(dissenting). — To my mind, it is clear that two errors, at least, fatal to- the validity of the commitment of the relators, appear upon the record of these proceedings. First, that the court had no jurisdiction, in the first instance, to issue the writ of injunction; second, that the judgment upon the hearing, touching the violation of the injunctional order, imposing a fine of $200 on each of the relators, and ordering their imprisonment until such fine be paid, is' illegal and of no binding validity. For the purpose of a proper understanding of the case, the bill of complaint, the writ of injunction, judgment on attachment, and commitment are set out in extenso:
“In the district court of Santa Fe county. Bill for injunction. Territory of New Mexico, county of Santa Fe — ss.: 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 Honorable Edward P. Seeds, associate justice of the supreme court of said territory, and judge of the said district court:
“Benjamin M. Bead, 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 Bead and Mayo for the offices of members of the house of representatives 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 in 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 show- . ing their election to the offices aforesaid, and complainants believe that they will certainly do so, unless restrained by an order of the 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 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 the said 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 a 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 writ of subpoena, under the seal of this honorable court, directed to defendants, John H. Sloan, George 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 thereunto, 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 12th day of November, 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 the 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.
“A. E. Walked, [seal]
“Clerk of the District Court.”
“Territory of New Mexico to John H. Sloan, George
L. Wyllys, and Teodoro Martinez, greeting: ,
“Whereas, Benjamin M. Read, 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 and 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. Read, 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 4th day of November, 1890, until the further order of the 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 12th day of November, 1890.
“A. E. Walkee, Clerk, [seal]”
“The territory of New Mexico to the sheriff of Santa
Fe county, greeting:
“You are hereby commanded to arrest and take the body of John H. Sloan, and him safely keep, so that you have his body before the district court within and for the county of Santa Fe, sitting at chambers at the federal building in said county, on Monday, January 19, 1891, at nine o’clock, a. m., then and there to answer for a charge of contempt. 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 17th day of January, 1891.
“A. E. Walkee, Clerk, [seal]
The attachment of Teodoro Martinez is in the same words.
“The territory of New Mexico to Francisco Chavez, sheriff of the county of Santa Fe, greeting:
“Whereas, on the 12th day of November, 1890, an injunction was issued out of the district court of Santa Fe county enjoining and restraining John H. Sloan, George L. Wyllys, and Teodoro Martinez, both individually and as members of the board of county commissioners of said Santa Fe county, their agents, servants, employees, and advisers, 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 Benjamin M. Read, Joseph B. Mayo, and Thomas B. Catron, and from making, or causing to be made, any record of the result of their canvass of the election returns of the election held in said county of Santa Fe on the 4th day of November, 1890, until the further order of said district court in the premises. And whereas, on the 17th day of January, 1891, there was filed in the office of the clerk of said court the petition of the said Thomas B. Catron, setting forth that the said John H. Sloan and Teodoro Martinez, two of the defendants in said injunction proceeding, wholly disregarding the injunction so issued as. aforesaid, did, on the 5th day of December, 1890, sitting as a board of canvassers of said county, canvass the returns of the general election held in said county on the 4th day of November, 1890, and did on said 5th day of December, 1890, make, order, and deliver a certificate of election to the offices of members of the house of representatives of the legislative assembly to persons other than the said Benjamin M. Eead, the said Joseph B. Mayo, and the said Thomas B. Catron, to wit, to one Charles F. Easley, to one Thomas P. Gable, and to one Eomulo Martinez; the said Easley and the said Gable receiving certificates of election to the office of member of the house of representatives of the legislative assembly, and the said Eomulo Martinez receiving a certificate to the office of member of the council of said legislative assembly; and praying that that court cause attachments to issue for the arrest of the said John H. Sloan and Teodoro Martinez for contempt. Whereupon such proceedings were had by the said court that on January 20, 1891, after attachments had been issued by said court against the said John H. Sloan and Teodoro Martinez, and after the bodies of the said Sloan and the said Martinez had been presented before the said court by you, the said sheriff, they being accompanied by counsel, and after a full hearing of counsel, the said John H. Sloan and Teodoro Martinez were adjudged guilty of contempt of this court in issuing and delivering a certificate of -election to Charles F. Easley, in issuing and deliving a certificate of election to Eomulo Martinez, and in making, or causing to be made, a record of the result of their canvass of the returns of the election held in said county of Santa Fe on the 4th day of November, 1890, and the punishment of each of said defendants was assessed to a fine of fifty dollars for each of the said several contempts, making a total of two hundred dollars against each of said defendants: Now, therefore, you, the said sheriff of Santa Fe county, are hereby commanded that of the lands and tenements, goods and chattels, of John H. Sloan, in your county, you cause to be made the sum of two hundred dollars fine, and seventeen dollars and forty-five cents costs of suit, which, by the said judgment of the said district court on the 20th day of January, 1891, the territory recovered against the said John H. Sloan, and in default of the prompt payment of the said sum by the said John H. Sloan that you confine the body of the said John H. Sloan in the common jail of said county until said fine and costs are fully paid and satisfied, and due return made of this writ, with your proceedings thereon. 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 20th day of January, 1891.
