Fall, J.
These cases present for our consideration several important questions, common to both, as to the power of this coui’t to issue the writ, while radically differing in respect to the issues involved upon the merits and as to the officers' and courts to which the writs are directed. In, 558, W. P. Cunningham, petitioner, relates that he is the duly appointed, qualified, and acting sheriff of Santa Fe county; that without warrant of law the board of county commissioners of said county are proceeding to oust him from said office, the said board possessing no jurisdiction in the premises, by reason of the repeal of the territorial statute under which they claim to be acting. The petition was presented to Associate Justice Needham O. Collier, and the writ issued, returnable to this regular term. In 561, the Lincoln-Lucky & Lee Mining Company applied for a writ from Associate Justice Albert B. Fall, to restrain the district court of the First judicial district, sitting for the trial of causes arising under the laws of the United States, from proceeding with the trial of a certain cause upon said docket, petitioners relating that said cause originated in the court sitting in Santa Fe county for the trial of causes arising under the laws of the' territory of New Mexico, and upon application of each party thereto, .having been changed from one county to another of said district, was finally by order of Associate Justice Edwand P. Seeds, under section 3 of chapter 77 of the Acts of the Territorial Legislature of 1889, changed to said district court sitting for the trial of causes arising under the laws of the United States within said First district aforesaid. Said writ was issued as prayed for, returnable to this regular term. The writs were issued under section 2006 of the Compiled Laws of the Territory of 1884, which is as follows: ‘‘2006. Writs of prohibition shall only be issued'out of the supreme court and shall be applied for upon affidavit, by motion to the court or a judge thereof in vacation, and if the cause shown appears to the court or judge to be sufficient a writ shall be thereupon issued, which shall command the court and party, or officer to whom it is directed, to desist and refrain from any other proceedings in the action or matter specified therein, until the next term of said supreme court, or the further order of the court thereon; and to show cause at the next term of said court, or some day t'o be named in the same term at the option of the court, if issued in term time, why they should not be absolutely restrained from any further proceedings in such action or matter.” No return whatsoever was made to either of said writs, but due hearing was had here, as though the allegations in the respective petitions had been traversed by a regular return to the writ; T. B. Catron and Solicitor (General Bartlett being granted leave, upon their application, to act as amici curiae for the purpose of presenting the respondents’ side of the question; Messrs. H. L. Warren .and Francis Downs appearing for relators. The objections submitted by the amici curiae are: (1) Has this court the power to issue the writ of prohibition? (2) If so, can the preliminary writ be issued by an associate justice in vacation? (3) Granting the power to issue the writ, would it go either to the district court or to the board of county commissioners? (4) Granting the power to issue, and that it would properly issue to the courts or officers in this instance, was the writ providently issued?
Wtion:°Pfowe?obf' supreme court to issue: validity of sec. 2006, Cc>mp.Laws, Upon the first of these propositions numerous authorities are quoted, and before answering the objection it will be necessary for us to consider the history of the writ both at the common - _ _ - and under statutory law, as well as, and , . . together with, the organization of this court under acts of congress creating the same and fixing the power of the territorial legislature to legislate for the courts of this territory. “The injury which is that of an encroachment of jurisdiction, or calling one ‘coram non judice’ to answer in a court that has no legal cognizance of the cause, is also a grievance for which the common law has provided a remedy by the writ of prohibition.” Bl. Com., bk. 3, p. 112. Originally, or at least properly, this writ, being the king’s prerogative, issued only out of the court of king’s bench, the supreme court of common law, the legitimate successor of the “Aula Begis.” This court possessed jurisdiction to keep all inferior jurisdictions within the bounds of their authority, to superintend all civil corporations, to command magistrates and others to do what their duty requires, to protect the liberty of the subject by speedy and summary interposition, and to take cognizance of both civil and criminal causes, as also to hear appeals from all determinations of the court of common pleas and of all inferior courts of record. Afterward the writ issued out of the court of common pleas or common bench, the court of exchequer, and the chancery court, — the first inferior to the court of king’s bench, and with jurisdiction in real actions and “all other pleas between man and man,” both original and appellate; the second (the exchequer) inferior to both the king’s bench and common bench, originally only possessing jurisdiction to adjust and review the king’s revenue, “but now, by a fiction, with jurisdiction in all kinds of personal actions.” See Id. 3, p. 110, et seq. The writ also issued out of the courts of law in Chester, to the spiritual court there, although the king’s bench or common bench could issue the writ to the same court; also from the court of great sessions in Wales to the spiritual court. See 8 Bac. Abr., p. 227, et seq.; 7 Com. Dig., p. 137, et seq.; 17 Vin. Abr., p. 547; 14 Petersd. Abr., p. 61. This writ “issues out of the superior courts of the common law to restrain inferior courts, whether such courts be temporal, ecclesiastical, military or maritime. ■ * * * Prohibitions do not import that the ecclesiastical or other inferior courts are alia than the king’s courts, but signify that the cause is drawn ad aliud examen than it ought to be.” 14 Petersd. Abr., p. 61. “The king’s superior courts of Westminster have a superintendeney over all inferior courts, of what nature soever.” 8 Bac. Abr., p. 227. “The superior courts of Westminster grant prohibitions to inferior courts where the latter assume jurisdiction belonging to another inferior tribunal.” Id., p. 229; 14 Petersd. Abr., p. 65. Thus we see that these courts, i. e., the courts of Westminster, king’s bench, common bench, and exchequer, had a superintendeney over other courts of common law, as well as ecclesiastical, military, etc.; second, that these courts issued the writ both when they claimed jurisdiction of the question themselves, and also when the court to which it was issued had no jurisdiction, while another inferior court possessed it.
