A court of equity has no jurisdiction of a bill to stay criminal
proceedings.
A court of equity has no jurisdiction of a bill to restrain the
removal of a public officer.
The circuit court of the United States has no jurisdiction or
authority to entertain a bill in equity to restrain the mayor and
committee of a city
Page 124 U. S. 201
in Nebraska from removing a city officer upon charges filed
against him for malfeasance in office, and an injunction issued
upon such a bill, as well as an order committing the defendants for
contempt in disregarding the injunction, is absolutely void, and
they are entitled to be discharged on habeas corpus.
This was a petition for a writ of habeas corpus, in behalf of
the mayor and eleven members of the city council of the City of
Lincoln, in the State of Nebraska, detained and imprisoned in the
jail at Omaha in that state by the Marshal of the United States for
the District of Nebraska under an order of attachment for contempt,
made by the circuit court of the United States for that district
under the following circumstances:
On September 24, 1887, Albert L. Parsons presented to the
circuit judge a bill in equity against said mayor and councilmen,
the whole of which, except the title, the address, and the
signature, was as follows:
"Your petitioner is, and for more than fifteen years last past
has been a citizen of the United States, and a resident and citizen
of the State of Nebraska, and as such citizen has been and is
entitled to the equal protection of the laws, and to life, liberty,
and property, nor could he be deprived thereof without due process
of law, nor denied the same within the jurisdiction of the United
States or of the State of Nebraska."
"On the ___ day of April, 1886, this complainant was duly and
legally elected to the office of Police Judge of the City of
Lincoln, in Lancaster County, Nebraska, and soon thereafter did
duly qualify and enter into the discharge of his duties as such
police judge, and ever since and yet at this time complainant has
held and exercised all the functions and performed all the duties
of the said office, and for the last six months and more all of the
respondents except the said Andrew J. Sawyer have been and yet are
the duly elected, qualified, and acting councilmen of the said
city, and the said Sawyer has been and yet is the duly elected,
qualified, and acting mayor of the said city."
"On the ___ day of August, 1887, and for a long time prior
thereto, there was a certain ordinance in the said city, in
Page 124 U. S. 202
full force, relating to the removal from office of any official
of the said city, and which said ordinance provided that no officer
of said city should be put upon trial for any offense charged
against him except before all the members of the said city
council."
"On the ___ day of August, 1887, one John Sheedy, Gus. Saunders,
and A. J. Hyatt filed in writing with the city clerk of said city
certain charges against this complainant, charging this complainant
with appropriating the moneys of the said city, and a copy of which
is hereto attached and made a part hereof, [
Footnote 1] and said mayor thereupon referred the said
matter
Page 124 U. S. 203
to a committee of only three of the members of the said council,
to make a finding of fact and law upon the said charges, and said
committee of three caused a notice to be served upon your
complainant, requiring him to appear and defend himself before
them, and complainant did appear before said committee, and then
objected to the jurisdiction of the said committee, that they had
no right or authority to render a verdict of the fact against him
or give judgment of law upon the said charges or to hear or
determine the said trial, and thereupon the said committee reported
back the said charges to said mayor and council that the said
committee, under the charter to the said city, had no right or
authority to render a verdict or judgment upon the said charges.
But the said Sheedy and Saunders, who are, and for more than ten
years have been, common gamblers in the said city, and are men of
large wealth and
Page 124 U. S. 204
influence in said city council at once and on the ___ day of
August, 1887, and long after said complaint against this
complainant had been filed, and long after said committee had
reported back to said mayor and city council that they had no
right, power, or authority to hear said trial, or to render either
verdict or judgment in said proceedings, did procure the passage of
another and different and
ex post facto ordinance,
granting to the said committee of three, instead of the council of
twelve members, as by said ordinance required, the right and power
to try the facts as alleged in said charges, and make a report
thereon, and, if in their judgment they saw fit, to report to said
mayor and city council that the office of the police judge should
be declared vacant, and that the said mayor should fill the office
of the said police judge, now occupied by your complainant, with
some other person."
"And after the passage of this
ex post facto law, said
committee of three assumed jurisdiction to render a verdict of
fact, and to hear and determine the said charges, and add thereto a
conclusion of law, and notified this complainant to again appear
and defend himself before the said committee, and this complainant
then and there again objected to the jurisdiction of said committee
to make any finding of facts against him or to render any judgment
or report thereon upon the ground that said new ordinance was
ex post facto and that said committee had no
jurisdiction."
