McFie, J.
On the twelfth day of January, A. D. 1891, on petition of John H. Sloan and Teodoro Martinez, alleging, in substance, that petitioners were •unlawfully' confined and restrained of their liberty by the sheriff of Santa Fe county, a writ of habeas corpus issued out of this court, directing Francisco Chavez, sheriff of Santa Fe county, to bring the petitioners before this court, to show cause why petitioners should not be discharged. The record discloses all of the proceedings had before Edward P. Seeds, associate justice of the supreme court of the territory of New Mexico, and judge of the First Judicial District court thereof, of which the county of Santa Fe forms a part, sitting in chambers in the city of Santa Fe, in said county, in a certain mandamus proceeding, number 2808, filed November 12, 1890, entitled “The Territory of New Mexico ex rel. Benjamin M. Read v. John H. Sloan, George L. Wyllys, and Teodoro Martinez, board of county commissioners of Santa Fe county,” and a certain proceeding by injunction, number 2809, filed November 12, 1890, entitled “Benjamin M. Read, Joseph B. Mayo, and Thomas B. Catron v. JohnH. Sloan, George L. Wyllys, and Teodoro Martinez.” Upon the healing, January 23, A. D. 1891, no technical objections were raised to the formality of the proceedings, but, on the contrary, counsel for petitioners denied the jurisdiction of the court over the subject-matter, and the power of - the court to issue the process by which petitioners were held, and contended that the same was-void. The facts out of which this controversy grows are pretty fully stated in the application for injunction, which is as follows:
“Territory of New Mexico, county of Santa Fe. In the district court for the said county of Santa Fe, sitting for the trial of causes arising under the laws of said territory.
“To the Hon. Edward P. Seeds, associate justice of the supreme court of said territory, and judge of said district court.
“Benjamin M. Read, Joseph B. Mayo, and Thomas B. Catron, residents of said county, bring this, their bill of complaint, against John H. Sloan, George L. Wyllys, and Teodoro Martinez, also residents of said county, and show' unto your honor: Complainants were candidates at the election held in said • county on the fourth day of November, 1890, said Read and Mayo for the offices of members of the house of representalives of the legislative assembly of New Mexico, and said Catron for the office of member of the council of said legislative assembly, and, as such candidates, were voted for by voters of said county, and, as shown by the election returns, received majorities of the votes cast for said offices, respectively. Defendants are the county commissioners of said county, and, as such, are required by law, within six days after an election, to publicly examine and count the votes polled for each candidate, and to forward to the persons who have received the greatest number of votes polled at any election held for members of the house of representatives the corresponding certificate of election. That defendants have assembled at the courthouse in the county of Santa Fe for the purpose aforesaid, but have failed, neglected, and refused to count a portion of the votes polled at said, election for these complainants, such portion being the votes cast for complainants in the precincts of said county numbered 1, 2, 8, 11, and 16; the returns of election from said precincts being before said defendants, and in regular and perfect condition. The failure and refusal of defendants to count said votes as shown by said returns will materially affect the result of said count so as to make it appear that ■persons other than complainants have been elected to said offices, although'such is not really the fact; and defendants give out and threaten that they will make and .deliver, or cause to be made and delivered, to such other persons, certificates showing their election to the offices aforesaid, and complainants believe that they will certainly do so unless restrained by an order of this court. If such certificates are so made and issued to such other persons, great and irreparable damage may, and probably will, result to complainants, and to each of them, and to the public generally, and the existence of such certificates may, and probably will, be the cause of numerous suits and vexatious and expensive litigation, as has heretofore been the case in this territory under similar circumstances. As soon as the said count by defendants is completed, complainants will institute, or cause to be instituted, in- accordance with the statute, proceedings in mandamus to compel defendants to canvass all of the returns of said election in said county; but before such proceedings can be made effective, and before the complete canvass can be made, defendants will issue, or cause to be issued, such improper and fraudulent certificates of election as hereinbefore described. Complainants therefore pray that defendants be restrained and enjoined by an injunction of this court from making and delivering, or ordering or causing to be made or delivered, any certificate of election to either of the offices hereinbefore mentioned to any person or persons other than these complainants, and from making, or causing to be made, any record of the result of their canvass of said election returns, until the further order of the court in the premises. May it please your honor to grant unto complainants the written subpoena, under the seal of this honorable court, directed to defendants, John H. Sloan, Gfeorge L. Wyllys, and Teodoro Martinez, commanding them, and each of them, to appear before this court on a day and under a penalty to be therein fixed, then and there to answer unto the premises as fully as if the same were here repeated, and they particularly interrogated thereto, but not under oath, an answer under oath being hereby expressly waived, and to abide the order or decree of the court in the premises. Benjamin M. Read.”
