Santa Fe daily New Mexican. [volume] (Santa Fe, N.M.) 1885-1897, 1897-01-02

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it may properly be held that the act o
March 3, 1885, had only general cases it
view, and that it was not intended to dc
away with the special provision. Indeed
it was distinctly ruled in Ia re Snow, l2(
U. s. 274, that an appeal would lie unde
section 1909 from final order entered il
1856 on habeas corpus by the supreme
court OF the territory of Utah; and this
Notwithstanding the act of March 3, 1885
(c. 355,) which was quoted and referred
to in Snow 2. United States, 118 U. S
346. Jurisdiction was also entertained o
such an appeal in Nielsen, petitioner
131 U. s. l76, from final order of dis
trict court of the territory of Utah and Ii
re Delgado, petitioner, 140 U. s. 5S6
from final order of district court Of
New Mexico.
The result is not affected by the Judi
ciary act OF March 3, 1891, (26 Stat. S26
@. 5l7; Shute v. Keyser, 149 U. s. 649
10 re Lennon, $50 U. S 1893; Ia re Heath,
la U. s, 90.
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 il
well established that writ of habeas
corpus can not be used to perform the
office of writ of error, and that this
doctrine applies not ouly to original
writs of habeas corpus issued by this
court, but on appeals to it from courts
below in habeas corpus proceedings. Ia
re Schneider. 14S U. S. 1862; Benson v.
McMahon, 1877 u s. 457, 461, 462; Ste
vens v. Fuller, 1876, U. s. 46S, AIS.
The contention here Is that the pro-
ceedings before Judge Hamilton were
coram non judice and void because, be.
ing the member of the supreme court
assigned to the fifth distriat, he could not
exercise judicial power III the first dis.
trict.
By section 1851 of the Re ised Statutes,
it was provided that "the gisavs pow
ers of every territory shall extend to all
rightful subjects Of legislation not in
consistent with the constitution and laws
of the United States"
By section 1865, that "eyery territory
shall be divided into three judicial dis
tricts; and district court shall be held
in each district of 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,
shell reside in the district to which he is
assigned"
By section 1874, that "the Judges of the
supreme court of each territory are au-
thorized to hold court in 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 party"
Section 1907 provided that "the judi
oial power in New Mexico, Utah, Wash
ington, Colorado, Dakota idaho, Mon
tana and Wyoming shall be vested in
supreme court, district courts, probate
courts and justices of the peace"
These provisions, mutatis mutandis,
were contained in the organic law Of
New Mexico.
The number of judges Of that terri
tory having been raisedt to five, it was
provided by an act of Juv 10, 1890,
(26 Stat.226, C 665:) "Sec. 8. That the
said territory shall be divided into Eve
judicial districts, and district court
shall be held in each distriis BY one Of
the justices of the supreme court, at
such time and place as is or may be pre-
scribed by law. Each judge,-after as
sgnment, shall reside in the district to
which he is assigned. Sec. 4. That the
are hereby vested with power and au.
thority, and they are hereby directed, to
divide said territory into five Judicial dis
tricts, 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 hold
ing 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
orders and DEGREES, as also
all extraordinary writs in said district"
1t 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 pro-
visions 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 su-
preme court, district and probate courts,
and justices of the peace; and the su-
preme court and district courts possessed
common law and chaucerY Jurisdiction.
The supreme court of the territory held
that the judicial power which was thus
vested in pleuary terms in the district
courts was to be exercised in each district
"by one of the justices of the supreme
req uire 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 construction as would
confine the exercise of the power to the
particular justice assigned to a district
when he might be otherwise inoap pacitated.
46 Pac. Rep. 1858. 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