Great conflict of opinion has arisen as to whether the power to issue the writ of prohibition, when the same was possessed beyond question, arose from the original jurisdiction of the court or from its superintending, appellate, controlling power; but, so far as we of this court are concerned, the question has been settled beyond cavil. “To control in this manner the proceedings of these tribunals [courts appointed under the- authority of the United States] is but the exercise of appellate power.” Conk. Pr., p. 48. “The judicial power is abstract or relative. In the latter power it superintends and controls the conduct of other tribunals by a prohibitory or mandatory interposition.” U. S. v. Peters, 3 Dall. 123. The constitution in absolute terms limits the original jurisdiction of the United States supreme court — first, to cases affecting ambassadors or other public ministers and consuls.; and, second, to causes in which a state shall be a party; but it also declares that it shall have “appellate jurisdiction both as to law and fact.” * * * Section 688 of the judiciary act gives to the supreme court power to issue writs of prohibition to the district courts of the United States in maritime and admiralty cases. This, were it an attempt to confer an abstract power, might be in conflict with the constitution, but, as conferring a relative power to a superintending, controlling, appellate court, is constitutional. Section 1907, Revised Statutes, United States, provides that: “The judicial power, in New Mexico * * * shall be vested in a supreme court, district courts, probate courts, and in justices of the peace.” Section 1869 provides that: “Writs of error, bills of exceptions and appeals shall be allowed, in all cases, from the final decisions of the district courts to the supreme courts of all the territories respectively.” * * * Section 1864 provides that: “The jurisdiction, both appellate and original, of the courts provided for in section 1907 * * * shall be limited by law.” Section 1851: “The legislative power of every territory shall extend to all rightful subjects of legislation not inconsistent with the constitution and laws of the United States,” etc. Section 1912: “The supreme and district courts of each territory, and the respective judges thereof except for Idaho and Montana, may grant writs of habeas corpus in all eases in which the same are grantable by the judges of the United States in the District of Columbia.” Section 1868: “The supreme court and the district courts respectively of every territory shall possess chancery as well as common law jurisdiction.” The acts of congress stand to us as a constitution. Our legislature can no more infringe upon a congressional enactment applicable to this territory than could the congress of the United States enact a valid law in conflict with the constitution. We have, however, here a system of courts provided for, with power delegated to the territorial legislature, as has been decided again and again, to put these courts in motion, and to prescribe rules of practice and decision, etc., not in conflict with the organic act or acts of .congress. We have a supreme court with controlling appellate, superintending power, and with both common law and chancery jurisdiction conferred by a grant as solemn as would be the article of a state constitution. But it is claimed that the permission given in section 1912 (infra) to this court to grant writs of habeas corpus is a restrictive grant of original jurisdiction, and must be construed to prohibit the exercise of original jurisdiction in any other cause or proceeding. Territory v. Ortiz, 1 N. M. 12, would seem to sustain this contention, but would it not appear that the intention of congress was rather to prevent any territorial legislation which might deprive this court of the power to issue the writ than to limit its original power to habeas corpus alone? Again, it would be a reductio ad absurdum if we followed this argument to its natural conclusion and decided that the original jurisdiction of district courts of .the territory was to be limited to these writs. Yet the permission to issue writs of habeas corpus is given to the’supreme court and judges and the district court and judges in the same section and by the same words. We think that the eminent counsel who have so ably discharged their duty as amici curiae have confounded the abstract and relative powers of the judiciary, and that the act of the territorial legislature (section 2006) is no more in conflict with the acts of congress relative to our courts than is section 688 of the judiciary act in conflict with article 3 of the constitution; indeed, not so much so, because, by the constitutional provision referred to, the original jurisdiction of the supreme court of the United States is limited in terms; here the only limitation claimed is by implication. We might go further, and consider the question as to whether the inherent power of this, as an appellate court of common law and chancery jurisdiction, would not extend to the issuing of prohibitory and mandatory writs; but this is unnecessary. See, however, Reese v. Lawless, 4 Bibb (Ky.), 394. As to this objection, we will only cite, further, Clough v. Curtis, 134 U. S. 363.