"On the nineteenth day of September, 1887, the said committee,
having heard before themselves, denying to complainant a trial to a
jury, and the evidence for the prosecution of the said action by
certain gamblers and pimps, no material evidence for the
prosecution being offered to them otherwise, did render a finding
of fact against this complainant, and recommending to said mayor
and city council that the office of police judge should be declared
vacant, and that the said mayor should fill the said office by the
appointment of some other person than complainant, and found that
said ordinance was not
ex post facto, and the said mayor
and city council have set the matter for final vote on Tuesday, the
twenty-seventh day of September, 1887, and threaten and declare
that on the said day they will
Page 124 U. S. 205
declare the office of the said complainant vacant, without
hearing or reading the evidence taken before said committee, and
appoint some other person to fill the same, and which report
untruthfully states that all their evidence is filed therewith, and
fraudulently so to suppress a certain book offered in evidence by
complainant, which book is in the handwriting of said Gus.
Saunders, and which is done to favor and aid and protect said
gamblers, and to fraudulently obtain the removal of complainant
from his said office."
"This complainant says that all of the said proceedings, trial,
verdict, and other acts and doings of the said city council, and
the ordinance approved as well as the said ordinance approved
August __, 1887, were and are illegal and void, and contrary to and
in conflict with and prohibited by the Constitution of the United
States, whereby, among other things, it is provided that no person
shall be deprived of life, liberty, or property without due process
of law, nor deny to any person within its jurisdiction equal
protection of the law, nor be adjudged of or tried for any offense
by an
ex post facto law, and complainant says that
forasmuch as by the Constitution of the United States it is
provided that no person shall be deprived of life, liberty, or
property without due process of law, and that in all criminal
prosecutions the accused shall have the right of process to compel
the attendance of witnesses in his behalf, and a speedy trial by an
impartial jury of the county in which the offense is alleged to
have been committed, and that no
ex post facto law shall
be passed, and that all of said rights shall remain inviolate, but
such rights being denied by said ordinance and proceedings
aforesaid to this complainant, he has been and is and is threatened
to be deprived of such rights without due process of law, and that
the same is
ex post facto law, within the meaning of the
Constitution of the United States, and which protection has nor is
not accorded to this complainant, he has been by said proceedings,
and yet is, deprived of the equal protection of the laws."
"All of which illegal and oppressive acts and things are in
violation of and in conflict with the Constitution of the
United
Page 124 U. S. 206
States, and ought to be redressed by the judicial powers
thereof. Wherefore complainant prays that a writ of injunction may
be allowed by your honor to be issued out of this honorable court,
under the seal thereof, directed to the respondents and all
thereof, that they proceed no further with the charges against this
complainant, and that no vote be had by the city council or the
said defendants upon the pretended findings of the facts, verdict,
or report, and filed September 19, 1887, with the said city clerk,
handed in by Councilman Billingsley, and that said defendants, nor
any of them, do not declare said office vacant, or in any way or
manner proceed further with said charges, nor appoint any person to
fill said office; that said defendants may appear and answer this
your complainant's bill, but answer under oath being expressly
waived; that on the final hearing of this action said injunction be
made perpetual, and that the defendants pay the costs of this
action, and that the complainant have such other, further, and
different relief as justice may require."
Annexed to the bill was an affidavit of Parsons that he had read
it, and knew all the facts therein set forth, and that the same
were true.
On reading the bill, the circuit judge ordered that the
defendants show cause before the circuit court way a preliminary
injunction should not issue as prayed for, "and that in the
meantime, and until the further order of the court, they be
restrained from doing any of the matters sought to be
enjoined."
In accordance with the prayer of the bill and the order of the
judge, an injunction was forthwith issued and served upon the mayor
and councilmen. After this, at a meeting of the city council held
for the purpose, the mayor and councilmen proceeded to take up and
consider the charges against Parsons, and, after considering the
evidence, passed a resolution by which they
"find that said Parsons received a number of fines for the
violation of the city ordinances, which he failed to turn in to or
report to the city treasurer at times required by law, and
specified in
Page 124 U. S. 207
the charges against said Parsons,"
and
"that his arrangement with the gamblers and prostitutes that, if
they would pay a fine monthly, they would not otherwise be
molested, was in direct violation of law, and calculated to bring
the city government into disgrace,"
and
"therefore confirm the report of the committee who reported to
this counsel on the charges against said Parsons, and declare the
office of police judge of the City of Lincoln vacant, and request
the mayor to fill the office with some competent person."
Thereupon the mayor nominated, and the council on motion
confirmed H. J. Whitmore to be police judge to fill the vacancy,
and the mayor issued an order to the city marshal, informing him
that Whitmore had been duly qualified and given bond and been
commissioned as police judge, and directing him to see that he be
duly installed in his office. Parsons declining to recognize the
action of the city council or to surrender the office, the city
marshal forcibly ejected him and installed Whitmore.
