(dissenting). — I regret my inability to agree with the disposition mqde of this case as announced in the foregoing opinion. It would serve no useful purpose to repeat the facts in the brief statement of the reasons that compel me to dissent. In the alternative writ the relator is required to act as follows: “Now, therefore, you, the said Pedro Delgado, probate clerk of the county of Santa Fe, and ex officio clerk of the board of county commissioners of said county, are hereby commanded that, immediately after the receipt of this writ, you produce the books in which are kept the records of meetings and proceedings of the board of county commissioners of Santa Fe county, and to record therein the records of the meetings of said board and the proceedings thereof held on the second day of January, 1891, and record in said record of minutes and proceedings the record of minutes and proceedings of all other meetings heretofore had by the board of county commissioners which may not have been recorded in said records, and also record all the proceedings of said board which hereafter may be had, and that in doing so you act as the ex officio clerk of the board of county commissioners, of which said board said Abraham Staab, Juan Garcia, and William H. Nesbitt are members, and that you act with no other persons whatever pretending or claiming to act as a board of county commissioners of the county of Santa Fe, and that you make regular entries of all their resolutions and decisions in all questions concerning the raising of money, and that you record the vote of each commissioner on any question submitted to the board, if required by any member; that you sign all orders issued by the said board for the payment of money, and record in a book printed for that purpose the receipts of the county treasurer of the receipts and expenditures of the county, and that you do and perform all acts required of you by law as ex officio clerk of the board of county commissioners of Santa Fe county, in connection with said Abraham Staab, Juan Garcia, and William H. Nesbitt, as the proper and only persons composing the board of county commissioners of Santa Fe county, and that you do recognize the said Abraham Staab, Juan (Jarcia, and William H. Nesbitt as the only lawful county commissioners of Santa Fe county, and as composing the only lawful board of county commissioners of said county, and that you do furnish to said board all the books, records, files, and papers of your said office for their use, inspection, information, and government in the discharge of their duties as the board of county commissioners of said county, and that you do not furnish them to any other person or persons except as the law may require you to do for the inspection and information of private individuals, or that you show cause, before the First judicial district court of the territory of New Mexico in and for the county of Santa.Fe, at chambers, in the federal building in the city of Santa Fe, N. M., on Wednesday, January 14, 1891, at 9 o’clock A. m., why you have not done so,” etc.
On the return day of the writ, the relator, Delgado, appeared and filed his answer thereto, as follows :
“Territory of New Mexico, county of Santa Fe. In the district court of Santa Fe county. The territory of New Mexico, on the relation of Abraham Staab and others v. Pedro Delgado. Mandamus. No. 2838.
“The above named defendant, Pedro Delgado, now and at all times hereafter reserving unto himself all manner of objections and exceptions to the many uncertainties, imperfections, and insufficiencies in the alternative writ of mandamus issued in the above named cause, for answer thereto, or so much thereof as he is informed and advised that is necessary for him to make answer unto, answers and says that he admits that at the general election held in the said county of Santa Fe on the 4th day of November, 1890, he, the said defendant, was duly elected clerk of the probate court of the said county, and that on the first day of January, 1891, he having duly qualified as such clerk, and entered upon the discharge of the duties of such office, and that he has continuously since said last mentioned date been in the possession of such office, and has been ex officio clerk of the board of county commissioners of said county, and has had and held possession of the records and books, which by law he is made the custodian of. Said defendant admits that in the month of November, 1890, and for a long time prior thereto, and until the 1st day of January, 1891, George L. Wyllys, Teodom Martinez, and John H. Sloan, were the legally elected and lawfully acting members of the board of county commissioners of the county of Santa Fe, in said territory; but he denies that the said Wyllys and Martinez, or either of them, were ever removed from their said offices, or that-the office held by either of said persons became vacant prior to the expiration of their terms, to wit, on the 1st day of January, 1891; and he denies that either of the said persons abandoned their said offices, or that they, or either of them, refused to perform the duties and functions thereof; and he denies that G-eorge W..North and Frederic G-race, or any other persons were ever legally appointed by the acting governor of the territory of New Mexico, or any other person, as members of the board of county commissioners of said county; and he denies that said George W. North and Frederic Grace, or either of them, were ever members of the board of county commissioners of said county, or that they, or either of them, ever had any power or authority to perform the duties or exercise the functions of said offices. And this defendant avers' the fact to be that on the fourth day of November, 1890, and for many months prior thereto, and continuously until the first day of January, 1891, John H. Sloan, G-eorge L. Wyllys, and Teodoro Martinez were the duly elected and qualified members of the board of county commissioners in and for the county of