issuance of prepiohibiTiminbyof coulf¿vSiSi! As to the second proposition, it follows from our decision as to the first that, the legislature having power to provide for the issuing of-the writ, it certainly has power, unless conflicting with an act of congress, to prescribe the rules for its issuance. It is contended that the act of congress establishing the Fifth judicial district, and providing that three of the judges of the supreme court should constitute a quorum, is such an inhibition. We find that under the law as laid down in all the old writers the court of chancery might award a writ of prohibition in vacation. Petersd. Abr., p. 65. The question might be a much more serious one if these were causes in which it was admitted that the courts, or court and board, had jurisdiction originally of the respective causes sought to be prohibited, and that the writ was asked to restrain their then proceeding without their jurisdiction. But the whole contention here is the want of original jurisdiction, and in such a case the issuing of the preliminary writ is even more in the nature of a ministerial act. It could not be contended that a person can be deprived of his property but by due process of law, and yet we see, every day, judges of this court, upon ex parte applications showing a prima facie case, issuing temporary restraining orders, as injunctions, which, for the time, have exactly the effect of depriving the owner of the use of his property, etc. The writ in these cases did no more, nor sought to do more, than prevent a court, which it was claimed possessed no jurisdiction, from acting, leaving the parties in statu quo, notin any manner disturbing their relations, but, on the other hand, perserving them until the matter could be heard on the merits. See Sharp v. Weeks, 93 Mo. 499.
plea to jurisdiccouit0nÓtnnee”essary, when. issuance of writ distrfc^comr;to cOTtrofofsuÑ premecourt. We will now consider the third proposition, and the task has been somewhat lightened by what has already been said in discussing the first and second. It is contended that the district courts of this territory are not courts of inferior jurisdiction, and that the writ, under Smith v. Whitney, 116 U. S. 167, will not issue to them, — this in cause 561. It is further objected that the writ will not issue in number 558 — First, because the board of county commissioners is not a judicial body; and, second, because no objection was taken below to the exercise of jurisdiction by the board. As to the last, we can not consider that matter h©r©- No return has been made to the writ, and this hearing is had upon the petition aio:ae^ js entirely informal, and not had as a matter of right, but merely as an accommodation to the worthy amici curiae who appeared below, it seems, for parties interested, and as settling the law and practice. We may say, however, that it is only necessary to plead to the jurisdiction below as a foundation for the writ where the lower court had jurisdiction of the original subject-matter. See U. S. v. Peters, 3 Dall, 123; Miller, Const. 427; In re Cooper, 138 U. S. 404; 14 Petersd. Abr., p. 78. To go back to the law of England, we find that the writ will issue to the court of chancery of Chester, to the court of the. marches of Wales, to the grand sessions of Wales, and in fact to. any inferior court, by usurpation without lawful authority (7 Com. Dig. 137, 138); also to the'court of exchequer, anq to the court of common bench; in fact, to any but the great court of king’s bench; and to ■common bench it goes to the judges (Id. 139; 17 Vin. Abr., p. 547). The writ goes from the supreme to the district courts of the United States. Rev. Stat., sec. 688. And our district courts have the same jurisdiction as these last. Id., sec. 1868. Being an exercise of the relative judiciary power, the superintending, appellate power, it also goes from the supreme court of the United States to the district court for the territory of Alaska, although the statute only directs it to the district courts of the United States. In re Cooper, 138 U. S. 404. The contention that our district courts are not inferior courts is well founded in the technical sense in which this term is used; but, bearing in mind the distinction between the “abstract” (“apart or separate from something else”) power of the judiciary and the “relative” (“having reference to,” “not absolute or existing by itself”) power, we can then see that in the sense in which the term “inferior” is applied to courts to which the writ of prohibition will issue it is meant to convey the meaning of “relatively inferior.” The district courts of the United States are not technically “inferior” courts, and yet their attempted exercise of power without their jurisdiction can be prohibited by a court to which they are relatively inferior. The supreme court of this territory is a controlling, superintending, appellate court. Rev. Stat., sec. 1869. Our district courts are not technically “inferior” courts, but are relatively inferior to this superintending tribunal, and in the exercise of its “relative” power this court can properly issue the writ to them. See Clough v. Curtis, 134 U. S. 361.