“A. E. Walkeb, Clerk, [seal]”
It appears, then, that the writ was granted at the suit of T. B. Catron, who claimed to be elected member of the council, and Benjamin M. Bead and J. B. Mayo, who claimed to be elected members of the house, in the present general assembly of this territory. They filed their bill before the completion of the official canvass of the votes by the board of county commissioners. Irregularities in returns from some of the precincts may have occurred, or the petitioners may have had reasons to suspect that the' board of county commissioners would not make a full and impartial canvass of the votes returned. It may not be amiss to remark, in passing, that the three petitioners, Catron, Bead, and Mayo, are, or claim to be, republicans, and that two of the three county commissioners are democrats. Partisan zeal may be at the bottom of the trouble. The important question to determine is, had petitioners a right to invoke the aid of a court of chancery to protect them by writ of injunction against the consequences of the possible, probable, or actual dishonesty of the county commissioners in making the official canvass and issuing certificates of election? Plainly, no such right existed if the law intrusted to another tribunal power to apply the proper remedy and offered complete relief. Each house of the legislative assembly is the exclusive judge of the election and qualification of its members. No decree, interlocutory or final, of a court of chancery can affect or impair this power. The judgment or discretion of the legislature can not be controlled by such decree. Its action in the premises is independent, final, and unassailable. Before it all contests must be decided. We cite the appropriate sections of the Compiled Laws of 1884, as amended by Laws of 1889: “Sec. 1172 (as amended Session Laws, 1889, p. 318). If any candidate from any county or district in this territory contest the seat of any representative or member of the council, said person shall give written notice to the contestee within thirty days after the returns of the election are received by the secretary of the territory. Said notice of contest shall specify as nearly as may be the grounds upon which the contestant relies, and it shall also give the name of some justice of the peace or notary public before whom it is proposed to take proofs in support of the grounds alleged and set forth in such notice, and also the time and place of the taking thereof. Sec. 1173 (as amended Session Laws, 1889, p. 318). The contestees, at the time and place of taking such proofs, may select another justice of the peace or notary public to assist in taking of such proof as he desires; but a failure to do so shall not affect the right of contestant to proceed with his testimony under his notice. Sec. 1174. To reject any illegal votes that may be polled at any election in this territory, it shall not be necessary to contest or question them at the polls, but they may be rejected by the authorities authorized by law to determine the validity of said elections, on being proved, after due notice is given by the party contesting said election to the opposing party. Said notice in any county election shall not be less than eight days, and shall in all cases be within thirty days thereafter. Sec. 1175. If the person whose seat is contested in either branch of the assembly intends to question the illegality of any votes given to the contesting candidates, he shall, within eight days after said contest, give equal notice to the onposite party in the manner prescribed in section 1172. Secs. 1176, 1177, 1178 (as amended Session Laws, 1889, p. 318). If the justice or justices of the peace, notary or notaries, appointed, or any of them, should fail, on account of sickness or other just cause, to be present at the taking of the testimony in such contests, another justice of the peace or justices, notary or notaries, may be chosen by the contestant parties, and the taking of such testimony shall commence within thirty days after the election, and the said justice or justices of the peace, or notary or notaries, shall issue subpoena (s) to all persons required by either party to appear and testify. Said justice or justices of the peace, notary or notaries, shall hear all the testimony, and certify the same to the president of the council, if the seat contested shall be that of a councilman, and to the speaker of the house of representatives, if it be that of a representative, on or before the first day of the session of the legislative assembly. Sec. 1179. No testimony shall be received by the justices, or either branch of the territorial legislature, from either the contesting or opposing parties, unless it refers to the points specified in the notice. The justices of the peace shall forward to the general assembly a certificate, together with the depositions taken by them, and no others, and the legislative assembly shall not receive any other testimony than that already specified.”
The foregoing sections are unmistakably intended to furnish legislative candidates with adequate means to protect their rights and prevent injustice.
