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Opinion of the Court.

Hence, that, as it was well settled that a proceeding in habeas corpus was a civil and not a criminal proceeding, and was only availed of to assert the civil right of personal liberty, the matter in dispute had no money value, and an appeal would not lie. Cross v. Burke, 146 U. S. 82; Farnsworth v. Montana, 129 U. S. 104; United States v. Sanges, 144 U. S. 310, 320; Washington & Georgetown Railroad v. District of Columbia, 146 U. S. 227; In re Lennon, 150 U. S. 393, 397; In re Chapman, Petitioner, 156 U. S. 211, 215; In re Belt, Petitioner, 159 U. S. 95, 100; Chapman v. United States, 164 U. S. 436; Perrine v. Slack, 164 U. S. 452.

The Supreme Court of New Mexico declined to allow an appeal in this case because of the rule laid down in Cross v. Burke and in In re Lennon, supra, and it may be admitted that the view that an appeal would not lie might well have been entertained. But we think that the legislation in respect of the review of the final orders of the Territorial Supreme Courts on habeas corpus so far differs from that in respect of the judgments of the courts of the District of Columbia that a different rule applies.

It will be perceived that the revision of the final judgments or decrees of the Supreme Court of the District depended on the provision that they should be so reexaminable in the same cases and in like manner as the final judgments of the Circuit Courts of the United States, and that there was no special provision in relation to the review of final orders of such courts on habeas corpus.

Sections 702 and 1909 of the Revised Statutes are as follows:

"SEC. 702. The final judgments and decrees of the Supreme Court of any Territory, except the Territory of Washington, in cases where the value of the matter in dispute, exclusive of costs, to be ascertained by the oath of either party, or of other competent witnesses, exceeds one thousand dollars, may be reviewed and reversed or affirmed in the Supreme Court, upon writ of error or appeal in the same manner and under the same regulations as the final judgments and decrees of a Circuit Court.

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Opinion of the Court.

"SEC. 1909. Writs of error and appeals from the final decisions of the Supreme Court of either of the Territories of New Mexico, Utah, Colorado, Dakota, Arizona, Idaho, Montana and Wyoming, shall be allowed to the Supreme Court of the United States, in the same manner and under the same regulations as from the Circuit Courts of the United States, where the value of the property or the amount in controversy, to be ascertained by the oath of either party, or of other competent witnesses, exceeds one thousand dollars, except that a writ of error or appeal shall be allowed to the Supreme Court of the United States from the decision of the Supreme Courts created by this title, or of any judge thereof, or of the District Courts created by this title, or of any judge thereof, upon writs of habeas corpus involving the question of personal freedom."

This section was one of those under title 23, "The Territories," and the exception was brought forward from section 10 of the organic law of New Mexico, approved September 9, 1850. 9 Stat. 446, 449, c. 49.

As to the Supreme Court of the District of Columbia, its final judgments, orders and decrees were reviewable by this court on writ of error or appeal by section 705 of the Revised Statutes, and section 846 of the Revised Statutes of the District, in the same cases and in like manner as provided by law in reference to the final judgments, orders and decrees of the Circuit Courts of the United States, and there was no mention of final orders on habeas corpus; but as to the Supreme Courts of the Territories, the right of appeal in habeas corpus was given in addition by the special provision of section 1909 of the Revised Statutes. When the Revised Statutes and the Revised Statutes of the District were approved, both on the same day, June 22, 1874, appeals could not be taken from the decisions of Circuit Courts on habeas corpus except in the instance of the subjects or citizens of foreign States; and the act of March 3, 1885, c. 353, 23 Stat. 437, restoring the appellate jurisdiction of this court in respect of final decisions of the Circuit Courts on habeas corpus in cases of persons alleged to be restrained of their liberty in

Opinion of the Court.