_ , . premecSSrt ?o' otsh¿Tssodaatr ^stice. power of supreme ?s°sue wrdiftoto judicialtritnfnai. It is strenuously argued that section 2006 of the Compiled Laws of New Mexico, conferring upon an associate justice of the supreme court power to issue the writ to another associate justice, his equal in power, is an unwarranted interference, subject to abuse, and might be carried to such an extent as to paralyze the business of the courts. The writ issues out of the supreme court ag 0^01, writs issue from this tribunal, and is directed to a relatively inferior court. The same argument might be made with reference to the writ of injunction, the writ of mandamus, etc., out of the district courts. In fact, it would equally apply to any extraordinary writ or remedy as a reason why extraordinary writs should never be issued. But we must bear in mind that the writ acts only as preservative of" the status quo, and is not finally disposed of until term time, and by a quorum of the full bench in open court. It might be best to provide by legislation that the writ should only issue out of the court in term time, but the legislature evidently had in mind that only one term of this court is held in twelve months, and that grave injury might result from delay. By the terms of our statute, there is no attempt to exclude any court whatsoever from the operation of the writ. This statute, then, is not only constitutional, but operative in its broad sense, and the writ will go to a district court under our relative superintending, appellate power. The objection to the issuing of the writ to the board because not a judicial body or tribunal appears not to be insisted upon. We may say, however, that the record in this case — i. e., the petition and order — show that the board of county commissioners had cited Sheriff Cunningham to appear before them and show cause why he should not be removed. Undoubtedly they supposed themselves to be acting as a quasi judicial tribunal at least, and under the citation they were undoubtedly -so attempting to • act. The law is well settled that the writ will issue to a board or officer exercising judicial or quasi judicial functions. High, Extr. Rem., secs. 769, 782.
issue of preiimiproSibSon°by single judges of supreme court in vacation to district court, and board of county commissioners, We will next consider the question as to whether the writs issued providently. There being no return to the writ in either case, it wouid not be necessary to dwell upon this question in arriving at a conclusion in the causes, but we are desirous that the law, as we understand it, shall be settled definitely. It is settled at common law as well as by our statute that the writ will issue directly to thé l sa iij.it court or officer, and where the sole ques- . p . tion is, as here, the want ot original rnris- ' ' cj u ¿fiction in the court or officer, we do not think it necessary to make the parties to the original proceeding parties to the writ. Id., 768, '774. Section 1865, Revised Statutes, United States, provides: “Every territory shall be divided into three judicial districts ; and a district court shall be held in each district of the territory by one of the justices of the supreme court, and at such time and place as maybe prescribed by law,77 etc. Section 1874: “The judges of the supreme court of each territory are authorized to hold courts 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;77 and proceeds to provide that the expenses of holding such courts shall be borne by the territory or by the counties, etc. Section 1851, as heretofore seen, provides that the legislative power of the territory shall extend to all rightful subjects of. legislation not inconsistent with the constitution and laws of the United States; section 1864 that the jurisdiction of the courts mentioned in section 1907 (supreme, district, probate, and justices of the peace) shall be as limited by law; and section 1910, that each of the district courts shall have and exercise the same jurisdiction as district and circuit courts of the United States in all cases arising under the constitution and laws of the United States. Section 1874, Revised Statutes, was passed June 14, 1858. Up to this time the courts provided for in section 1907 (organic act) exercised jurisdiction in causes arising under the laws of the United States and under the laws of the territory, the two jurisdictions being, as it were, concurrent, or at least exercised by the same court. In January, 1859, the legislature of the territory, under the power delegated to it by said section 1874, Revised Statutes, provided for separate courts