section withdrawing any other jurisdiction than that named in Draper v. United States, undoubtedly Congress has the right to forbid the introduction of liquor and to provide punishment for any violation thereof. Couture, Jr., v. United States, 207 U. S. 581. It is true that only a per curiam opinion was filed in that case, and the judgment was affirmed on the authority of United States v. Rickert, 188 U. S. 432; McKay v. Kalyton, 204 U. S. 458, but an examination of the record shows that its facts are similar to those in the present case. See also an opinion by Shiras, District Judge, in United States v. Mullin, 71 Fed. Rep. 682, and one by Circuit Judge Van Devanter, speaking for the Circuit Court of Appeals for the Eighth Circuit, in Rainbow v. Young, 161 Fed. Rep. 835. Without pursuing the discussion further, we are of opinion that the District Court erred in its ruling, and the judgment

is

Reversed.

COMMISSIONERS OF SANTA FÉ COUNTY v. TERRITORY OF NEW MEXICO EX REL. COLER. SAME v. SAME.

APPEALS FROM THE SUPREME COURT OF THE TERRITORY OF NEW MEXICO.

Nos. 42, 43. Submitted November 29, 1909.-Decided December 20, 1909.

Although a defense to the merits if pleaded in the original action might have prevented rendition of the judgment, it cannot be urged to prevent mandamus from issuing to enforce the judgment. Under the laws of New Mexico, where there is no possible excuse for a board of county commissioners not to comply with a judgment, a peremptory writ of mandamus in the first instance is authorized. Where the bill shows it is clearly the purpose of defendant officers not to perform a duty imposed upon them, demand is not necessary before suit for mandamus.

215 U.S.

Argument for Appellant.

Where parts of a county have been detached by statute which provides for the detached portions bearing their proportion of indebtedness, the counties to which those portions are attached are not necessary parties to a suit to recover obligations of the original county. After judgment the original county which is primarily liable may enforce contribution through the proper officers for the proportionate share of the detached portions.

In this case it was held that the facts justified the amount of the tax levy required by the writ of mandamus as modified by the Supreme Court of the Territory.

Practice of the courts in a Territory is based upon local statutes and procedure and this court is not disposed to review the decisions of the Supreme Court of the Territory in such cases, and, following the Supreme Court of the Territory of New Mexico, this court holds that the power of that court to affirm or reverse and remand includes the power to modify, and extends to proceedings in mandamus. 14 New Mexico, 134, affirmed.

THE facts are stated in the opinion.

Mr. A. B. Renehan for appellant:

The peremptory writ of mandamus should not have been issued without a hearing or opportunity for respondents to be heard. The writ is confined to the requirement of official duties of a ministerial character. 2 Spelling, Ex. Rem., §§ 1432-1434, 1437.

The court in mandamus proceedings can inquire into the original judgment so far as to ascertain whether the claim is legally payable out of the taxes sought to be applied. Railroad Co. v. New Mexico, 72 Pac. Rep. 14; Brownsville v. Loague, 129 U. S. 505.

The mandamus cannot be issued as there was no demand before suit. Spelling, Ex. Rem., §§ 1381, 1447. The action should have been directed against the treasurer of the county and not against the county board. Sections 4021, 4062, C. L. 1897; and see § 343; Bass v. Taft, 137 U. S. 752; Ex parte Rowland, 104 U. S. 615.

Where the facts are, as in this case, disputed, a peremptory writ cannot issue in the first instance. 13 Ency. Pl. & Pr. 722;

and see also 13 Ency. Pl. & Pr. 773–775; State v. Goodfellow,

1 Mo. App. 145.

The Supreme Court of New Mexico had no jurisdiction to modify the judgment of the lower court by changing the theory and cause of action. Under C. L. 1897, § 897, the power of the appellate court is limited to revising or modifying a judgment only in actions at law or equity and not in such proceedings as mandamus. Territory v. County Commissioners, 5 New Mex. 17. There being no statute in the Territory providing for jury trials in mandamus common-law procedure governs and the Supreme Court can only reverse or affirm. State v. Suwannee County, 21 Florida, 1; Castle v. Lawler, 47 Connecticut, 340; and see § 10, C. L. 1897, p. 43, act of September 30, 1850.

The remedy given by the statute, § 343, C. L. 1897, is exclusive. Fourth Nat. Bank v. Francklyn, 120 U. S. 751; 7 Ency. Pl. & Pr. 372.

