State Ex Rel. Harvey v. Medler

• Decision Date: 18 July 1914
• Docket Number: No. 1695.,1695.
• Citation: 142 P. 376,19 N.M. 252
• Parties: STATE EX REL. HARVEY, COUNTY CLERK,v.MEDLER, DISTRICT JUDGE.
• Court: New Mexico Supreme Court

19 N.M. 252

142 P. 376

STATE EX REL. HARVEY, COUNTY CLERK,

v.MEDLER, DISTRICT JUDGE.

No. 1695.

Supreme Court of New Mexico.

July 18, 1914.

Syllabus by the Court.

A writ of prohibition is an extraordinary writ, issued by a superior court to an inferior court to prevent the latter from exceeding its jurisdiction, either by prohibiting it from assuming jurisdiction in a matter over which it has no control, or from going beyond its legitimate powers in a matter of which it has jurisdiction.

A court is inferior to another when it is placed under the supervisory or appellate control of such other court.

The writ of prohibition is not a writ of right, granted ex debito justitiæ, but rather one of the sound judicial discretion, to be granted or withheld according to the circumstances of each particular case, to be used with great caution for the furtherance of justice when none of the ordinary remedies provided by law are applicable.

The writ of prohibition cannot be used to correct mere irregularities or to perform the functions of an appeal or writ of error.

If it is manifest that an appeal would afford an inadequate remedy, the right of appeal does not, of itself, afford sufficient ground for refusing relief by prohibition.

In creating a legislative department and conferring upon it the legislative power, the people must be understood to have conferred the full and complete power as it rests in, and may be exercised by, the sovereign power of any country, subject only to such restrictions as they may have seen fit to impose, and to the limitations which are contained in the Constitution of the United States.

There being no constitutional inhibition against legislative action in the matter of suspension of public officers, which is properly to be considered as included within the broader term “removal,” the provisions of chapter 36, of Laws 1909, do not constitute a violation of the constitutional provisions of section 2 of article 20.

Section 26 of chapter 36, Laws 1909, confers jurisdiction upon the district courts to make preliminary investigations and suspend the officer pending the final adjudication of the matters alleged in an accusation, before the case shall be continued, upon application of defendant, beyond the term of court at which the accusation is presented, or, if presented in vacation, beyond the first term of court after presentment thereof.

Held, that jurisdiction to entertain preliminary investigations other than as limited and prescribed in sections 26 and 21 of the act does not exist in the district courts, and, the present case not falling within either section of the act, the district court was assuming a jurisdiction in excess of that conferred upon it by the statute, and is therefore subject to the restraint imposed by a writ of prohibition issuing out of this court.

Original petition for a writ of prohibition by the State, on the relation of Albert H. Harvey, County Clerk of Lincoln County, against Edward L. Medler, Judge of the District Court of the Third Judicial District, etc. Ordered that permanent writ issue.

A court is inferior to another when it is placed under the supervisory or appellate control of such other court.

This is an original petition for a writ of prohibition. Relator is the county clerk of Lincoln county, and respondent is the presiding judge of the Third judicial district court, which is composed of the counties of Dona Ana, Otero, Lincoln, and Torrance.

On March 20, 1914, a certain presentment was found by the grand jury of Lincoln county against relator, as county clerk of said county, which was duly served upon relator, who subsequently, on March 31, 1914, filed objections thereto, which were overruled in part and sustained in part. On April 11th relator filed his affidavit and motion for a change of venue upon the ground of alleged interest of the trial judge in the prosecution of said cause, which was overruled; on April 11th relator filed a challenge to the array of the regular panel and moved to quash said panel for the reason that the panel was improperly drawn, in that the notice of the time and place of the drawing of the jury was not posted for a period of ten days, required by law, which motion was granted by the trial court, the cause being thereupon continued by the trial court, upon its own motion, until the next regular or special term of said court. Thereafter, to wit, on the 14th day of April, and during the said March, 1914, term of said court, the district attorney aforesaid moved the court to forthwith make a preliminary investigation as to whether or not this relator should be suspended from the office of county clerk of said Lincoln county, under said presentment, pending the final adjudication of said cause by jury; and, over the objections of counsel for relator, said court sustained the motion of said district attorney to make a preliminary investigation as asked for by said district attorney, and then and there designated the 2d day of May, A. D. 1914, at the hour of 10 a. m., at the courthouse in the town of Carrizozo, N. M., as the time and place for such investigation without a jury, and the relator was then and there ordered to be and appear at said time and place to show cause why he should not be suspended from said office of county clerk of said county of Lincoln, until the matters and things alleged in the said presentment have been judicially determined by the court.