to be held in the counties for the trial of causes arising under the laws of the territory (chapter 6, Sess. Acts, 1859), and by chapter 10, same acts, under the title, “An act relative to practice in the district courts,” „ remanded from the district courts of the several judicial districts to the district courts for the counties the causes not pending in said judicial district courts under the laws of the United' States. By chapter 19 a jury law was enacted for the county district courts. ■ By chapter 25, approved February 3, 1859, the time for holding said county district courts was fixed. Thus we see that at the first session of the territorial legislature after the passage of the act of June -14, 1858, advantage was taken of the provisions of the latter, and the jurisdiction of the district courts of the territory separated, to remain separate through all subsequent legislation; the courts for the trial of causes under the laws of the United States being designated as “judicial district courts,” and those for the trial of causes under the laws of the territory being called “district courts for the counties.” Distinct juries were provided for; the office of clerk of the United States side and clerk of the territorial side distinguished by provisions for the pay of the latter, etc.; the sheriff acting as officer of the court in the one, the marshal in the other; writs in the one running in the name of the United States and in the other in-the name of the territory; in fact, the machinery of the. courts differs in its construction, and is operated by distinct forces, except, that both are presided over in the respective judicial districts by the one judge of each. It will not be questioned that congress, instead of giving permission to the territorial legislature to establish these courts, could have established them directly. If the latter had been the course pursued, would not any court in the land have construed the intention of congress to have been to create county courts, and confer upon them jurisdiction in territorial causes, leaving to the three, or, as we have it now, five, district courts, the jurisdiction to try causes arising under the laws of the United States, separating the jurisdictions?
This, as we construe it, is the decision of the United States supreme court in Ex parte Bradley, 7 Wall. 371, where that court declared the act of July 7, 1838, establishing a criminal court in the District of Columbia, to have divested the circuit court of the district of its criminal jurisdiction. It is the rule that the jurisdiction of superior courts will not be taken away by statute, except by direct words or by necessary implication; but it has been repeatedly declared in the construction of statutes that every statute is by implication a repeal of all prior statutes, so far as it is contrary and repugnant thereto. Sedg. St. Const., p. 104. “So, on the same principle, a statute is impliedly repealed by a subsequent one revising the whole subject-matter of the first.” Section 1874, Revised Statutes, did not “revise” the whole subject-matter of the former sections providing for district courts, conferring upon them the jurisdiction in United States cases as that of district and circuit courts of the United States, and declaring that the first six days of the term should be devoted to United States business; but it did “revise” the whole subject-matter of the act óf 1850 with reference to the place and tribunal for trial of territorial cases, subject only to the putting of the machinery in motion by the territorial legislature, which, as we have seen, was done at once, and has been adhered .to from January 20, 1859, to the present day. Clearly, the intention of congress evinced by the passage of section 1874, Revised Statutes, was to provide for the creation of courts in the territory which should, have jurisdiction in causes arising under the laws of the territory, as we have said before, and, these courts having been put in motion, by necessary implication the jurisdiction to try such causes was taken from the judicial district courts and conferred upon the “district courts for the counties.” By operation of law, jurisdiction in these territorial causes passed from the former to the latter courts, and so long as these courts remain as at present constituted the jurisdiction of each is limited to its own particular business as established by statute, and these jurisdictions are in no sense concurrent, except as is the jurisdiction of state courts and district and circuit courts of the United States within the state. See 12 Am. and Eng. Encyclopedia Law, p. 304, note 1.