Upon an affidavit of Parsons charging the mayor and councilmen
with willful and contemptuous violation of the injunction, stating
the above facts, and accompanied by a copy of a notice to him from
the city clerk, setting forth the resolution of the city council,
and the nomination and confirmation of Whitmore, as well as by a
copy of the mayor's order to the city marshal, the circuit court
issued a rule to the mayor and councilmen to show cause why they
should not be attached for contempt. Upon their answer to that
rule, under oath, producing copies of the ordinances under which
they acted (the material parts of which are set forth in the margin
[
Footnote 2]),
Page 124 U. S. 208
admitting and justifying their disregard of the injunction, and
suggesting a want of jurisdiction in the circuit court to make the
restraining order, the court granted an attachment for their
arrest, and, upon a hearing, found them guilty of violating the
injunction, and adjudged that six of them pay
Page 124 U. S. 209
fines of $600 each, and the others fines of $50 each, beside
costs, and in default of payment thereof � and committed to the
custody of the marshal until the fines and costs should be paid or
they be otherwise legally discharged. They did not pay the fines or
costs, and were therefore taken and held in custody by the
marshal.
The petition for a writ of habeas corpus alleged
"That the court had no jurisdiction of said suit commenced by
said Albert F. Parsons against your petitioners, and that said
restraining order was not a lawful order, and that said judgment of
said court that your petitioners were in contempt, and the sentence
of said court that your petitioners pay a fine and suffer
imprisonment for violating said restraining order, is void, and
wholly without the jurisdiction of the circuit court of the United
States, and in violation of the Constitution of the United
States,"
and further alleged
"as special circumstances, making direct action and intervention
of this court necessary and expedient, that it would be useless to
apply to the Circuit Court of the United States for the District of
Nebraska for a writ of habeas corpus, because both the circuit and
district judges gave it as their opinion in the contempt
proceedings that the said restraining order was a lawful order, and
within the power of the court to make."
MR. JUSTICE GRAY, after stating the facts as above, delivered
the opinion of the Court.
The question presented by this petition of the mayor and
councilmen of the City of Lincoln for a writ of habeas corpus is
whether it was within the jurisdiction and authority of the circuit
court of the United States, sitting as a court of equity, to make
the order under which the petitioners are held by the marshal.
Under the Constitution and laws of the United States, the
distinction between common law and equity, as existing in
Page 124 U. S. 210
England at the time of the separation of the two countries has
been maintained, although both jurisdictions are vested in the same
courts.
Fenn v. Holme,
21 How. 481,
62 U. S.
484-487;
Thompson v. Railroad
Co., 6 Wall. 134;
Heine v.
Levee Commissioners, 19 Wall. 655.
The office and jurisdiction of a court of equity, unless
enlarged by express statute, are limited to the protection of
rights of property. It has no jurisdiction over the prosecution,
the punishment, or the pardon of crimes or misdemeanors or over the
appointment and removal of public officers. To assume such a
jurisdiction, or to sustain a bill in equity to restrain or relieve
against proceedings for the punishment of offenses or for the
removal of public officers is to invade the domain of the courts of
common law or of the executive and administrative department of the
government.
Any jurisdiction over criminal matters that the English Court of
Chancery ever had became obsolete long ago, except as incidental to
its peculiar jurisdiction for the protection of infants, or under
its authority to issue writs of habeas corpus for the discharge of
persons unlawfully imprisoned. 2 Hale P.C. 147;
Gee v.
Pritchard, 2 Swanston 402, 413; 1 Spence Eq.Jur. 689, 690;
Attorney General v. Utica Ins. Co., 2 Johns.Ch. 371,
378.
From long before the Declaration of Independence, it has been
settled in England that a bill to stay criminal proceedings is not
within the jurisdiction of the Court of Chancery, whether those
proceedings are by indictment or by summary process.
Lord Chief Justice Holt, in declining, upon a motion in the
Queen's Bench for an attachment against an attorney for
professional misconduct, to make it a part of the rule to show
cause that he should not move for an injunction in chancery in the
meantime, said:
"Sure chancery would not grant an injunction in a criminal
matter under examination in this court, and if they did, this court
would break it and protect any that would proceed in contempt of
it."
Holderstaffe v. Saunders, Cas.temp.Holt 136, 6 Mod.
16.
Lord Chancellor Hardwicke, while exercising the power of
Page 124 U. S. 211
the Court of Chancery incidental to the disposition of a case
pending before it, of restraining a plaintiff who had, by his bill,
submitted his rights to its determination, from proceeding as to
the same matter before another tribunal, either by indictment or by
action, asserted in the strongest terms the want of any power or
jurisdiction to entertain a bill for an injunction to stay criminal
proceedings, saying "This Court has not originally and strictly any
restraining power over criminal prosecutions," and, again:
"This Court has no jurisdiction to grant an injunction to stay
proceedings on a mandamus, nor to an indictment, nor to an
information, nor to a writ of prohibition, that I know of."
Mayor & Corporation of York v. Pilkington, 2 Atk.
302, 9 Mod. 273;
Montague v. Dudman, 2 Ves.Sr. 396,
398.
The modern decisions in England by eminent equity judges concur
in holding that a court of chancery has no power to restrain
criminal proceedings unless they are instituted by a party to a
suit already pending before it, and to try the same right that is
in issue there.