“Territory of New Mexico, county of Santa Fe.
“On this twelfth day of November, A. D. 1890, personally appeared before me Benjamin M. Read, and made oath that he had read the foregoing bill by him subscribed, and knew the contents thereof, and that the same is true, except as to matters therein alleged upon information and belief, and as to those matters he believes it to be true.
“Witness my hand and the seal of the district court of the First Judicial District of the territory of New Mexico, the day and year last above, written.
[seal] “A. E. Walkee, Clerk District Court.”
The writ of injunction is as follows:
“The territory of New Mexico to John H. Sloan, George
L. Wyllys, and Teodoro Martinez, greeting:
“Whereas, Benjamin M. Bead, Joseph B. Mayo, and Thomas B. Catron have filed in the district court for Santa Fe county their bill of complaint against you, praying to be relieved touching the matters therein set forth, now, therefore, you, the said John H.. Sloan, George L. Wyllys, and Teodoro Martinez, both individually and as members of the board of county commissioners of Santa Fe county, your agents, servants, employees, and advisers, are hereby restrained and enjoined from making or delivering, or ordering or causing to be made or delivered, any certificate of election to the offices of members of the house of representatives of the legislative assembly of the territory of New Mexico, and of member'of the council of said legislative assembly, to any person or persons other than said Benjamin M. Beid, Joseph B. Mayo, and Thomas B. Catron, and from making or causing to be made any record of the result of your canvass of the election returns of the election held in said county of Santa Fe on the fourth day of November, 1890, until the further order of said district court in the premises. Witness the Honorable Edward P. Seeds, associate justice of the supreme court of the territory of New Mexico, and judge of the First Judicial District Court thereof, and the seal of said district court, this twelfth day of November, 1890.
[seal] “A. E. Walkee, Clerk.”
The injunction not having been dissolved, but remaining in force, two affidavits were filed in the cause setting forth the disobedience of the writ of injunction by two of the said county commissioners, John H. Sloan and Teodoro Martinez. Thomas B. Catron, one of the complainants, filed his petition setting forth the violation of the injunction by two of the commissioners, Sloan and Martinez, and prayed that they should be punished for contempt. The court ordered Sloan and Martinez brought before the court by attachment, and upon hearing they were each fined in the sum of $200, and costs, and ordered to be imprisoned in the county jail until fine and costs were paid. The petitioners refused to pay the fine and costs assessed against each of them, and were put in jail by the sheriff. To avoid payment of the fines assessed, and costs, and be discharged from imprisonment, petitioners have sued out this writ of habeas corpus. The law governing the mandamus proceedings in this case is section 13, chapter 135, Laws, 1889, and took effect February 28, 1889. In compliance with that section, Mr. Read filed his sworn petition on the twelfth day of November, 1890, alleging the refusal of John H. Sloan, Teodoro Martinez, and George L. Wyllys, as such canvassing board, to count the returns from certain precincts named; and the court granted an alternative writ of mandamus requiring the canvassing board to proceed to either canvass the returns from the precincts named, and declare the result, or to appear in person forthwith before said district court, and bring with them all of such returns, and all of the returns or papers purporting to be returns. The board, accompanied by counsel, appeared before the court on the following day, and filed an answer stating in full their reasons for declining to canvass the returns, and declare the result, as directed by the court, and asked to be discharged. On application of counsel for the relator a peremptory writ of mandamus, as to the canvassing of precincts 1, 2, 16, and 8, was issued November 18, 1890, returnable November 19,1890, but the record shows no further proceedings, nor compliance with said peremptory writ. A bill of exceptions was filed by the respondents on December 5, 1890, and the cause is now in this court.