The acts of congress relative to this territory stand as our constitution. The act of the legislature in creating the district courts for the counties and giving them exclusive jurisdiction in territorial causes is simply the putting in force of this fundamental constitutional law. Ponder v. Graham, 4 Fla. 23; In re Church, 92 N. Y. 1. In Leitensdorfer v. Webb, 20 How. 182, which went up from this territory, upon the construction of the organic act of 1850, Mr. Justice Daniel, delivering the opinion, says: “It was undoubtedly within the competency of congress either to define directly by their own act the jurisdiction of the courts created by_ them, or to delegate the authority requisite for that purpose to the territorial government, and by either proceeding to permit or to deny the transfer of any legitimate power .or jurisdiction previously exercised by the courts of the provisional government to the tribunals' of the government they were about to substitute for the territory, in lieu of the temporary or provisional government.7 ’ Certainly the same power extended to the divesting from the courts of the act of 1850 and the conferring upon the courts by the act of 1858 exclusive jurisdiction in territorial causes, and, this having been done, we think that any attempt to revest the former courts, now courts solely of federal jurisdiction, with powers to try territorial causes, the act of 1858 being in full operation, is an attempt to confer an abstract jurisdiction upon the former which could not be sustained as a proper exercise of legislative power. Ferris v. Hihley, 20 Wall. 375. Indeed, prior to the passage of the act of 1858, the business — i. e., the territorial and. United States business — of the courts of 1850 had been regarded by the supreme court of the United States as separate. See Snow v. U. S., 18 Wall. 322. This court recognized the distinction in Territory v. Yarberry, 2 N. M. 450, although the construction of the statute of 1858 was not considered. In Ex parte Crow Dog, 109 U. S. 560, Mr. Justice Matthews, speaking of the district courts of Dakota (the jurisdiction, territorial and United States, not having been separated by act of territorial legislation), says: “The district court has two distinct jurisdictions. As a territorial court, it administers-the local law of the territorial government; as invested by act of congress with -jurisdiction to administer the laws of the United States, it has all the authority of circuit and district courts of the United States.” Even in Clinton v. Englebrecht, 13 Wall., the distinction in the two jurisdictions is recognized. Again, in Hornbuckle v. Toombs, 18 Wall. 656, the two distinct jurisdictions are recognized, and the fact that a portion of the term, 'where the jurisdictions are exercised by the same court at the same time, is set aside to the United States business," under the act of congress heretofore referred to, is there commented upon. If the jurisdiction of the district courts of this territory had not been separated by the legislature in ¿ecordance with the provisions of section 1874 of the Revised Statutes, where would the records of our courts go upon the admission of this territory as a state? To the state courts? Clearly not all the records, because the state courts would not have cognizance of United States causes pending; and as clearly only the federal cases would go, under section 529, Revised-Statutes, to the district or circuit court of the United States. Hunt v. Palao, 4 How. 589. “When a territory becomes a state, the records of the courts of the territory are transferred to the new state courts and to the federal courts respectively, the judicial proceedings existing in the courts of the territory being continued by federal law in the respective state and federal courts. ” Mr. Justice Field, in McAllister v. U. S., 141 U. S. 199. So we must agree that, while the two jurisdictions might have been exercised by identically the same courts and officers under the act of 1850, nevertheless these jurisdictions remained separate and distinct, and never became blended.
