In re Borrego

• Decision Date: 25 September 1896
• Citation: 46 P. 211,8 N.M. 655,1896 -NMSC- 030
• Parties: In re BORREGO et al.
• Court: New Mexico Supreme Court

46 P. 211

8 N.M. 655, 1896 -NMSC- 030

In re BORREGO et al.

Supreme Court of New Mexico

September 25, 1896

Habeas corpus proceeding in the matter of the application of Francisco Gonzales y Borrego and others.

Catron & Spiess, for petitioners.

John P Victory, Sol. Gen., H. L. Warren, and J. H. Crist, for the Territory.

COLLIER J.

In this case it is claimed that an appeal should be granted from this court discharging the writ of habeas corpus upon the return made thereto by respondent and remanding the petitioners to the supreme court of the United States. Counsel for petitioners base their claim for the allowance of an appeal upon two grounds: First, that an appeal is distinctly provided for by the act of 1874 embodied in section 1909 of the Revised Statutes, and by section 10 of the organic act for New Mexico; and, second, that it should be allowed under the act of congress of March 3, 1885 (23 Stat. 437), entitled "An act regulating appeals from the supreme court of the District of Columbia, and the supreme courts of the several territories." It must be conceded that, unless the portions of section 1909 and section 10, supra, relating to appeals and writs of error in habeas corpus proceedings are superseded or repealed by the act of March 3, 1885, the allowance of an appeal is mandatory in this character of case, but, if said act governs us in this matter, we must then look to it to ascertain if an appeal lies. We think that the reasoning in Cross v. Burke, 146 U.S. 82, 13 S.Ct. 22, is controlling on this question, and leads irresistibly to the conclusions that, just as for the District of Columbia the act of March 3, 1885, covered the entire subject of appeals, except as under section 5 of the Act of 1891 (26 Stat. 826), for the establishment of circuit courts of appeal, so, also, it covers the entire subject of appeals from supreme courts of territories to the supreme court of the United States, the act of 1891 providing in no way for such appeals. All antecedent legislation, therefore providing for appeals from territorial supreme courts, we must consider superseded by the comprehensive plan created by the act of 1885.

An apt illustration as to how section 10 of our organic act and section 1909, Rev. St., pass entirely from consideration as no longer existing legislation, is shown by the argument in the opinion by the chief justice in Cross v. Burke, supra pointing out how section 764, Rev. St., no longer applies to the District of Columbia, because of the said act of March 3 1885. But it is urged that under the act of March 3, 1885, an appeal lies under the terms of section 2, because it is claimed that the justice who tried the cause, and who amended the record while the same was on writ of error in this court was acting without authority of law, while pretending to act under an authority of the United States, and that everything done by him was coram non judice. It is unnecessary for us to say whether or not the application for the writ of habeas corpus distinctly draws in question such an exercise of authority, as, in our...