
The court not being sufficiently ad-
vised in the premises, the application was
last evening.
At the incoming of court last evening,
Judge Bantz handed down an opinion
giving the reasons why the court had
concluded to order stricken from the files
the proceedings had before Judge Laugh
lin to correct the record of the district
court In the case of Francisco Gonzales
y Borrego ct al.
Chief Justice Smith then announced
that, for reasons set forth in written
opinion by Judge Collier, the application
for an appeal to the United States supreme
court, from the decree In the matter of
the petition for a habeas corpus in be-
half of Francisco Gonzales Y Borrego ct al.
was denied. Annexed is the opinion of
Associate Justice Collier in the PREMISE:
OPINION OF JUDGE COLLIER.
In re application of Francisco Gonzales
y Borrego, Antonio Gonzales Borrego,
Lauriano Alarid and Patrlcio Valencia.
Habeas Corpus.
Per Curiam: In this case it is claimed
that an appeal should be granted from
this court discharging the writ of habeas
corpus upon the return made thereto by
respondent and remanding the petitioners
to the supreme court OF the United States.
Counsel for petitioners base their claim
for the allowance of an appeal upon two
grounds: First, that an appeal is DIS
tinotly provided for by the act of 1874,
embodied in section 1909 of the Revised
Statutes, and by section 10 of the Organic
Act for New Mexico; and, second, that 1t
should be allowed under the act Of con-
gress Of March 8, 1885, entitled "An act
regulating appeals from the supreme
court of the District of Columbia, and the
supreme courts of the several territories"
It must be conceded that, unless the
portions of sections 1909 and 10, supra,
relating to appeals and writs of error in
habeas corpus proceedings are superseded
or repealed by the act Of March 8, 1885,
supra, the allowance of an appeal is men-
datory in this character of case, but, If
said act governs us In this matter, we must
then look to it to ascertain If an appeal
lies.
We think that the reasoning in Gross
vs. Burke, 146 U. =. 80, is controlling on
this question, and leads irresistibly to the
conclusions, that just as for the District
of Columbia the act of March 3, 1885,
covered the entire subject of appeals,
except as under section s of the act of
1891 for the establishment of circuit
courts Of appeal, SO also it covers the en-
tire subject of appeals from supreme
courts of territories to the supreme
court of the United States, the act of
1891, supra, providing in no way for such
appeals. All antecedent legislation, there
fore, providing for appeals from terri
torial supreme courts we must consider
superseded by the comprehensive plan
created by the act of 1885, supra.
An apt illustration, as to how section
10 of our Organic Act and section 1909,
r. g., pass entirely from consideration
as no longer existing legislation, 10 shown
by the argument in the opinion by the
chief Justice IN Cross vs.. Burke, SUPRA,
pointing ont how section 764 B. 8. no
longer applies to the District of Oolum-
bia, because of the said act of March 3,
1885.
But it is urged that under said act of
March 3, 1885, an appeal lies under the
terms of section of that act, because IL
IS claimed that the Justice who tried the
cause, and who amended the record while
the cause was on writ of error in this
court, was acting without authority of
law, while pretending to act under an
authority of the United States, aud that
everything done by him was coram non
judice.
1t is unnecessary for US to say whether
or not the application for the writ OF
habeas corpus distinctly draws in ques-
tion such an exercise of authority, as In
our view, even if it did, appeal would not
lie in habeas corpus cases. Whatever
might be our impression as to this,
Cross vs.. Burke, supra, is also controlling
on this question. We quote as sufficient
on this sub iect from that opinion: ut 10
we'll settled that proceeding in habeas
corpus is a civil and not q criminal pro.
ceed,ng. Farnsworth vs. Montana, 1879,
U. 8. 1O4; ex psrte Fow Tong, 108, U. y.
application here was brought by petit
tioner to assert the civil right Of personal
liberty against the respondent, who 10
holding him in custody as . criminal, and
the inquiry is into his right to liberty
notwithstanding his condemnation"
In order to give this court Jurisdiction
under the act of March 8, 1885, last re-
ferred to, the matter in dispute must be
money, or some right, the value of which
in money can be consulated and ascer-
tanned. And, as in this case, the matter
in dispute has NO money value, the result
is no appeal lies. This reasoning 10 af-
frmed in In 70 Lennon $50 U. 8. 1893.
II is to be sald, that territorial supreme
courts OCCUPY as to rights of appeal in
habeas corpus cases the same position
that the supreme court OF the District of
Columbia occupied between March 8,
1885, and the passage Of the act Of 1891,
supra, the. last named act affecting the
District of Columbia, but mot the territor-
les.
The case In re Dslgado, l40 U. 8. $50,
10 called to our attention % showing an
appeal from this court in q habsas COR