Attorney General v. Cleaver, 18 Ves. 211,
220;
Turner v. Turner, 15 Jurist 218;
Saull v.
Browne, L.R. 10 Ch. 64;
Kerr v. Preston, 6 Ch.D.
463.
Mr. Justice Story, in his Commentaries on Equity Jurisprudence,
affirms the same doctrine. 2 Story Eq.Jur. § 893. And in the
American courts, so far as we are informed, it has been strictly
and uniformly upheld, and has been applied alike whether the
prosecutions or arrests sought to be restrained arose under
statutes of the state, or under municipal ordinances.
West v.
Mayor, &c. or New York, 10 Paige 539;
Davis v.
American Society for Prevention of Cruelty to Animals, 75 N.Y.
362;
Tyler v. Hamersley, 44 Conn. 419, 422;
Stuart v.
Board of Supervisors, 83 Ill. 341;
Devron v. First
Municipality, 4 La.Ann. 11;
Levy v. Shreveport, 27
La.Ann. 620;
Moses v. Mayor &c. of Mobile, 52 Ala.
198;
Gault v. Wallis, 53 Ga. 675;
Phillips v. Mayor
&c. of Stone Mountain, 61 Ga. 386;
Cohen v. Goldsboro
Commissioners, 77 N.C. 2;
Waters Peirce Oil Co. v. Little
Rock, 39 Ark. 412;
Spink v. Francis, 19 F. 670, and
20 F. 567;
Suess v. Noble, 31 F. 855.
Page 124 U. S. 212
It is equally well settled that a court of equity has no
jurisdiction over the appointment and removal of public officers,
whether the power of removal is vested, as well as that of
appointment, in executive or administrative boards or officers, or
is entrusted to a judicial tribunal. The jurisdiction to determine
the title to a public office belongs exclusively to the courts of
law, and is exercised either by certiorari, error, or appeal, or by
mandamus, prohibition,
quo warranto, or information in the
nature of a writ of
quo warranto, according to the
circumstances of the case, and the mode of procedure, established
by the common law or by statute.
No English case has been found of a bill for an injunction to
restrain the appointment or removal of a municipal officer. But an
information in the Court of Chancery for the regulation of Harrow
School, within its undoubted jurisdiction over public charities,
was dismissed so far as it sought a removal of governors unlawfully
elected, Sir William Grant saying: "This Court, I apprehend, has no
jurisdiction with regard either to the election or the amotion of
corporators of any description."
Attorney General v.
Clarendon, 17 Ves. 491, 498.
In the courts of the several states, the power of a court of
equity to restrain by injunction the removal of a municipal officer
has been denied in many well considered cases.
Upon a bill in equity in the Court of Chancery of the State of
New York by a lawfully appointed inspector of flour, charging that
he had been ousted of his office by one unlawfully appointed in his
stead by the governor, and that the new appointee was insolvent,
and praying for an injunction, a receiver, and an account of fees
until the plaintiff's title to the office could be tried at law,
Vice-Chancellor McCoun said: "This Court may not have jurisdiction
to determine that question, so as to render a judgment or a decree
of ouster of the office," but he overruled a demurrer upon the
ground that the bill showed a
prima facie title in the
plaintiff.
Tappen v. Gray, 3 Edw.Ch. 450. On appeal,
Chancellor Walworth reversed the decree "upon the ground that at
the time of the filing of this bill, the Court of Chancery had no
jurisdiction
Page 124 U. S. 213
or power to afford him any relief." 9 Paige 507, 509, 512. And
the chancellor's decree was unanimously affirmed by the Court of
Errors upon Chief Justice Nelson's statement that he concurred with
the chancellor respecting the jurisdiction of courts of equity in
cases of this kind. 7 Hill 259.
The Supreme Court of Pennsylvania has decided that an injunction
cannot be granted to restrain a municipal officer from exercising
an office which he has vacated by accepting another office, or from
entering upon an office under an appointment by a town council
alleged to be illegal, but that the only remedy in either case is
at law by
quo warranto. Hagner v. Heyberger, 7
Watts & Serg. 104;
Updegraff v. Crans, 47 Penn.St.
103.
The Supreme Court of Iowa, in a careful opinion delivered by
Judge Dillon, has adjudged that the right to a municipal office
cannot be determined in equity upon an original bill for an
injunction.
Cochran v. McCleary, 22 Ia. 75.
In
Delahanty v. Warner, 75 Ill., 185, it was decided
that a court of chancery had no jurisdiction to entertain a bill
for an injunction to restrain the mayor and aldermen of a city from
unlawfully removing the plaintiff from the office of superintendent
of streets and appointing a successor, but that the remedy was at
law by
quo warranto or mandamus.