Santa Fe, in said territory, and that they, each and all of them, continued to hold such office, and were in the actual possession thereof, and performing all the duties and functions of such offices, during all of the year 1890, and up until the first day of January, 1891. This defendant denies that at the election held in the county of Santa Fe on the fourth day of November, 1890, Abraham Staab, Juan Garcia, and William H. Nesbitt, or either of them, were elected as members of the board of county commissioners of said Santa Fe county; and he denies that the said Staab, Garcia, and Nesbitt ever obtained, or that they now have or hold, any certificates showing that they, or either of them, was at said election elected as members of the board of commissioners of said county; and said defendant also denies that the said Abraham Staab, Juan Garcia, and William H. Nesbitt, or either of them, have ever qualified as members of said board of commissioners; and he denies that the said Staab, Garcia, and Nesbitt, or either of them, have, by virtue of any such election, had or held possession of the office of a member of the board of county commissioners of said county, or that they, or either of them, have held any session as members of said board of county commissioners by virtue of such election, nor have they, or either of them, by virtue of such election performed any of the duties pertaining to such office; but he alleges the fact to be that at the general election held in and for said county of Santa Fe, in said territory, on the fourth day of November, 1890, George L. 'W'yllys, Charles M. Creamer, and Eugenio Martinez were each duly elected as members of the board of commissioners in and for the county of Santa Fe, and territory of New Mexico, the said Wyllys, Creamer, and Martinez receiving at said election the greatest number of legal votes cast at said election in said county for said offices of county commissioners for said county, and after said election returns thereof were made as required by law, and the board of county commissioners then in office for said county, met as a canvassing board of election for said county, and duly counted and canvassed all the votes cast in the several precincts in said county at said election, returns of which were before said board, and after counting and canvassing said votes and returns, the said board of commissioners, as such canvassing board, ascertained that the said George L. Wyllys, Charles M. Creamer, and Eugenio Martinez had been and were duly elected as members of the board of. county commissioners for said county of Santa Ee at said election, all of which was duly entered of record; and thereupon said board of commissioners, as such canvassing board, issued under their hands and the seal of said board certificates to said Wyllys, Creamer, and Martinez, setting forth that they had been duly .elected at said election as membei“s of the board of county commissioners of said county of Santa Ee, which said certificates were duly attested by the probate clerk of said county; .and afterward, to wit, on the first day of January, 1891, the said Charles M. Creamer and Eugenio Martinez, each having duly qualified as mem-, bers of the board of county commissioners of said county of Santa Fe, they entered into possession of, and assumed the duties of, their said offices, and met together in the courthouse of said county, in the city of Santa Ee, as the board of county commissioners of said county, and proceeded to transact business as such, and the said Creamer and Martinez have continuously from said first day of January, 1891, had and held possession of said offices, and at the present time, and at the date of issuing of the alternative writ of mandamus in this action, the said Creamer and Martinez were and are holding and are in the possession of said offices, and are now, and have at all times since the first-day of January, 1891, been, the legal, acting members of the board for the said county of Santa Fe, and have-during all of said time been transacting the public business of said county as such commissioners. Said defendant states that he is not informed as to what acts- or proceedings were done or had by one Frederic Grace- and one George W. North, pretending to act as members of the board of county commissioners in reference to the counting and canvassing the returns of election of the general election held in said county on the fourth, day of November, 1890, but he states whatever they may have done in that respect was wholly illegal, and of no effect, for said Grace and North were not, at the time of their said pretended action and the counting and canvassing of said votes, members of the board of' commissioners of said county of Santa Fe. Said defendant admits that he has refused to recognize-Abraham Staab, Juan Garcia, and William H. Nesbitt as members of the board of commissioners of said Santa Fe county, for the reason that they have never-been elected and qualified as such officers, and because they have not been in the possession of . said offices, and have never acted as members of such board and denies that said Staab, Garcia, and Nesbitt have ever-met as such board, or held any session as such, as set forth in the alternative writ of mandamus herein, but he says that since the first day of .January, 1891, Charles M. Creamer and Eugenio Martinez have been the legal and acting board of commissioners of said county. As to all the allegations and statements set forth in said alternative writ, not herein expressly admitted or denied, the said defendant states that he has not sufficient information upon which to form a. belief, and he therefore denies all of said allegations.
‘ ‘Pedko Delgado. ’ ’
“Pedro Delgado, being duly sworn, on his oath states that the facts set forth in the foregoing answer are true to his best knowledge* information, and belief.
“Pedko Delgado.
“Subscribed and sworn to before me this 15th day •of January, 1891.
“N. B. Laughlin, Notary Public.”