habeas corpus: junction1f^uris" dlctl0n' Having thus fully stated the record, we will now consider the law applicable to this cause. It is insisted on behalf of the petitioners that the court had no jurisdiction of the subject-matter, and, therefore, the writ of injunction was void; and being void, admitting that the petitioners had disobeyed the writ, there could be no contempt. It 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 disobeying the order of the court, because the order and process of the court was void. The authorities are abundant in support of this proposition. It is contended on behalf of the officer that the court had complete jurisdiction in the premises; that the petitioners are not illegally restrained, and should be remanded. A large number of authorities have been cited, and an examination of them emphasizes the necessity of keeping ;in mind the distinction between the entire want of power conferred by jurisdiction and the erroneous exercise of 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 a jurisdiction and power which would have been exercised had a proper case been presented. No positive and inflexible 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 in determining these questions. Nor can the authorities of one state be relied upon as settling these questions for another, for the reason that there may be constitutional or statutory limitations or enlargements of jurisdiction not common to all; thereby necessitating a careful examination of the law as applied to the facts of each case.
In this ease it is insisted that the court had no jurisdiction, because the petitioners were acting as a board of canvassers of an election; that they had discretionary powers; that they constituted an independent political power, and were free from the interference of the judicial power. The case of Dickey et al. v. Reed et al., 78 Ill. 261, is relied upon as conclusive in this case. In that case an election had been held to determine whether the city of Chicago should become incorporated under the general incorporation act, or remain under its charter; or, as the court says, the election was to determine “which of two forms of government it should have.” A bill in chancery was filed, alleging fraud and irregularity in the election, not in the returns, and prayed an injunction restraining the canvassing board from canvassing the returns of the election then in their possession. This was properly denominated a “bill to contest the election,” which courts of chancery usually decline to entertain; but the injunction sought to restrain the board from doing a legal duty which the statute of Illinois imposed upon it, — to canvass the returns. The lower court granted the injunction, but .the supreme court held that the court had no jurisdicton of the case. There is a marked distinction between the proceedings in that case and the case here, namely: That was a bill in chancery to contest an 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 to prevent the board from doing an illegal and fraudulent act. There is also a material difference between the’law then in force in Illinois and the laws of this territory, in that in this territory the statute expressly makes it the duty of the courts, when the county commissioners, sitting as a canvassing board, fail or refuse to canvass all of the returns, on its being brought to the attention of the court, to compel the board to canvass all the returns. Section 13 of chapter 135 of the Laws of 1889 is as follows: “That the board of county commissioners, 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 officio as a canvassing board until such board of commissioners shall have canvassed each and every return of election before them, and shall have declared the result from the face of such returns; and if any board of county commissioners, sitting as a canvassing board, shall fail, neglect, or refuse to canvass any return of any election before said board under any pretense that such return is irregular, or for any other pretense, it shall be lawful for any qualified voter to present his petition under oath to the judge of the district court having jurisdiction, at his chambers, briefly setting forth the facts and circumstances, and praying that such board of commissioners shall be required by writ of mandamus 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 requiring 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 commissioners shall decline to canvass such return 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 proceed to examine said returns, and upon such examination may issue his peremptory writ commanding said board of commissioners to immediately canvass any or all of such returns, and to declare the result.”