In
Sheridan v. Colvin, 78 Ill., 237, it was held that a
court of chancery had no jurisdiction to restrain by injunction a
city council from passing an ordinance unlawfully abolishing the
office of commissioner of police, and the court, repeating in great
part the opening propositions of Kerr on Injunctions, said:
"It is elementary law that the subject matter of the
jurisdiction of a court of chancery is civil property. The court is
conversant only with questions of property and the maintenance of
civil rights. Injury to property, whether actual or prospective, is
the foundation on which the jurisdiction rests. The court has no
jurisdiction in matters merely criminal or merely immoral, which do
not affect any right to property; nor do matters of a political
nature come within the jurisdiction of the court of chancery, nor
has the court of
Page 124 U. S. 214
chancery jurisdiction to interfere with the duties of any
department of government except under special circumstances and
when necessary for the protection of rights of property."
78 Ill. 247.
Upon like grounds, it was adjudged in
Dickey v. Reed,
78 Ill. 261, that a court of chancery had no power to restrain by
injunction a board of commissioners from canvassing the results of
an election, and that orders granting such an injunction, and
adjudging the commissioners guilty of contempt for disregarding it,
were wholly void. And in
Harris v. Schryock, 82 Ill. 119,
the court, in accordance with its previous decisions, held that the
power to hold an election was political, and not judicial, and
therefore a court of equity had no authority to restrain officers
from exercising that power.
Similar decisions have been made, upon full consideration, by
the Supreme Court of Alabama, overruling its own prior decisions to
the contrary.
Beebe v. Robinson, 52 Ala. 66;
Moulton
v. Reid, 54 Ala. 320.
The statutes of Nebraska contain special provisions as to the
removal of officers of a county or of a city.
"All county officers, including justices of the peace, may be
charged, tried, and removed from office for official misdemeanors"
of certain kinds, by the board of county commissioners, upon the
charge of any person.
"The proceedings shall be as nearly like those in other actions
as the nature of the case admits, excepting where otherwise
provided in this chapter. . . . The complaint shall be by an
accuser against the accused, and shall contain the charges with the
necessary specifications under them, and be verified by the
affidavit of any elector of the state that he believes the charges
to be true."
No formal answer or replication is required,
"but, if there be an answer and reply, the provisions of this
[the?] statute relating to pleadings in actions shall apply. . . .
The questions of fact shall be tried as in other actions, and, if
the accused is found guilty, judgment shall be entered removing the
officer from his office, and declaring the latter vacant, and the
clerk shall enter a copy of the judgment in the election book."
Nebraska Comp.Stat. c. 18, art. 2.
Page 124 U. S. 215
The nature of this proceeding before county commissioners has
been the subject of several decisions by the supreme court of the
state.
In the earliest one, the court declared,
"The proceeding is
quasi-criminal in its nature, and
the incumbent undoubtedly may be required to appear without delay,
and show cause why he should not be removed. But questions of fact
must be tried as in other actions, and are subject to review on
error. The right to a trial upon distinct and specific charges is
secured to everyone thus charged with an offense for which he is
liable to be removed from office. . . . Neither is it sufficient
for the board to declare and resolve that the office is vacant.
There must be a judgment of ouster against the incumbent."
State v. Sheldon, 10 Neb. 452, 456. The authority
conferred upon county commissioners to remove county officers has
since been held not to be an exercise of strictly judicial power
within the meaning of that provision of the Constitution of
Nebraska which requires that "the judicial power of this state
shall be vested in a supreme court, district courts," and other
courts and magistrates therein enumerated. Constitution of
Nebraska, art. 6, � 1;
State v. Oleson, 15 Neb. 247. But
it has always been considered as so far judicial in its nature that
the order of the county commissioners may be reviewed on error in
the district court of the county, and ultimately in the supreme
court of the state.
State v. Sheldon, above cited;
Minkler v. State, 14 Neb. 181;
State v. Meeker,
19 Neb. 444, 448.
See also Sioux City & Pacific Railroad v.
Washington County, 3 Neb. 30, 41; Nebraska Code of Civil
Procedure §§ 580-584, 599; Crim.Code (ed. 1885), § 572.
This view does not substantially differ from that taken in other
states, where similar orders have been reviewed by writ of
certiorari, as proceedings of an inferior tribunal or board of
officers, not commissioned as judges, yet acting judicially, and
not according to the course of the common law.
Charles v. Mayor
&c. of Hoboken, 27 N.J.Law 203;
People v. Fire
Commissioners, 72 N.Y. 445;
Donahue v. County of
Will, 100 Ill. 94.
Page 124 U. S. 216
In Nebraska, as elsewhere, the validity of the removal of a
public officer, and the title of the person removed, or of a new
appointee, to the office may be tried by
quo warranto or
mandamus. Nebraska Comp.Stat., c.19, §§ 13, 24, c. 71; Code of
Civil Procedure, §§ 645, 704;
Cases of Sheldon, Oleson,
and
Meeker, above cited;
Queen v. Saddlers' Co.,
10 H.L.Cas. 404;
Osgood v. Nelson, L.R. 5 H.L. 636.