violation of the Constitution or any law or treaty of the United States, did not operate to give the same right of appeal to the courts of the District of Columbia. And then the second act of March 3, 1885, c. 355, 23 Stat. 443, came in to furnish the exclusive rule as to appeals and writs of error to review the final judgments and decrees of the courts of the District. And this would have been equally true as to the courts of the Territories if jurisdiction had depended solely on § 702 of the Revised Statutes; but under section 1909 an appeal would lie to this court from the decisions of the Territorial Supreme Courts on habeas corpus when it would not lie from Circuit Courts or courts of the District of Columbia in like case, and the question on this record as to the right of appeal is whether Congress intended to repeal that special provision as to final orders on habeas corpus by including the Supreme Courts of the Territories in the act of March 3, 1885, c. 355. The intention to do so is not expressed, and repeals by implication are not favored. The act covered substantially the entire ground as to the District of Columbia as the statutes stood, but while it might be fairly argued that it did so as to the Territories, it does not necessarily follow that the exception in respect of final orders on habeas corpus was designed to be affected. The act has its obvious field of operation without being assumed to be in every respect a substitute for the earlier law in relation to the Territories, and since the last clause of § 1909 was directed to a special object and applicable to particular cases, we think it may properly be held that the act of March 3, 1885, had only general cases in view, and that it was not intended to do away with the special provision. Indeed, it was distinctly ruled in In re Snow, 120 U. S. 274, that an appeal would lie under section 1909 from a final order entered in 1886 on habeas corpus by the Supreme Court of the Territory of Utah; and this notwithstanding the act of March 3, 1885, c. 355, which was quoted and referred to in Snow v. United States, 118 U. S. 346. Jurisdiction was also entertained of such an appeal in Nielsen, Petitioner, 131 U. S. 176, from a final order of a District Court of the Territory of Utah and in In re Delgado, Petitioner, 140

Opinion of the Court.

U. S. 586, from a final order of a District Court of New Mexico.

This result is not affected by the judiciary act of March 3, 1891, c. 517, 26 Stat. 826. Shute v. Keyser, 149 U. S. 649; Folsom v. United States, 160 U. S. 121; In re Lennon, 150 U. S. 393; In re Heath, 144 U. S. 92.

But although the motion to dismiss for want of jurisdiction will be overruled, we are of opinion that the motion. to affirm must be sustained. The general rule is well established that a writ of habeas corpus cannot be used to perform the office of a writ of error, and that this doctrine applies not only to original writs of habeas corpus issued by this court, but on appeals to it from courts below in habeas corpus proceedings. In re Schneider, 148 U. S. 162; Benson v. McMahon, 127 U. S. 457, 461, 462; Stevens v. Fuller, 136 U. S. 468, 478.

The contention here is that the proceedings before Judge Hamilton were coram non judice and void because, being the member of the Supreme Court assigned to the fifth district, he could not exercise judicial power in the first district.

By 1851 of the Revised Statutes, it was provided that "the legislative powers of every Territory shall extend to all rightful subjects of legislation not inconsistent with the Constitution and laws of the United States."

By § 1865, that "every Territory shall be divided into three judicial districts; and a District Court shall be held in each district of a 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 he is assigned."

By § 1874, that "the judges of the Supreme Court of each Territory are authorized to hold court within their respective districts, in the counties wherein, by the laws of the Territory, courts have been or may be established, for the purpose of hearing and determining all matters and causes except those in which the United States is a party."

Section 1907 provided that "the judicial power in New Mexico, Utah, Washington, Colorado, Dakota, Idaho, Mon

Opinion of the Court.

tana and Wyoming shall be vested in a Supreme Court, District Courts, Probate Courts and in justices of the peace.”

These provisions, mutatis mutandis, were contained in the organic law of New Mexico.

The number of judges of that Territory having been raised to five, it was provided by an act of July 10, 1890, c. 665, 26 Stat. 226: "Sec. 3. That the said Territory shall be divided into five judicial districts, and a District Court shall be held in each district by one of the justices of the Supreme Court, at such time and place as is or may be prescribed by law. Each judge, after assignment, shall reside in the district to which he is assigned. Sec. 4. That the present Chief Justice and his associates are hereby vested with power and authority, and they are hereby directed, to divide said Territory into five judicial districts, and make such assignments of the judges provided for in the first section of this act as shall in their judgment be meet and proper.”

Section 1852 of the Compiled Laws of New Mexico of 1884 is as follows: "When any justice of the Supreme Court shall be absent from his district, or shall be in any manner incapacitated from acting or performing any of his duties of judge or chancellor, in his district, or from holding court therein, any other justice of the Supreme Court may perform all such duties, hear and determine all petitions, motions, demurrers, grant all rules and interlocutory orders and decrees, as also all extraordinary writs in said district."

It appears to us that this enactment was within the power of the legislative assembly under the Revised Statutes, and that it is not inconsistent with the provision for the assignment of the judges to particular districts and their residence therein.

By the organic act and the Revised Statutes, the whole of the judicial power of the Territory was vested in the Supreme Court, District and Probate Courts and justices of the peace; and the Supreme Court and District Courts possessed common law and chancery jurisdiction. The Supreme Court of the Territory held that the judicial power which was thus vested in plenary terms in the District Courts was to be exercised in

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