Thereupon, on the motion of Staab, Garcia, and 'Nesbitt, the three alleged county commissioners before mentioned, without further hearing or proceedings, the alternative writ was made peremptory; and thereafter, on the affidavit of said William H. Nesbitt, filed January 19, 1891, the following order was entered:
“It being shown to the court by. the petition and affidavit of William H. Nesbitt, filed this 19th day -of January, 1891, in the cause lately pending in said •district court, in which Abraham Staab, Juan Garcia, ■and William H. Nesbitt were relators, and Pedro Delgado was respondent, that the said defendant, Pedro Delgado, has refused, and still does refuse, to obey the [peremptory writ of mandamus issued out of this court in said mandamus proceeding on the 15th day of January, 1891, it is ordered by the court that an attachment for contempt, returnable at five o’clock this after-moon, issue for the arrest of said defendant, Pedro Delgado. “Edwabd P. Seeds,
“Associate Justice, &c.
“Santa Ee, New Mexico, January 19, 1891.”
Thereafter, on January 20,1891, the following final .judgment was entered:
“It is considered and adjudged by the court that -said defendant, Pedro Delgado, is guilty of contempt -of this court in refusing to obey and in disobeying the •command of said writ of. mandamus; and it is further adjudged by the court that' said Pedro Delgado stand committed to the common jail of Santa Ee county until he purge himself of such contempt, and that a warrant of commitment issue against him.
“Edward P. Seeds,
“Associate Justice, &c.
“Santa Fe, New Mexico, January 20,1891.”
In pursuance of this judgment, a commitment issued, and Delgado was imprisoned in the county jail. To be relieved cf such imprisonment, he instituted his present habeas corpus proceeding before this court.
In this connection, I cite chapter 60, Laws, 1887, section 1: “That in all cases of proceedings by mandamus in any district court of this territory, the final judgment of the court thereon shall be reviewable by appeal or writ of error, in the same manner as now provided by law in other civil cases, except that such appeal or writ of error shall not operate as a supersedeas of any judgment of the district court.” The judgment-of the district court was the imprisonment of Delgado until he obeyed the commands of the peremptory writ; and, according to the provisions of the statute above cited, no appeal or writ of error could release him from such imprisonment, no matter how erroneous or illegal the judgment authorizing it might be,' until the final determination of the appeal or writ of error in this court.
The gist of all the orders contained in the alternative and peremptory writs of mandamus is that Delgado recognize Abraham Staab, Juan (Jarcia, and William H. Nesbitt as the only persons composing the lawful board of county commissioners of Santa Fe county. All other acts commanded are the mere incidents of this recognition. The answer of Delgado to the alternative writ showed in apt terms why he did not so recognize them. Without admitting or denying the validity of this writ, I am clearly of the opinion that Delgado’s answer thereto raised a material issue of fact. The motion of the county commissioners to make the writ peremptory, notwithstanding the answer, was in the nature of a demurrer to its sufficiency; and the judgment of the court, in granting that motion, was, in effect, an order sustaining such demurrer. This, in my judgment, was substantial error, from the consequences of which Delgado can not be relieved by appeal or writ of error. He is in jail, and has no adequate remedy against such illegal imprisonment, unless it may be afforded him in this proceeding. I do not overlook the provisions of section 2013, Compiled Laws, 1884. It must not be forgotten, however, that that section contains the following qualification: “But no order of commitment for any alleged contempt, or upon proceedings as for contempt to enforce the rights or remedies of any party, shall be deemed a judgment, conviction, or decree, within the meaning of this section; nor shall any attachment or other process issued upon any such order be deemed an execution, within the meaning of this section.” I hold, then, if substantial error, prejudicial to the rights and liberty of the petitioner herein, appears upon the record of these proceedings, that the same are reviewable, although contained in the final judgment, declaring him in contempt. Believing, then, that such judgment was entered in violation of law, and that the relator is deprived of his liberty in consequence thereof, I hold that he is entitled to his discharge from this illegal imprisonment. The record in this case contains, in my opinion, other errors especially fatal to the legality of the petitioner’s confinement, but it would answer no useful purpose to consider them in connection with this opinion. A labored citation of authorities from states,- each having peculiar statutes regulating the procedure of the courts, and the rights of the parties seeking relief from restraint deemed illegal, might show a great deal of legal research, but would throw little or no light upon the case under consideration. I can not close this hastily written opinion more appropriately than by citing the language of the court of appeals in the state of New York in the historic case of People v. Liscomb, 60 N. Y. 559: ‘‘Jurisdiction of the person of the prisoner and of the subject-matter are not alone conclusive, but the jurisdiction' of the court to render a particular judgment is a proper subject of inquiry; and while the court can not, upon a return of the writ, go behind the judgment, and inquire into alleged error and irregularities preceding it, the question is presented, and must be determined, whether, upon the whole record, the judgment was warranted by law, and was within the jurisdiction of the court..”