.Evidently, the legislature of this territory, profiting by experience, intended to place it within the power of one voter of a county to invoke the aid of the courts to compel canvassing boards, when canvassing election returns, to do their duty, if they either fail, neglect, or refuse to do it. The object of the law is to ascertain the will of all the people as expressed by them by their ballots, even from an unscrupulous or unwilling board of canvassers, and to preserve the rights of the people, individually and collectively, as well as prevent fraud and injury. Canvassing -boards may fail, neglect, or refuse through ignorance; and, upon proper application, the court is required to direct them. Boards of canvassers have a ministerial duty to perform under this law, and that is to canvass “each and every return of election before them, and shall have declared the result from the face of such returns.” This law gives the courts power to see that this duty is performed, and the undoubted right to issue the necessary writs of mandamus compelling- its performance. The record shows that it became necessary to invoke the remedy provided by this law, but that it was unavailing. i
The power of the courts to compel boards of canvassers to do their ministerial duty by canvassing the returns and declaring the results in election cases is-sustained by numerous authorities without the aid of such an explicit law as the law of this territory. In the case of State ex rel. Metcalf v. G-aresche, 65 Mo. 480, the court says: “Having ascertained what was the true return, and that the canvassing officers had failed or refused to count it, thus leaving their legal duty unfulfilled, the peremptory writ commanded its performance. It will thus be seen that the right to determine the specific legal duty of ministerial officers, such as defendants are, necessarily results from the very nature of the proceeding by mandamus. It simply requires the judicial officer to proceed to do his duty. It not only requires the ministerial officer to proceed to do his duty, but it also indicates what his specific duty is. To assert that the writ of mandamus can not require the performance by a ministerial officer of any act which he does not, with the lights before him, conceive it his duty to perform, is to destroy the efficacy of the writ, and to substitute the conscience of the officer for the command of the law.” The supreme court of Wisconsin has decided that a board of canvassers can be compelled to determine, in accordance with law, which one of the candidates at an election in that state for the office of representative in the congress of the United States is entitled to the certificate of election, and that this does not contravene the constitutional power of the house to determine its member’s right to the office; the court merely deciding whether the returns made by such board of votes past in a county should be included in their canvass and statement. State v. Board of Canvassers, 36 Wis. 498. Mr. McCrary, in his work on Elections (section 350), says: “The courts will not undertake to decide upon the right of a party, to hold a seat in the legislature when by the constitution each house is made the judge of the election and qualifications of its own members; but a court may, by mandamus, compel the proper certifying officers to discharge their duties, and arm the parties elected to such legislative body with the credentials necessary to enable them to assert their rights before the proper tribunal. And inasmuch as canvassing, and returning officers act ministerially, and have no power to go behind the returns, or inquire into the legality of votes cast and returned, a court will, by mandamus, compel them to declare and certify the result as shown by the returns, because that is a plain duty; but the award of a certificate of election under such mandate will not conclude the legislative body in determining the election.” O’Ferrall v. Colby, 2 Minn. 180.
These authorities, and many others that might be cited, make clear the duties of these canvassing boards, and the power of the courts to compel them by mandamus to do their duty, and the further fact is shown that such proceeding is not an election contest, nor does it try the title to an office. It simply compels a canvass of the returns, and a declaration of the result as shown by the face of the returns, regardless of who is elected or defeated. The numerous authorities in Illinois and elsewhere to the effect that the courts of equity have no jurisdiction in a case of contested election, and that injunction will not restrain the holding of an election, or try the title to an office, are not applicable here, and will be better understood if the above distinctions are kept in mind. As stated in the casein 78 Ill., there are certain political powers pertaining to the co-ordinate departments of government that are independent of judicial power, and therefore can not be controlled by the courts, which proposition excludes all courts; but the power of the courts may be invoked in aid of political administration to compel the performance of specific legal duties. Wherever, therefore, the door is open to judicial supervision, then all of the power of the courts necessary to make the remedy effectual is available. If equity is necessary to uphold the common law, it has a clear right to act by reason of the ancillary character of its functions. Under the statute of the territory above referred to, there can be no doubt of the power and jurisdiction of the court in the mandamus proceeding, nor can there be any reasonable doubt as to the fact hat the legislature, in passing that act, intended to compel county commissioners, when sitting as a canvassing board, to declare the true result of an election from the face of all the returns, and that the judge of the proper district court, if called upon as provided by the law, should compel it to be done in case of failure, neglect, or refusal. It is clear, also, that such board is prohibited from canvassing less than all of the returns, and that they are forbidden to certify to false results, based upon a canvass of part of the returns. Therefore, if the law is obeyed by canvassers, all parties will secure the rights to which they were entitled by the result of any such election.