The provisions of the statutes of Nebraska as to the removal of
officers of cities of the first class (of which the city Of Lincoln
is one) are more general, simply conferring upon the mayor and
council "power to pass any and all ordinances not repugnant to the
constitution and laws of the state, and such ordinances to alter,
modify, or repeal," and "to provide for removing officers of the
city for misconduct" and to fill any vacancy occurring in the
office of police judge or other elective office by appointment by
the mayor, with the assent of the council. Nebraska Comp.Stat. c.
13, §§ 11, 15; Stat. 1887 c. 11, §§ 8, 68, 114.
The original ordinance of the City Council of Lincoln, made part
of the record, appears to have been framed with the object that the
rules established by statute for conducting proceedings for the
removal of county officers should be substantially followed in the
removal of city officers elected by the people.
After ordaining that whenever any such officer
"shall be guilty of any willful misconduct or malfeasance in
office, he may be removed by a vote of two-thirds of all the
members elected to the council,"
it provides that no such officer shall be removed unless
"charges in writing, specifying the misconduct or nature of the
malfeasance, signed by the complainant, and giving the name of at
least one witness besides the complainant, to support such charges,
shall be filed with the city clerk, President of the council, or
mayor,"
and be read at a regular meeting of the council, and a certified
copy thereof, with a notice to show cause against the removal, be
served upon the officer five days before the next meeting; that if
he does not then appear, and file a denial in writing, "the said
charge and specifications shall be taken as true, and the council
shall
Page 124 U. S. 217
declare the office vacant;" but if he does, the council shall
adjourn to some day for his trial,
"and if, upon the trial of said officer, said council shall be
satisfied that he is guilty of any misconduct willfully, or
malfeasance in office, they shall cause such finding to be entered
upon their minutes, and shall declare said office vacant and shall
proceed at once to fill such vacancy in the manner provided by
statute and ordinance,"
and that all proceedings and notices in the matter of such
charges may be served by the city marshal or by a policeman, and
the "service and return shall be in the manner provided by law for
the service of summonses in justice's courts."
The only material change made in that ordinance by the ordinance
of August 24th is that the trial of the officer, and the finding of
his guilt, may be either by the whole council, or by a "committee
of the council to whom such charges shall have been referred." In
either case, the finding is to be entered upon the minutes of the
council, "and the council shall declare the said office vacant and
the said officer removed therefrom," and certify the fact to the
mayor, whereupon the vacancy shall be filled by appointment by the
mayor, with the assent of the council.
The whole object of the bill in equity filed by Parsons, the
police judge of the City of Lincoln, against the mayor and
councilmen of the city, upon which the circuit court of the United
States made the order for the disregard of which they are in
custody, is to prevent his removal from the office of police judge.
No question of property is suggested in the allegations of matters
of fact in the bill, or would be involved in any decree that the
court could make thereon.
The case stated in the bill is that charges in writing against
Parsons for appropriating to his own use moneys of the city were
filed, as required by the original ordinance, by Sheedy and
Saunders (Hyatt, not otherwise named in those charges, would seem
to have signed them as the additional witness required by that
ordinance); that the charges were referred by the mayor to a
committee of three members of the council; that upon notice to the
accused, and his appearance before that committee, he objected that
the committee had no
Page 124 U. S. 218
authority to try the charges, and the committee so reported to
the council; that thereupon Sheedy and Saunders procured the
passage of the amended ordinance, giving a committee, instead of
the whole council, power to try the charges, and report its finding
to the council; that after the passage of this ordinance, and
against his protest, the committee resumed the trial, and, in order
to favor and protect his accusers and fraudulently to obtain his
removal from office, made a report to the city council falsely
stating that they reported all the evidence, and fraudulently
suppressing a book which he had offered in evidence and finding him
guilty and recommending that his office be declared vacant and be
filled by the appointment of some other person, and that the mayor
and city council set the matter down for final vote at a future day
named, and threatened and declared that they would then, without
hearing or reading the evidence taken before the committee, declare
the office vacant, and appoint another person to fill it.
The bill prays for an injunction to restrain the Mayor and
Councilmen of the City of Lincoln from proceeding any further with
the charges against Parsons or taking any vote on the report of the
committee, or declaring the office of police judge vacant, or
appointing any person to fill that office.
The matters of law suggested in the bill as grounds for the
intervention of the circuit court are that the amended ordinance
was an
ex post facto law, and that all the proceedings of
the city council and its committee, as well as both ordinances,
were illegal and void and in conflict with and violation of those
articles of the Constitution of the United States which provide
that no person shall be deprived of life, liberty, or property
without due process of law; that in all criminal prosecutions, the
accused shall enjoy the right to a speedy and public trial by an
impartial jury of the state and district where the crime shall have
been committed, and to have compulsory process for obtaining
witnesses in his favor, and that no state shall pass any
ex
post facto law, or deprive any person of life, liberty, or
property without due process of law, or deny to any person within
its jurisdiction the equal protection of the laws.
