ample jurisdiction for the ascertainment and enforcement of their rights, saying to them, however, that they might provide themselves with so much of the machinery of local self-government as might to them seem proper, subject alone to the reserved right of congress to disapprove of so much of such local regulations as that body might deem inexpedient. This being the relation between the inferior and superior jurisdiction, was it not competent for the legislature, by and with the consent of congress (and without that consent it could do nothing), to provide that certain forms of action should be tried in the territorial courts sitting in the several counties for the trial of causes arising under the laws of the territory, unless it should appear that by reason of local prejudice a fair and impartial trial could not be had in the local territorial court, in which event such suit should be brought, under the existing law, into the federal court. The territorial legislature having enacted the provision, and congress having assented to or approved it, what power is there to object? There is not the slightest suggestion, then, that such provision would contravene any requirement or limitation found in the constitution of the United States. Such a provision would not have been in violation of any act of congress. That body had already provided that "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."

Certain restrictions have been imposed from time to time. In the very act from which the above quotation is taken, it is provided that no law shall be passed interfering with the primary disposal of the soil, that no taxes shall be imposed upon the property of the United States, and that the property of nonresidents shall not be taxed higher than the property of residents. Numerous restrictive acts have from time to

time been enacted; among others, the act, already referred to, prohibiting special legislation; but the act under discussion is not, as we have seen, special legislation, nor is it pretended that it contravenes in terms any act of congress. Is it, then,-or, rather, was it at the date of the legislation creating our local and territorial courts, -a "rightful subject of legislation," within the purview of the enabling act? The validity of its provisions seems to me to be so clear as not to admit of argument, unless, indeed, something is to be said of the contention that it was not within the power of the legislature to establish a judicial system of local courts without covering the whole ground of local jurisdiction; that it must either adopt a complete system or decline it altogether. But there is nothing in the relations existing between the territory and the national government, or in the policy of congress as disclosed by its legislation, that requires this election. On the contrary, every circumstance surrounding that relation points to a different conclusion. On the one hand, the sovereign power relating to the internal as well as to the external affairs of the territory resides with the people of the whole country as represented in congress. It was perfectly competent for the nation, or parental government, to bestow whatever power of local self government might seem consistent with the welfare of the people of the territory, and to withhold such as it was not deemed proper to bestow. On the other hand, it was equally competent for the territory to accept or reject the conferred privileges, or to accept. any part or to decline any part. It does not follow that because the powers of the legislature were made to include all rightful subjects of legislation, the legislature was bound to legislate on every rightful subject of legislation or to legislate on none. The legislature was authorized to cover so much of the ground as it thought proper, subject to the correlative power of

congress to disprove and to annul such legislation in whole or in part. This change of venue act must, therefore, be considered as an integral part of the local legislation on the general subject of territorial courts. It must be treated precisely as if it formed a part of the first legislation on the subject. I do not think it affects the character or force of the act to say that the legislature, having heretofore undertaken to provide a system for the trial of such matters by local courts different from the court authorized by the act of congress, could not afterward restore to the federal courts the jurisdiction those courts had before the establishment of the territorial courts. There is nothing in the former legislation that is beyond the control of the legislature. Suppose the legislature should repeal all legislation giving the courts jurisdiction of this character. It is admitted that in that event the jurisdiction would revert to the federal courts. But the jurisdiction of these federal courts, so far as territorial matters are concerned, is left entirely to the territorial legislature; for the supreme court has decided in the most unequivocal terms that, subject to a few express or implied conditions in the organic act, the practice, pleadings, as well as jurisdiction, of the territorial courts were intended to be left to the territorial assemblies. Clough v. Curtis, 134 U. S. 368; Hornbuckle v. Toombs, 18 Wall. 652.

I come now to the third and last proposition, which is that the writ of prohibition does not lie when there is other proper remedy, as by appeal, writ of error, or certiorari. High, Extr. Rem. 771; Ex parte Warmouth, 17 Wall. 64;, 2 Hill, 363; 79 N. Y. 591. Numerous authorities might be cited in support of this proposition, but they would add nothing to the perfectly apparent reason for the rule. There are quite a number of writs that are denominated extraordinary, among them the writ of mandamus, injunction, and

prohibition; and of these three the writs of mandamus and injunction have come into more common use. They are consequently to be regarded no longer as extraordinary writs. But the writ of prohibition is in law and in fact and in experience an extraordinary writ. This territory has been organized for nearly half a century, and yet this is the first time that a judge, sitting in his chambers, has issued his fiat to another district judge, sitting in open court, commanding him to adjourn the trial in which he was engaged. It is extraordinary, too, in the fact that able counsel have searched the books in vain for a single precedent. I agree that the writ has been frequently issued by a single judge for and on behalf of the court of which the judge issuing the writ was a member. One judge of the court may issue it for the court, but he issues it to a court of inferior jurisdiction. Not a single case can be referred to in which a district judge has issued the writ to the judge of another district, or one circuit judge to another circuit judge. But my contention is that this writ can not be issued as a substitute for an appeal. There are some propositions so clear that it is difficult to support them by argument or illustration. And this is one of them. I have endeavored to submit argument and authority showing that where appeal lies there is no necessity for this proceeding. I shall now take the present case as an illustration. A suit in ejectment is pending in a district of the territory. The defendant has interposed his demurrer or motion to dismiss for want of jurisdiction. The demurrer or motion has been overruled. After a week spent in the trial, a judgment is rendered, from which an appeal lies to the supreme court, where his remedy will be full, ample, and complete. Instead, however, of availing himself of this plain and adequate remedy, he goes to the judge of another district, and procures ▼ from him an order on the trial judge to suspend until

the supreme court shall have passed upon the question of jurisdiction. Again, a party is indicted by the district court sitting for the trial of causes arising under the laws of the territory for assault on a mail carrier. The defendant pleads to the jurisdiction. His plea is overruled, and he appeals to a neighboring judge for a writ of prohibition, and the case is sent to the supreme court. Or a party is indicted for murder, and pleads to the jurisdiction, alleging that the offense was comitted in a county outside of that in which the indictment was found. The issues on this plea being found against him, he applies for a writ of prohibition. But it is unnecessary to pursue this line any further. The introduction of this doctrine will bring anarchy to our judicial system.

There is one other view of this question that to my mind demands serious consideration. The same body, to wit, the legislature of the territory which passed the prohibition act, passed also the change of venue act. It is admitted that the suit which this writ is sought to prohibit is properly pending in the court if the legislature had power to confer the jurisdiction. To maintain the jurisdiction, therefore, of the court to issue this writ, is to say that the legislature may by one act attempt to confer jurisdiction on a court, and may by another act authorize a different court to absolutely prohibit the exercise of that jurisdiction, for it must not be forgotten anywhere in this investigation that the court to which this writ has been directed is not attempting to usurp a jurisdiction. It is simply exercising a jurisdiction conferred or attempted to be conferred upon it by the legislature, and, moreover, a jurisdiction invoked by both parties to this litigation. Mr. Elliott, at page 547 of his work on Appellate Procedure, distinctly lays down the doctrine that where a party wrongfully obtains a change of venue he is precluded from denying the jurisdiction which he has