It was urged in argument on behalf of the petitioners that the court had no power to control the discretion of petitioners when they were acting as canvassers of election returns; but an examination of the statute shows that they had no discretionary powers. The statute commanded them to canvass all of the returns, and declare the result from the face of the returns; therefore the argument fails to point out a want of power in the court in this respect. Counsel for petitioners also contend that petitioners are answer-able alone to their consciences and their constituents for failure or refusal to properly discharge their duties as such canvassing officers; but this contention is conclusively answered by the statute on the subject, and need not be further noticed. Sadly defective, indeed, would be a law which placed the rights and interests of the people of a county in the hands of (it might be) an irresponsible and unscrupulous board of canvassers, who were accountable only to their consciences and constituents. Fortunately, the law of this territory is not thus defective. Jurisdiction in regard to election matters having been specifically conferred upon the courts of this territory, it is difficult to see how the case of Dickey et al. v. Reed et al. 78 Ill., becomes authority in this case; for in that case it was held that jurisdiction had not been conferred, and therefore the process was void. The failure to exercise the power conferred does not destroy the power. That is clearly shown by the case of Neiser v. Thomas et al., 12 S. W. Rep. 725, in which the court refuse to take jurisdiction, but say that they do not wish it to be understood that they would not exercise jurisdiction, even in an election case, upon the presentation of a proper case. That was an injunction case, but was really an attempt to contest an election, and sought to have Mr. Thomas’ right to the office of city marshal of St. Louis set aside on the ground that he was disqualified. To determine this question, evidence must be heard; ahxl hence it was simply an attempt to try a contested election case in an equity court, and jurisdiction was properly declined. If we accept the view of the Illinois case contended for by counsel for petitioners, — that canvassing boards, in election matters, are an independent and coordinate political power, absolutely free from the jurisdiction of the courts, — what means this array of decisions of able courts, both of law and equity, in which they have taken and exercised jurisdiction in election cases, and especially as to canvassing boards? It seems to us that the contention is erroneous and that the Illinois court declined jurisdiction under the law of that particular state as applied to the case presented to the court. The fact that some courts exercise jurisdiction in election cases, while others do not, serves to prove that the courts await the presentation of a proper ease before attempting to exercise an existing power; and, further, that while there are election cases of which the courts of equity will refuse to take jurisdiction, owing to the particular phase of the case presented, still there are very many phases of election cases of which courts both of law and equity will take and exercise jurisdiction. Numerous cases are reported showing the power of the. courts over canvassing boards, and onr statute gives tbe courts comprehensive jurisdiction over them.
This brings us to the consideration of the injunction proceeding in the light of what has been said. The bill alleged, in substance, that at the election held in Santa Fe county, November 4, A. D. 1890, Benjamin M. Read and Joseph B. Mayo were each candidates for the office of member of the house of representatives of the legislative assembly of New Mexico, and that Thomas B. Catron was a candidate for member of the council of said legislative assembly; that they were voted for at said election, and that the returns showed that they had received a majority of the votes cast at said election for such offices; that petitioners and one George L. Wyllys were the commissioners of Sarita Fe county, and were by law required to canvass the returns of said election within six days after the election, declare the result, and forward certificates of election to those having received a majority of the votes cast; that, the said board had assembled, but that they had failed, neglected, and refused to count the returns from precincts 1, 2, 8, 11, and 16 of said county, although the returns from these precincts were before the board in regular and perfect condition; that the failure of the board to count the returns from those precincts would materially affect the result by showing that other persons than complainants were elected, when, in fact, complainants had received a majority of the votes cast; that said commissioners had threatened to declare the result from a partial canvass, and issue certificates to others than complainants for said offices; that, if such certificates were issued, great and irreparable damage will be the result to complainants and the public generally; that it may, and probably will, result in causing numerous suits and expensive and vexatious litigation; that complainants will institute mandamus proceedings to compel the board to canvass all of the returns, but that before such proceedings can be made effective the board will issue, or cause to be issued, such fraudulent certificates. IJpon this bill a writ of injunction issued, as above set out. This bill brought to the court’s attention a case where a board of canvassers had refused to obey the law, and not only that, but that they were about to do a plainly illegal act, and perpetrate a fraud, liable to cause a multiplicity of suits and great injury, which could still be prevented by the prompt action of the court. The court was bound to know the law, and that