(dissenting). We find ourselves at the parting of the ways, and, since I cannot agree with the majority or go with them, it must result, as it did with Abraham and Lot in the days of old, that we “shall separate ourselves the one from the other”: the majority speaking for the court and registering its decree, while I must remain in the solitary and inhospitable domain of dissent. I recognize that no dissenting opinion can ever be justified unless it is right; that even then it is most unavailing unless it results in arresting attention, exciting inquiry, provoking discussion, and ultimately leads to the ascertainment of the truth. As to whether I am right in my conclusions upon the serious question of law with regard to which we differ, will be determined by a generous profession in this and other times. I trust that what I shall say may arrest attention, excite inquiry, provoke discussion, and ultimately at some good time yet to come, lead back to the protection of a constitutional guaranty which I believe to be violated by the majority opinion.
1. It is held in the opinion of the court that under the provisions of section 3416, Code 1915, a peremptory writ of mandamus, which is the final judgment in the case, may, in certain cases, be issued- in the first instance, and the defendant thereby ordered, by such final judgment, to do or perform a given act without ever at, any time or in any manner having an opportunity to speak or be heard in his behalf upon either the law or the facts — just what was done in this ease. This, in my judgment, violates the express provisions of section 18, of article 2, of the Constitution of this state, which provides:
“No person shall he deprived of life, liberty or property without due process of law; nor shall any person be denied the equal protection of the laws.’’
—as well as section 1 of the Fourteenth Amendment to the Constitution of the United States, which is in this language:
“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.”
“I shall not consume time and space in discussing the general rule that a statute which authorizes or permits taking life, liberty, or property without notice thereof is invalid because it violates the constitutional provisions quoted. In Lacey v. Lemmons, 22 N. M. 54, 159 Pac. 949, L. R. A. 1917A, 1185, section 1632, Code 1915, was held to be void because it authorized the taking and sale of certain kinds of live stock without notice thereof to the owner of such live stock. Again, in Janes v. West Puerto De Luna Comm. Ditch, 23 N. M. 495, 169 Pac. 309, sections 5739 to 5743, both inclusive, were held to be void because they authorized the appointment of appraisers, and prescribed the powers and duties of such appraisers as well as the procedure to be followed with reference to fixing the value of the lands taken or to be taken, without giving the owner of such lands any notice thereof. It is needless to discuss this general phase of the subject further, as we do not disagree upon the general statements made, but it is thought by the majority that this case does not come within the general rule; that the constitutional guaranty applies to the taking of life, liberty, and property, and that a public officer, who is commanded to perform an official act, suffers neither in his personal, nor his property, rights. It is upon this that I cannot agree. The case involved no personal or private rights of the respondents, but- it did involve property rights of the public citizenry and taxpayers of Guadalupe county which the respondents represented in their official capacity as the board of finance. They were made parties in such official capacity, and it was in that capacity that they were adjudicated and foreclosed by the final judgment rendered ex parte without their having any opportunity to be heard with reference to the law or to the facts. The public had a right which was involved. To illustrate, if the respondents had obeyed the writ, and the bond so approved had proven to be utterly worthless, with the result that the state and county should lost large sums of money, as the direct result of the respondents being compelled, against their will, to approve such bond, can it be .said that no property right would be thereby injured? I cannot escape the conclusion that the public had a property right in the subject involved, which the respondents represented in their official capacity; that such right was directly affected, in fact, it was completely adjudicated by the final judgment rendered without any notice whatever. This is what the statute permits to be done, and hence it violates the constitutional provisions referred to.
The majority apparently gives consideration to the case of Territory ex rel. Coler et al. v. Board of County Comm’rs, 215 U. S. 296, 30 Sup. Ct. 111. 54 L. Ed. 202. wherein the statute in question was cited and discussed by the Supreme Court of the United States, but tUe constitutionality thereof was not discussed nor determined, and hence it cannot be considered as authority here. The court there merely held the statute expressly authorized the issuance of a peremptory writ of mandamus in the first instance in certain cases. This is conceded, but the defect which lurks in the statute was not passed upon.
2. The majority further holds that the subsequent appearance by the respondents upon their motion to be allowed to appear and defend constituted a general appearance and gave the court jurisdiction of their person. This does not affect the validity of the statute in question. It was not what was done under a statute in a given case, but the test is what may be done that determines its constitutionality. Lacey v. Lemmons and Janes v. West Puerto De Luna Comm. Ditch Co. supra. Under the statute in question, the final judgment could have been rendered without any notice whatever, and without any appearance on the part of the respondents. This violates one of the sacred and fundamental theories of our form of government.
3. If the peremptory writ issued under an unconstitutional statute, the court acted without jurisdiction. In such an instance, it is conceded the writ of prohibition will issue. I think it was without jurisdiction, and. that the writ properly issued. I must therefore register my dissent.