Now, let us see what was the condition as to the exercise of these jurisdictions, by what courts, -etc., when the question; involved in number 561, at bar, arose. In 1889 the legislature of this territory, by session act (chapter 96), attempted to provide a new jury law and system for the district courts of the territory. By the provisions of this act the jurors of the district courts for the counties, sitting for the trial of causes arising under the laws of the territory, were generally to be drawn from the counties, but in the counties of Santa Fe, San Miguel, Bernalillo, and Dona Ana, where courts for the trial of causes arising under the laws of the United States were held for the respective districts (in each case composed of more than one cdunty), it was provided that the grand and petit jurors selected for the said United States courts should have power respectively to examine into and try territorial causes for the county in which such courts were held; that is, the grand and petit jurors for the United States court of the First district should also act as grand and petit jurors for territorial causes in the county of Santa Fe, the two courts to be held at the same time, but with their respective officers in attendance upon each, etc. The intention of the legislature was not left to construction, but by section 4 of the act was expressed as follows: “It being the true meaning and intention of this act to provide for but one grand and petit jury in counties where causes arising under the laws of the United States are triable,” etc. At the same session a “change of venue” act was passed, by section 3 of which it was provided that “ * > * * the cause shall be removed either to some other county free from exception within the same judicial district, or to the district court of such judicial district sitting for the trial of causes arising under the constitution and laws of the United States, which court is hereby given jurisdiction to try and determine all causes so removed.” Laws, 1889, ch. 77. It will readily be seen that the intention of the legislature was that this section 3 should run hand in hand with seetion 4 of chapter 96, — the jury law referred to. It will also be seen that this was an attempt of the legislature to reinvest the federal judicial district courts with jurisdiction of which they had been deprived by the acts of 1859, and subsequent acts of the legislature in carrying out the provisions of section 1874, Revised Statutes; while from a careful perusal of the section it further appears that the legislature regarded this as an act for the “removal of causes.” From what has been already said, it follows that we must regard this change of venue act as null and void, in so far as it attempts to confer an abstract power upon a court which had been deprived by absolute legal statutory enactment, as well as by necessary implication and operation of law, of jurisdiction in territorial causes. If the district courts for the counties had been abolished by law, the jurisdiction might have been reinvested by .operation of law in the judicial district courts; but, being in full operation, no such reinvestment of jurisdiction could operate by a legislative enactment. Further, two classes of courts having been established, the one federal, and the other territorial, an act of the territorial legislature for the removal of causes from the one to the other is unconstitutional, and such a statute could only be made valid by an affirmative act of congress. See Greely v. Townsend, 25 Cal. 604; U. S. v. Peters, 5 Cranch. 115.
Another objection to the attempted enforcement of this change of venue act is as fatal, in our judgment, as those above given. The jury act of 1889 was attacked in the district court of the First district, in what were known as the “Ortiz Cases,” which came to this court, and here, in an able opinion by Associate Justice Feeeman, the law as to territorial causes in all the courts was held special, and in conflict with the act of congress of 1886, known as the “Springer Act.” Following this opinion, the legislature of 1891 adopted the jury law now in force, providing separate and dis-. tinct juries, grand and petit, for the judicial district courts of the several districts, and the county district courts held with them; jurors in the first instance being selected and summoned from all the counties of the district, and in the second from the county alone. The jurors for the federal courts are summoned and impaneled to try only United States causes; those for the county district court, for the trial only of territorial causes. Can it be maintained that when the jury law of 1889 fell, and was replaced by that of 1891, that portion of the change of venue act of 1889, founded upon this very jury law, did not fall with it? Yet we have in the case at bar an attempt of the judge of the First district to transfer a case arising strictly under territorial statute, brought originally on the territorial side of the court in Santa Fe county, and changed to other counties in the district, over to the court of the First judicial district, sitting for the trial of causes arising under the laws of the United States, placing it upo.n the United States docket, issuing process to the United States marshal, the clerk charging fees to the United States government, the jury to try the cause selected under the laws of 1891 for the trial of federal causes. This is an anomaly in practice and procedure such as is without parallel in the history of the courts of this or any other country, so far as our research discloses.
It is contended, however, that the writ issued improvidently in this cause, for the reason that an appeal would lie. If the court had no jurisdiction of the cause, a verdict and judgment would have been a nullity. Should we compel a party to appeal — granting that such would lie — from a void judgment, giving bond, suing out writ of error, and bringing up a cause here upon appeal, when we could only declare that the judgment below was no judgment! A stipulation was read in this cause, by which it is shown that another cause is pending below, to be disposed Of as is this cause. That is a quo warranto involving title to office, and it is strongly contended that no supersedeas goes from the decision of the court in such a cause. Granting this, upon appeal the party wouldbe ousted from office; and with his appeal here would, as his only recourse, be coupled the right to sue for trespass, the officer attempting to execute á void, illegal order of a court coram non judice. Prohibition in this cause affords the most speedy, adequate, and satisfactory remedy, and in our opinion, is the proper proceeding. See 3 Dall. 123; In re Cooper, 138 U. S. 404. We are therefore of the opinion that the preliminary writ of prohibition providently issued in the causes at bár, and that the same should be made absolute in each case. It is so ordered.
(September 4, 1894.) Smith, C. J., and Collier, J., concur. Laughlin, J.
I agree fhlly in the foregoing opinion, but can not concur, because I was of counsel in the case of Conklin v. Cunningham, which, by stipulation, is determined by this case.