Ex parte Lothrop. Filed

• Decision Date: 26 April 1886
• Citation: 118 U.S. 113,30 L.Ed. 108,6 S.Ct. 984
• Parties: Ex parte LOTHROP. Filed
• Court: U.S. Supreme Court

118 U.S. 113

6 S.Ct. 984

30 L.Ed. 108

Ex parte LOTHROP.

Filed April 26, 1886.

A. X. Parker, for petitioner.

Thos. Mitchell, for respondent.

WAITE, C. J.

The petitioner is detained in the territorial prison of Arizona upon a warrant of commitment issued by the county court of Cochise county, under a sentence of imprisonment on a conviction of the crime of grand larceny, and the only question presented by his petition is whether the territorial legislature of Arizona had authority to create and establish that court. There is no question of the jurisdiction of the court to try the petitioner for the offense of which he was convicted if the court itself was rightfully created.

The provisions of the Revised Statutes on which the question depends are these:

Sec. 1846. The legislative power in each territory shall be vested in the governor and a legislative assembly. The legislative assembly shall consist of a council and house of representatives.'

'Sec. 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.'

'Sec. 1864. The supreme court of every territory shall consist of a chief justice and two associate justices, any two of whom shall constitute a quorum. * * * They shall hold a term annually at the seat of government of the territory for which they are respectively appointed.

'Sec. 1865. 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, at such time and place as may be prescribed by law; and each judge, after assignment, shall reside in the district to which be is assigned.'

'Sec. 1868. The supreme court and the district courts, respectively, of every territory, shall possess chancery as well as common-law jurisdiction.

'Sec. 1869. 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 court of the territories, respectively, under such regulations as may be prescribed by law.'

'Sec. 1907. The judicial power in New Mexico, Utah, Washington, Colorado, Dakota, Idaho, Montana, and Wyoming shall be vested in a supreme court, district courts, probate courts, and in justices of the peace.

'Sec. 1908. The judicial power of Arizona shall be vested in a supreme court and such inferior courts as the legislative council may by law prescribe.'

'Sec. 1866. The jurisdiction, both appellate and original, of the courts provided for in sections 1907 and 1908 shall be limited by law.'

Such was the organic law of Arizona, as shown by the Revised Statutes, on the twelfth of March, 1885, when the act was passed by the legislative assembly of the territory, and approved by the governor, 'to create and establish a county court in the county of Cochise.' Section 4 of this act is as follows:

'Sec. 4. Said county court shall be a court of record, having a seal with the coat of arms of the territory and 'County Court, Cochise County, Arizona,' sunk or engraved thereon, and said county court shall have original, general, criminal, and civil jurisdiction, except as hereafter limited, and shall have equal concurrent common law, equitable, and statutory jurisdiction with the district courts in all cases. The county court of said Cochise county shall have original concurrent jurisdiction with the district courts in all cases of equity; and in all cases at law which involve the title or possession of real property, or the legality of any tax, impost, assessment, toll, or municipal fine; and in all other cases in which the demand or the value of the property in controversy amounts to one hundred dollars or more; and in all criminal cases amounting to felony; and cases of misdemeanor not otherwise provided for; of all actions of forcible entry and detainer; of proceedings in insolvency; of actions to prevent or abate a nuisance; of all matters of probate; of divorce, and for annulment of marriage and all matters incidental thereto or connected therewith; and of all such special cases and proceedings as are not otherwise provided for; and said court shall have the power of naturalization, and to issue papers therefor. Said county courts shall have appellate jurisdiction in all cases arising in justices and other inferior courts in said Cochise county in the same manner and to the same extent as is now allowed by law on appeals from such courts to the district courts. The said county court of Cochise county shall be always open, legal holidays and non-judicial days excepted, and its process shall extend to all parts of the territory: provided, that all actions for the recovery of the possession of, quieting the title to, or for the enforcement of liens upon real estate shall be commenced in the county in which the real estate, or any part thereof, affected by such action or actions, is situated. Said county court, and the judge thereof, shall have power to issue writs of mandamus, certiorari, injunction, prohibition, quo warranto, and habeas corpus, on petition, by or on behalf of any person in actual custody in said Cochise county. Injunctions, writs of prohibition, and habeas corpus may be issued and served on legal holidays and non-judicial days, and all acts and parts of acts granting and conferring jurisdiction to and upon the district courts, and describing their civil and criminal procedure, shall be, and is here made, applicable to the county court of Cochise county. Appeals shall be taken from the county court to the supreme court of this territory in the same manner, and in the same cases, as are now allowed by law in appeals from the district and probate courts to the supreme court.'

The judge of the court was to be elected by the qualified electors of the county, and to hold his office for four years. He was to reside at the county-seat, and could not be absent from the county more than 30 days in each calendar year.

The precise question for determination is whether such a court, with such a jurisdiction, is an 'inferior court,' within the meaning of section 1908. It has 'equal concurrent common-law, equitable, and statutory jurisdiction with the district courts in all cases,' and 'original concurrent jurisdiction with the district courts * * * in all criminal cases amounting to felony, and cases of misdemeanor not otherwise provided for.' It is therefore a court of substantially equal dignity and importance with the district court, so far as Cochise county is concerned; but it is 'inferior' to the supreme court, because that court has power to review its judgments and decrees on appeal. As every territory is, by the Revised Statutes, to be divided into districts, and a district court is...