the act about to be committed was plainly illegal and fraudulent. The bill alleged that the canvassers had refused to canvass the returns from five precincts, although the returns were before them in “regular and perfect condition;” and the court was bound to know that the law commanded this board to canvass all of the returns, and .declare the result from a canvass of all the returns, and that it was an illegal act to issue certificates of a result declared from a canvass of part of the returns! While county commissioners have large discretionary powers, this canvassing board had no discretion whatever, under the law as to that particular matter. They had a specific duty to perform. They had refused to perform it, and were about to declare a false result, and issue certificates, the legal effect of which the court was bound to know. Referring to the law of this territory on this subject, we can not refrain from commending the wisdom of the legislature in enacting it. It strikes directly at the cause of the vexatious litigation and disorder, — the discretionary powers of canvassing boards. This law provides that the county commissioners, when sitting as a canvassing board for the purpose of canvassing the returns of any election held in this territory, shall not adjourn or become functus officio as a canvassing board until they “shall have canvassed each and every return of election before them, and shall have declared the result from the face of such returns.” The will of all the voters as shown by the returns must be declared by the canvassing board. In case of a candidate for office, he has a legal right to this declaration; and if, by this declaration, a candidate has received a majority of the votes, the certificate must be issued to him, and it is an illegal act to deprive him of this evidence of his title to office. As was said in O’Ferrall v. Colby, 2 Minn. 180: “ But a court may, by mandamus, compel the proper certifying officers to discharge their duties, and arm the parties elected to such legislative body with the credentials necessary to enable them to assert their rights before the proper tribunals.” This does not necessarily give the candidate the office — indeed, he may never obtain it; but he has a right to have what the law gives him from the canvassing board. The record shows that the mandamus proceeding was before the court at the time this bill for injunction was presented, as it bears an earlier number upon the docket; hence the court was informed that it might become the duty of the court to compel the board to declare a different result from that upon which the board was about to issue certificates, so that the court, by refusing to restrain the issuance of illegal certificates, would practically become a party to the transaction. It was the plain duty of the court, and it had full power to prevent certificates from being issued until such time as, by the remedy pointed out by the statute, it could be definitely ascertained what the result of the election was, and to whom certificates should be issued by the board. The bill in this case sought to restrain the doing of a fraudulent act. It sought to prevent vexatious and expensive litigation, and it pointed out the necessity for prompt relief. But it is urged that there is want of jurisdiction, because there was a remedy at law. That there is a remedy at law is not sufficient. It must be an adequate remedy. Under the law of this territory, the remedy at law was not an adequate remedy in this case. If this had been a bill to contest an election, or try the title to an office, there would be force in the contention; but it is not a case of that kind. The law of this territory clothes the courts expressly with full power, when properly called upon by a taxpayer of the proper county, to grant the writ of mandamus, both alternative and peremptory, to compel canvassing boards to do their duty, if they fail, neglect, or refuse to do it. That duty is to canvass each and every return before them, declare the result from the face of the returns, and, under section 1193, they must issue certificates to the persons having the greatest number of votes for the particular office. In other words, the canvassing board must give to the person receiving the greatest number of votes (at an election for officers), after they have ascertained from an honest canvass of all the returns, the certificate which is prima facie evidence of his title to the office, and it also secures to the people an honest expression of their will. Any other canvass, or the issuing of any other certificate, would be a gross fraud upon both the person voted for and the people. But for the intervention of equity in such a case as this, prima facie evidence of title to the same office may be given to more than one person by unscrupulous officials, and if so the very purpose of the law would be defeated. As the law applies equally to all election returns, it follows that the rights acquired by a candidate for election to office at an election in this territory are to be preserved from.their inception, and the right of a person elected to office in this territory is to have the legal evidence of that right which the canvassing board are required by law to give him, and, further, that such legal evidence of right to the office shall not be given to another. The policy .of the law is to deprive canvassing boards of their power to do harm, such as the bill shows was about to be done. The court in South Carolina, in the case of Grier v. Shackleford, 3 Brev. 491, speaking of the duty of election managers: “ It is not to be believed that the legislature intended to hang the most important rights of the citizen on the arbitrary decision of such a tribunal. If they are to range through all the vagaries of their capricious fancies, the elective franchise will become an idle mockery.”