The forum therein recognized as adequate to grant complete relief, to detect mistakes and frauds in all stages of the election, from the opening of the polls to the issuing of the certificates, is either house of the general assembly. Why should a court of chancery assume jurisdiction in a proceeding wherein it would be powerless to enforce obedience to its decrees? It has no right to decide who is or who is not elected. The legislature alone has the exclusive power to determine that fact. But, it may be said, it may regulate the intermediate procedure. Why should it? Does not the written law amply provide for the redress of any wrong that may be committed in the course of such procedure? Who has constituted the chancellor’s court a more reliable or less partisan tribunal than the council or the house of the general assembly for the rectification and settlement of the frauds or errors incident to popular elections? Once concede to the courts the right to interfere in such proceedings, and who can define the limits of such assumption? In the present case, each of the three petitioners received a certificate of election in accordance with the will of the chancellor, as expressed in the preliminary writ of injunction ; but the two members of the house, upon contest had before that body, within a few days after their admission, were expelled, and their seats awarded to other parties. If wrong, can any order or decree entered or to be entered by the chancellor afford a remedy? Will courts take jurisdiction of causes wherein they are powerless to enforce their judgments? It may be said, in answer to this, that the present suit by injunction was simultaneous with and ancillary to mandamus proceedings instituted to compel the county commissioners to receive and canvass the election returns. How does that relieve the matter of its objectionable features, as long as each house of the general assembly has legal power to ignore the adjudications in either case, and to approve or disapprove the alleged misconduct of the commissioners, by awarding seats to the candidates who, in its opinion, were elected and qualified, regardless of the orders and judgments of the court? Are the judicial and legislative departments of the territorial government to be thus encouraged to-wage war upon each other’s dignity, and bring odium and discredit upon both? Case law, so called, may be found in support of almost any proposition that the vagaries of counsel may advance or invent. But I doubt if the history of legal proceedings furnishes any precedent at all similar to the one under consideration. Some of the facts found in, and many of the legal principles applied to, an authoritative case in Illinois. (Dickey et al. v. Reed, 78 Ill. 261), ought, in my opinion,, to have a controlling influence in the decision in this case. All of the wrongful acts charged to the county commissioners in the bill are properly reviewable in a statutory contest before the council or the house of the general assembly. The law presumes that the decision rendered therein will be just, and hence has made it conclusive. “When the law furnishes,” says the-supreme court of Illinois in the case cited, “a mode for contesting any election, that mode must be followed.” Again: “ Courts of equity have no inherent power to try contested elections, and they have never-exercised such power except in cases where it has been conferred by express enactment or necessary implication.” And: “Injunctions, when issued by a court not having power, need not be obeyed.” It is-useless to urge that this suit was not instituted to contest an election. The bare perusal of the bill shows-that such was its main object, and that the complainants were unwilling to take the requisite statutory-steps, and submit their claims to the arbitrament of the only tribunal authorized by law to hear, try, and determine the same. It follows, in my judgment, that the proceedings were coram non judiee and void, and that the relators may not be punished for contempt in •disobeying the injunetional order.
The commitment of the relators appears to me to be illegal also, because the court had no power to inflict as punishment for disobedience of the writ a fine in excess of that prescribed by the statute. Section 665 of the Compiled Laws of New Mexico of 1884 reads as follows: , “No judge of the district court shall fine any person for contempt for a w;ant of respect for the court in a sum exceeding fifty dollars, without a trial by jury. ” There is no pretense of a jury trial in this case, and still each of the relators was fined $200 for the violation of this injunction, and ordered to prison until the payment thereof. The trial judge, recognizing the binding force of the statute, discovered that there were four distinct mandates in the writ, and multiplying the $50 by four — the number of the acts covered by the restraining aegis of the injunction — he pronounced the multiplied sentence as the judgment of the law. Plainly this was error. The writ must be regarded as a single, indivisible, judicial act, and punishment for its violation ought not to exceed the maximum amount fixed by the statute. Had the judgment ended in the fine alone, perhaps it would be void for the excess only; but, when it consigned the alleged transgressors to the county jail until such fine was fully paid, it deprived the citizen of his liberty, because,, perhaps, unable to payan illegal exaction, and thereby became oppressive and void in toto. The relators might have been able and willing to pay the statutory amount, but unable, though ever so willing, to pay the excessive ransom.
The foregoing remarks embody my views as to the merits of this painful controversy. It follows, in my judgment, as the injunction proceedings were void ab initio, and as the judgment pronounced upon relators in the attachment proceedings to punish them for contempt in violating the commands of ■ the writ was-equally void, because rendered in violation of the plain provision of the statute, that the relators áre unlawfully restrained of their liberty, and should be unconditionally discharged from imprisonment.