Here the reinstatement will issue unless the department can prove that the suspension is proper. This kind of a proceeding is highly penal in nature (although it is not a criminal action), State ex rel. Delgado, Sheriff v. Leahy, 30 N.M. 221, 231 P. 197 (1924), therefore the Legislature may have regarded the additional show cause hearing as a necessary protection of a state officer's rights. The usual cry we hear is "Lack of due process!
See, State ex rel. Parks v. Ryan, 1918, 24 N.M. 176, 173 P. 858; and State ex rel. Davis v. District Court of Fifth Judicial District, 1960, 67 N.M. 215, 354 P.2d 145. A seeming exception to the rule, as stated in State ex rel. Delgado v. Leahy, 1924, 30 N.M. 221, 231 P. 197, 199, "* * * where something remains to be done, and where it is necessary in order to effectuate the object of the writ, that which has already been done may be undone" is not applicable to the facts of this case. Therefore, we hold that prohibition is not proper.
Prohibition is a preventive rather than a corrective remedy, and it issues only to prevent a further act and not to undo an act already performed. State ex rel. Delgado v. Leahy, 30 N.M. 221, 231 P. 197; State ex rel. Parks v. Ryan, 24 N.M. 176, 173 P. 858. Compare State ex rel. City of Albuquerque v. Johnson, 45 N.M. 480, 116 P.2d 1021. Our statute, § 22-9-6, supra, gives the district judge extensive power over the report of the commissioners in condemnation proceedings, and the court may not only review the report of the commissioners upon written exceptions filed, but is authorized to make such orders as right and justice may require.
We think that decision is controlling in the matter before us, See Harness v. Myers, 143 Okla. 147, 288 P. 285, and Knox v. McMillan, Okla., 272 P.2d 1040, and is in accord with the decisions of other states on similar questions and related matters. See, for instance, State ex rel. Delgado v. Leahy, 30 N.Mex. 221, 231 P. 197; State v. Awalt, 21 N.Mex. 510, 156 P. 407, and the discussion of similar California statutes in the case of In re Burleigh, 145 Cal. 35, 78 P. 242. A suit to remove a person from office and to suspend him therefrom before his guilt has been judicially established is harsh in its application and, in some of its aspects, penal in character.
There the writ issued. State ex rel. Delgado v. Leahy, 30 N. M 221, 231 P. 197. A prerogative of the Crown by letters patent prevails in foreign countries whereby suspension from office may be had through the ipsi dixit of the ruling power notwithstanding foreign recognition of property right in office and the grant of it for life. Not so in America.
If the inferior court or tribunal has jurisdiction of both the subject matter and of the person where necessary, the writ of prohibition will not issue, but lacking such jurisdiction the writ will issue as a matter of right. For other New Mexico cases upon the subject, see Tapia v. Martinez, 4 N.M. 329, 16 P. 272; Lincoln-Lucky Lee Mining Co. v. District Court, 7 N.M. 486-506, 38 P. 580; Pickering v. Justice of the Peace in and for Precinct No. 2 of San Juan County, 16 N.M. 37, 113 P. 619; Parsons Mining Co. v. McClure, 17 N.M. 694, 133 P. 1063; State ex rel. Harvey v. Medler, 19 N.M. 252, 142 P. 376; City of Roswell v. Richardson, 21 N.M. 104, 152 P. 1137; New Mexico-Colorado Coal Mining Co. v. Eighth Judicial District Court, 21 N.M. 728, 158 P. 489; Crist v. Abbott, 22 N.M. 417, 163 P. 1085; State ex rel. Park v. Ryan, 24 N.M. 176, 173 P. 858; State ex rel. Delgado v. Leahy, 30 N.M. 221, 231 P. 197. Relator in her petition does not suggest lack of jurisdiction over the person as a basis for issuing the writ of prohibition.
of the mortgaged premises and the disposition of the proceeds thereof, and directed the manner of the sale, and, also, by a later order confirmed the sale upon the due report thereof by the officials appointed to conduct the same, and by said confirmation order directed the delivery of the deed on or before Monday, October 24, 1927, that being the last day of the redemption period for the relator, the Rex Investment Company, the mortgagor. And the act of said delivery will be merely ministerial and not judicial, and therefore not subject to interference or to be arrested by a writ of prohibition, as held by this court in Dobson v. Westheimer, 5 Wyo. 34, 36 P. 626. If we might assume that the principle announced in said case might be subject to exceptions, such as would justify the exercise of the power of the court by writ of prohibition to consider a mere ministerial act in connection with a preceding judicial act in such a way as to undo the latter because without jurisdiction (see State v. District Judge, 30 N.M. 221, 231 P. 197; Havemeyer v. Court, 84 Cal. 327, 24 P. 121.) the circumstances of the instant case do not, in our opinion, present any unusual or exceptional situation which might properly interfere with the application of the rule announced as aforesaid by this court in said cause.
The statute, in our opinion, is clear; so clear, as we view it, that no rule of statutory construction need be drawn to its aid. In the case of State v. Leahy, 231 P. 197, a New Mexico case, it was held that the citation ordered by the statute to be served on the accused was the basis for the court's jurisdiction. The Supreme Court of New Mexico, speaking through Chief Justice Parker, said:
225 P. 961. The statute must be strictly construed; W.C.S. 1920, Sec. 5532; People v. Dolan, 5 Wyo. 243; Baker v. County Commissioners, 9 Wyo. 51; State v. Friars, (Wash.) 39 P. 104; Burke v. Knox, (Utah) 206 P. 712; State v. Leahy, 231 P. 197; Gibson v. Campbell, (Wash.) 241 P. 21. The petition did not state facts sufficient to constitute cause for removal, for the reason that the board complained of had gone out of existence, and the acts of a board are not the acts of an individual; 11 Cyc. 384; a county commissioner may exercise the duties of his office until his successor has been elected and qualified; 15 C.J. 452; 22 R.C.L. 487; 23 Am. Eng. Enc. Law, 2nd Ed. 379; Monnier v. Godbold, 5 L.R.A.N.S. 463. Acts of an individual member merge into acts of the board; 22 R.C.L. 569; Board v. Record Co., 228 P. 1103; Company v. School Dist., 79 Mo. App. 665; State v. Kennedy, (Kan.)
255 P. 961; Holdridge v. Fields, (Mo.) 275 S.W. 642. The statute is penal and must be strictly construed; W.C.S. 1920, Sec. 5532; People v. Dolan, 5 Wyo. 245; Baker v. County Commissioners, 9 Wyo. 51; State v. Friars, (Wash.) 39 P. 104; Burke v. Knox, (Utah) 206 P. 712; State v. Leahy, (N.M.) 231 P. 197; Gibson v. Campbell, (Wash.) 241 P. 21. The petition does not state facts sufficient to constitute a cause of action or grounds for removal of defendant; the individual acts of a member are merged in the action of the board; 22 R.C.L. Sec. 165, p. 487; Monnier v. Godbold, (La.) 40 So. 604; Commissioners v. Seawell, (Okla.)