Is it an adequate remedy for a candidate, having received the greatest number of votes, to be compelled to contest before the legislature a defeated candidate, having prima facie evidence of title to the office given him in violation of law? Plainly, it is not. The law commands the board, and, if they refuse, the court must compel the board, to give the successful candidate prima facie evidence of his right to the office, and it is for the defeated candidate to resort to quo warranto or contest, as the case maybe. These remedies maybe adequate for the defeated candidate, but they are not for the successful candidate. The legislature of a territory is limited in its sessions to sixty days, and compensation is paid to the sitting member. Suppose a board of canvassers gives a certificate of election to a defeated candidate; he presents it, and takes his seat; contest is brought by a successful candidate, but by delay it is not decided prior to adjournment. Where is the remedy for the candidate who was actually elected? Evidently, such is not an adequate remedy. If the board of canvassers do their duty, the successful candidate will receive prima facie evidence of his right to the office. If the unsuccessful candidate desires to question the result, he may resort to the appropriate remedy, go behind the returns, and then the case has reached what is regarded in law as a “ contested election case.” “Except in eases of special injunction to stay waste or prevent other irreparable injury, the bill should generally show some primary equity in aid of which the injunction is asked, and the relief is granted as ancillary to or in support of the primary equity whose enforcement is thus sought.” Patterson v. Miller, 4 Jones Eq. 451; Washington v. Emery, Id. 29. ‘‘And it is incumbent upon, the party seeking relief by interlocutory injunction to show some fair legal or equitable rights, and a well grounded apprehension of immediate injury to those rights.” High Inj., sec. 7. “ Where, however, the parties are at issue upon a question of legal right, and it is necessary to preserve their rights in statu quo until the determination of the controversy, an interlocutory injunction may properly be allowed.” Harman v. Jones, Craig & P. 299. In such cases courts of equity do not assume jurisdiction to dispose of the legal rights in the controversy, but confine themselves to protecting those rights as they are, pending an adjudication upon the legal questions involved. In Kerr et al. v. Trego et al., 47 Pa. St. 292, involving elections and offices in the city of Philadelphia,.the supreme court granted an injunction, and said: “ The remedy by injunction extends to all acts that are contrary to law, and prejudicial to the interests of the community, and for which there is no adequate remedy at law.” The supreme court of Illinois, which decided the case of Dickey et al. v. Peed et al. has frequently granted injunctions in county seat election cases, holding that, while they had no statutory authority, the authority was implied by the constitution.