Page 124 U. S. 219
The fifth and sixth amendments to the Constitution of the United
States, which provide that no person shall be deprived of life,
liberty, or property without due process of law and secure to the
accused in criminal prosecutions trial by jury, and compulsory
process for obtaining witnesses in his favor, apply to the United
States only, and not to laws or proceedings under the authority of
a state.
Spies v. Illinois, 123 U.
S. 131, and that provision of the Constitution which
prohibits any state to pass
ex post facto laws applies
only to legislation concerning crimes.
Calder v.
Bull, 3 Dall. 386.
If the ordinances and proceedings of the city council are in the
nature of civil, as distinguished from criminal, proceedings, the
only possible ground, therefore, for the interposition of the
courts of the United States in any form is that Parsons, if removed
from the office of police judge, will be deprived by the State of
life, liberty, or property without due process of law in violation
of the Fourteenth Amendment to the Constitution, or that the state
has denied him the equal protection of the laws, secured by that
amendment.
It has been contended by both parties in argument that the
proceeding of the city council for the removal of Parsons upon the
charges filed against him is in the nature of a criminal
proceeding, and that view derives some support from the judgment of
the Supreme Court of Nebraska in
State v. Sheldon, 10 Neb.
452, 456, before cited. But if the proceeding is of a criminal
nature, it is quite clear, for the reasons and upon the authorities
set forth in the earlier part of this opinion, that the case stated
in the bill is wholly without the jurisdiction of any court of
equity. If those proceedings are not to be considered as criminal
or
quasi-criminal, yet if, by reason of their form and
object and of the acts of the legislature and decisions of the
courts of Nebraska as to the appellate jurisdiction exercised in
such cases by the judicial power of the state, they are to be
considered as proceedings in a court of the state (of which we
express no decisive opinion), the restraining order of the circuit
court was void because in direct contravention of the peremptory
enactment of Congress that the writ of injunction
Page 124 U. S. 220
shall not be granted by any court of the United States to stay
proceedings in any court of a state except when authorized by a
bankrupt act. Act March 2, 1793, c. 22, § 5, 1 Stat. 335;
Diggs v.
Wolcott, 4 Cranch 179;
Peck v.
Jenness, 7 How. 612,
48 U. S. 625;
Rev.Stat. § 720;
Watson v.
Jones, 13 Wall. 679,
80 U. S. 719;
Haines v. Carpenter, 91 U. S. 254;
Dial v. Reynolds, 96 U. S. 340;
Sargent v. Helton, 115 U. S. 348.
But if those proceedings are to be considered as neither
criminal nor judicial, but rather in the nature of an official
inquiry by a municipal board entrusted by law with the
administration and regulation of the affairs of the city, still,
their only object being the removal of a public officer from his
office, they are equally beyond the jurisdiction and control of a
court of equity. The reasons which preclude a court of equity from
interfering with the appointment or removal of public officers of
the government from which the court derives its authority apply
with increased force when the court is a court of the United
States, and the officers in question are officers of a state. If a
person claiming to be such an officer is, by the judgment of a
court of the state, either in appellate proceedings or upon a
mandamus or
quo warranto, denied any right secured to him
by the Constitution of the United States, he can obtain relief by a
writ of error from this Court.
In any aspect of the case, therefore, the circuit court of the
United States was without jurisdiction or authority to entertain
the bill in equity for an injunction.
As this Court has often said:
"Where a court has jurisdiction, it has a right to decide every
question which occurs in the cause, and whether its decision be
correct or otherwise, its judgment, until reversed, is regarded as
binding in every other court. But if it act without authority, its
judgments and orders are regarded as nullities. They are not
voidable, but simply void."
Elliott v.
Peirsol, 1 Pet. 328,
26 U. S. 340;
Wilcox v.
Jackson, 13 Pet. 498,
38 U. S. 511;
Hickey v.
Stewart, 3 How. 750,
44 U. S. 762;
Thompson v.
Whitman, 18 Wall. 457,
85 U. S.
467.
We do not rest our conclusion in this case in any degree upon
the ground, suggested in argument that the bill does
Page 124 U. S. 221
not show a matter in controversy of sufficient pecuniary value
to support the jurisdiction of the circuit court, because an
apparent defect of its jurisdiction in this respect, as in that of
citizenship of parties, depending upon an inquiry into facts which
might or might not support the jurisdiction, can be availed of only
by appeal or writ of error, and does not render its judgment or
decree a nullity.
Prigg v. Adams, 2 Salk. 674, Carthew
274;
Fisher v. Bassett, 9 Leigh 119, 131-133;
Des
Moines Navigation Co. v. Homestead Co., 123 U.
S. 552.
Neither do we say that in a case belonging to a class or subject
which is within the jurisdiction both of courts of equity and of
courts of law, a mistake of a court of equity, in deciding that in
the particular matter before it there could be no full, adequate,
and complete remedy at law, will render its decree absolutely
void.