The relator further showing by his application for the writ that the accusations against him were presented by a grand jury of said county, and that relator was entitled to a trial by jury at said March, 1914, term of said Lincoln district court; that at no time during the session of said court did the relator ask for a continuance of said cause; that said cause was on the said 11th day of April, 1914, without the consent of relator, continued by the court until the next regular or special term of said court; that the regular term of said court commences on the first Monday in October, 1914, and no special term of said court has been called; and that, until there is a regular or special term of said court as provided by law at which this relator can be tried by a jury, the said judge of said court cannot hear said presentment in vacation, and that he is without jurisdiction under the Constitution of this state and the act entitled “An act providing for the removal of officers, establishing the procedure therefor, and for other purposes,” approved March 15, 1909, to investigate the accusations against relator contained in said presentment, and that said court is without jurisdiction to suspend relator from the office of county clerk of said county of Lincoln during a vacation of said court; that the relator has no plain, speedy, and adequate remedy in the premises to prevent the respondent herein from proceeding to make a preliminary investigation in the said cause, No. 2229, at the term time of said court, for the purpose of ascertaining whether or not this relator should be suspended from his said office pending the trial of said cause by a jury, and that, if the respondent herein is not prohibited from proceeding to make the preliminary investigation aforesaid on the said 2d day of May, 1914, and during a vacation of said court, this relator will be subject to a great disgrace, and will have no remedy in the premises, and he further states that the proceedings proposed in said investigation on the day named are in excess of the jurisdiction and authority of said district judge.

Based upon the foregoing facts the prayer of the application for the writ is that respondent be restrained and prohibited from conducting a preliminary investigation for the purpose of ascertaining whether or not relator should be suspended from his office as county clerk, pending his trial.

To the application for the writ a demurrer is interposed raising several questions, which are considered in the order presented in respondent's brief.

Geo. W. Prichard, of Santa Fé, and Geo. B. Barber, of Carrizozo, for relator.

Frank W. Clancy, Atty. Gen., for respondent.

HANNA, J. (after stating the facts as above).

[1][2] 1. The first question presented for our consideration is: Has this court power to issue a writ of prohibition to a district court? The jurisdiction of this court, in the premises, must be found in sections 2 and 3 of article 6 of our Constitution, which are as follows:

“Sec. 2. The appellate jurisdiction of the Supreme Court shall be co-extensive with the state, and shall extend to all final judgments and decisions of the district courts, and said court shall have such appellate jurisdiction of interlocutory orders and decisions of the district courts as may be conferred by law.

Sec. 3. The Supreme Court shall have original jurisdiction in quo warranto and mandamus against all state officers, boards and commissions, and shall have a superintending control over all inferior courts; it shall also have power to issue writs of mandamus, error, prohibition, habeas corpus, certiorari, injunction and all other writs necessary or proper for the complete exercise of its jurisdiction and to hear and determine the same. Such writs may be issued by direction of the court, or by any justice thereof. Each justice shall have power to issue writs of habeas corpus upon petition by or on behalf of a person held in actual custody, and to make such writs returnable before himself or before the Supreme Court, or before any of the district courts or any judge thereof.”

By the learned Attorney General it is argued that the common-law writ of prohibition could be issued only to a tribunal of inferior or limited jurisdiction for the purpose of restraining any excess of that jurisdiction, and that therefore it could never go to a superior court of general and unlimited jurisdiction.

The Attorney General directs our attention to the powers of the district court, which is given...