If there could still be any doubt of the power of the court of equity over the subject-matter of this injunction proceeding, we think it is at rest by virtue of another statute of this territory, which took effect on the same day the former statute referred to took effect. Section 1, chapter 117, Laws, 1889, is as follows: “That suits in equity may be begun, injunctions granted, or receivers appointed in aid of any suit at law, whether the same has been prosecuted to a judgment or not; provided, that such suit at law has been begun at the time any such equitable relief is sought.” It is objected that the mandamus proceeding was not a suit at law; but, while in a strict sense it is not an action at law, we are of the opinion that the term “suit at law” is used in its broadest sense, and that it was intended to' authorize the aid of equity whenever it was necessary in order to give a more complete and effectual remedy in any pending legal proceeding. The word “suit” is a very comprehensive term. As used in the judiciary act, 1789, section 25, it was construed to mean '“any proceeding in a court of justice in which the plaintiff pursues to such court the remedy which the law affords him.” “An application for a prohibition is a suit.” 2 Pet. 449. “In its most extended sense, the word ‘suit’ includes not only a civil action, but also a criminal action.” Story. Const., section 1719; 1 Chit. Pl. 399. “ ‘Suit’ applies to proceedings in chancery, as well as law” (1 Smith Ch. Pr.); “and is, therefore, more general than ‘action,’ which is almost exclusively applied to actions at law” (Didier v. Davison, 20 Paige, 516). The term as used in the statute is to be construed in its comprehensive sense, and comprehends proceedings ancillary to the remedy by mandamus, as authorized by section 13, chapter 133, Laws, 1889. The injunction proceeding is in aid of the mandamus, as shown by the record, and, indeed, each refers to the other, and the nature of the remedy sought shows the ancillary character of the proceedings. Can it be contended that a court possessing enlarged jurisdiction, both at law and in equity, will decline to stay an illegal act, and preserve the statu quo until equal and exact justice can be done? We think not, and therefore hold that upon the case presented the court had complete jurisdiction of the subject-matter and of the person, and properly-granted the temporary injunction prayed for. That the command of the writ was disobeyed by the petitioners is not denied by them, and the record also shows the violation of the injunction by setting out in full the certificates which the court had restrained them from issuing. If the court had jurisdiction of the person and subject-matter — which we have already answered in the affirmative— it follows that the action of the petitioners in disobeying the order of the court was contempt, for which they were liable to punishment. They were properly brought before the court by attachment and punished by fine, and committed to the county jail until the fine and costs were paid.
uiarity m assess-It is objected by counsel for petitioners that the court exceeded its authority in the matter of punishment, inasmuch, as four different fines were assessed of $50 each for four distinct offenses in one proceeding. The record shows that these fines were assessed separately, and there being no doubt of the inherent power of the court to punish, as well as by virtue of the statute, there can be no doubt of the legality of the first fine of $50. But the fact that more fines were assessed would not make the entire punishment void. The petitioners are liable to be held for the valid fine. It is a mere irregularity, that does not warrant discharge on habeas corpus. Errors or irregularities are curable in the court from which the process issued, or by appeal; not on habeas corpus. Church Hab. Corp., sections 344, 363, and cases cited. The supreme court of the District of Columbia, in a case where three sentences had been imposed, says: “The relator appears to be imprisoned for three several terms of one hundred and eighty days each, without any specification as to the time of beginning or ending of the last two terms of imprisonment. The sentences pronounced by the court do not provide that the periods of imprisonment under these convictions are to commence at any future period, or after the expiration of the period mentioned in the former judgment. This omission is fatal to any imprisonment which exceeds that of a single sentence.” There is nothing before this court to show that either of the petitioners moved the court to remit the fines, or that payment of either of the fines has been made; hence the punishment is not a matter for our consideration. The petitioners were committed to jail until the fine was paid, and properly so. The commitment is not a separate punishment; it is simply an incident to it. In the case of Fischer v. Hayes, 6 Fed. Rep. 63, the court said: “It is in this view that it has always been held that where the statute authorizes or prescribes the infliction of a fine as a punishment, either for a contempt of court or for a defined offense, it is lawful for the court inflicting the fine to direct that the parties stand committed until the fine be paid, although there be no specific affirmative grant of power in the statute to make such direction.” It is not necessary in this case, nor does the court intend, to construe section 665, Compiled Laws, with a view of determining the power of the legislature to limit the courts in assessing a fine for contempt, nor whether the fine provided for would be the extent of punishment. The court observed the limit of the statute in assessing the fine for each contempt; and, while assessing fines in the same action for four distinct contempts may be irregular except as to the first, as the fines were separate it can not avail the petitioners prior to the payment of the valid fine and costs.
jurisdiction in vacalI°1'' The objection of want of jurisdiction in vacation is not well taken. By section 1829, Compiled Laws, the courts of this territory are always open, and their jurisdiction is comprehensive enough to include proceedings in contempt. The prayer of the writ of habeas corpus will be denied, and the petitioners will be remanded to the custody of the officer.
Fpeeman and Lee, JJ., concur.