The pleading being on information and belief is insufficient as the pleader had knowledge of the facts. Jones v. Pearl Mining Co., 20 Colorado, 417; Nichols v. Hubert, 150 Missouri, 620.

The counties of Rio Arriba and Torrance were necessary parties under the existing laws of the Territory. Subsection 5, C. L. 1897, subs. 175; § 6, ch. 114, L. 1905; ch. 70, L. 1903; ch. 24, L. 1903; ch. 20, L. 1903.

Under the act of June 8, 1878, c. 168, 20 Stat. 101, explanatory of § 1889, Rev. Stat., the Territory was prohibited from issuing these bonds. Lewis v. Pinia, 155 U. S. 67. Although held valid in Coler v. County Commissioners, 6 New Mex. 88, the question of their validity under the act was not raised. The validating act of June 16, 1897, c. 30, 29 Stat. 487, although construed in Utter v. Franklin, 172 U. S. 498, does not validate these bonds as it is too indefinite to determine which bonds are validated. There is no element of res judicata in this case. The judgments are not attacked, only the method of enforcement and the excessive amount of the

levy. Railway Co. v. Territory, 72 Pac. Rep. 14; United States v. Macon County, 99 U. S. 591; Brownsville v. Loague, 129 U. S. 502.

Mr. Charles A. Spiess for appellee.

MR. JUSTICE MCKENNA delivered the opinion of the court.

These appeals are prosecuted to review judgments of the Supreme Court of New Mexico, modifying, and affirming as modified, judgments of mandamus of the District Court of Santa Fé County, commanding the appellants to levy a tax of ten mills in each case on each dollar of taxable property in the county, to pay certain judgments for the amount of principal and interest upon bonds issued by the county. The cases are here on separate records, but as they are submitted together we dispose of them, as the Supreme Court of the Territory did, in one opinion.

The proceedings were commenced by petitions, which are alike, except as to the amount of the judgment recovered. In No. 42 it is alleged to be $60,926.02; in No. 43 it is alleged to be $74,358.19. Both judgments were recovered in the District Court of the county in which the petitioners (appellees here) were complainants and the board of county commissioners were defendants. It is alleged that the judgments ordered the sums due as above stated, and the interest thereon to become due at five per cent per annum from the date of the judgments, "to be assessed and levied upon and out of the taxable property situate in the said county of Santa Fé, and to cause the same to be collected in the manner provided by law, and to pay the same out of the treasury of said county to the said complainants, their legal representatives or assignees, upon the delivery of a proper voucher therefor." Default in the payment of each of the judgments and its requirements is alleged, and that the board held a meeting during the month of July or August, 1905, and made a levy

for various territorial purposes, but "wholly failed and refused to make any levy whatsoever, and still fail and refuse to make any levy whatsoever, for the said year of 1905, for the purpose of raising funds to pay the aforesaid judgment and interest and costs thereon." The want of a plain, speedy and adequate remedy at law is also alleged. Peremptory writs of mandamus were issued without a hearing.

Subsequently the appellants filed a petition in each case in the District Court and prayed "that the peremptory order be suspended herein, and that they be permitted to show cause and be heard before the order and writ are made permanent."

To sustain this prayer they alleged that at the date of the rendition of the judgments of appellees all of the property within the county of Santa Fé subject to taxation was liable for the payment of its pro rata of the judgments; that the thirty-fifth legislative assembly "eliminated" portions of Santa Fé County, and attached them respectively to the county of Rio Arriba and the county of Torrance, and made them subject to their proportions of the indebtedness of Santa Fé County; that the taxable property situate therein is liable for its part of the indebtedness; that the county commissioners are without jurisdiction to levy and assess taxes upon it, and that the peremptory writs include only "the property and territory within the present boundaries" of Santa Fé, and do not pretend to include that in Rio Arriba and Torrance; that by a mandamus issued out of the district court on the twenty-fifth day of January, 1901, the county commissioners were required to levy a tax upon the taxable property in Santa Fé sufficient in amount to produce a sum of $135,284.19, with interest thereon from the twenty-fourth of September, 1900, until paid at five per cent per annum, and $30.00 costs, the said sum being for the amount of the judgments in cases 4091 and 4092 of the district court of Santa Fé County; that the board obeyed the writ and levied eighty-two mills on each dollar of taxable valuation, and