But the ground of our conclusion is that whether the proceedings
of the city council of Lincoln for the removal of the police judge
upon charges of misappropriating moneys belonging to the city are
to be regarded as in their nature criminal or civil, judicial or
merely administrative, they relate to a subject which the circuit
court of the United States, sitting in equity, has no jurisdiction
or power over, and can neither try and determine for itself nor
restrain by injunction the tribunals and officers of the state and
city from trying and determining. The case cannot be distinguished
in principle from that of a judgment of the common bench in England
in a criminal prosecution, which was
coram non judice, or
the case of a sentence passed by the circuit court of the United
States upon a charge of an infamous crime without a presentment or
indictment by a grand jury.
Case of the Marshalsea, 10
Rep. 68, 76;
Ex Parte Wilson, 114 U.
S. 417;
Ex Parte Bain, 121 U. S.
1.
The circuit court being without jurisdiction to entertain the
bill in equity for an injunction, all its proceedings in the
exercise of the jurisdiction which it assumed are null and void.
The restraining order, in the nature of an injunction it had no
power to make. The adjudication that the defendants were
Page 124 U. S. 222
guilty of a contempt in disregarding that order is equally void,
their detention by the marshal under that adjudication is without
authority of law, and they are entitled to be discharged.
Ex
Parte Rowland, 104 U. S. 604;
Ex Parte Fisk, 113 U. S. 713;
In re Ayers, 123 U. S. 443,
123 U. S.
507.
Writ of habeas corpus to issue.
[
Footnote 1]
"To the Honorable Mayor and Council of the City of Lincoln:"
"Your petitioners, John Sheedy and A. Saunders, respectfully
represent to this honorable body, that they are citizens and
resident taxpayers of the City of Lincoln, and your petitioners
would further represent that on the 13th day of July, 1887, they
employed a skillful accountant, one M. M. White, a resident and
taxpayer of this city, to examine into the dockets and files and
reports of A. L. Parsons, Police Judge of this City of Lincoln, to
learn whether said A. L Parsons, Police Judge, was making true and
proper statements to the city of the business done by him as police
judge, and to further ascertain whether or not said A. L. Parsons,
Police Judge, had turned over to the city and county treasurers all
moneys coming into his hands as fines and properly belonging to the
city and county."
"And your petitioners say that after a proper and careful
examination of the files and dockets and reports of said A. L.
Parsons, Police Judge, they have ascertained beyond question that
said A. L. Parsons, Police Judge, has appropriated to his own use
and benefit large sums of money which is the property of the City
of Lincoln, and that he now has, and keeps for his own use, moneys
which he has collected as fines from persons brought before him as
police judge for violating the city ordinances. And your
petitioners say that the said A. L. Parsons, as police judge,
collected fines for the violation of the city ordinances in the
months of August, September, October, November, and December, 1886,
which fines and moneys he has appropriated to his own use, and has
utterly failed to keep any record or account of the same, or to
account to the city, or turn over to the city treasurer any of the
moneys so appropriated, as is required by law. And your petitioners
say that in the months of April, May, and June, 1887, the said A.
L. Parsons received fines from divers persons, as police judge,
which he has appropriated to his own use, and had wholly failed to
keep any record of said fines, or to account to the city for the
same. And your petitioners say that the said A. L. Parsons, as
police judge, collected fines from divers persons in the month of
May, 1887, and the months of March and April, 1887, and the month
of September, 1886, which fines he has appropriated to his own use
and benefit, and has wholly failed to keep any record of the said
fines, or to make any report to the City of the same."
"And your petitioners say that the said A. L. Parsons has been
police judge since April, 1886, and that during that time he has
collected fines for the violation of statutes of Nebraska to the
amount of $329, according to his dockets, and up to the nineteenth
day of July, 1887, he had turned in to the county Treasurer of
Lancaster County but the sum of $15; whereas he had in his
possession on the first day of July, 1887, the said sum of $314,
which properly belonged to the county. And your petitioners say
that on said nineteenth day of July, 1887, the day on which the
accountant M. M. White completed the investigation of the said
police judge's dockets, said Parsons paid into the county treasury
the sum of $195, which leaves due the county the sum of $119, which
was in his possession on the nineteenth day of July, 1887."
"Your petitioners therefore ask that the honorable mayor and
council may appoint a committee of your honorable body, and that a
time and place be mentioned on which to take testimony inquiring
into the conduct of A. L. Parsons as police judge, and to
investigate the management of his office, and to give the said A.
F. Parsons and your petitioners notice of such time and place, and
your petitioners will appear with the evidence and testimony
proving the facts hereinbefore stated."
"A. SAUNDERS"
"JOHN SHEEDY"
"A. J. HYATT"
[
Footnote 2]
The original ordinance contained these sections:
"SEC. 1. Whenever any officer of the City of Lincoln, whose
office is elective, shall be guilty of any willful misconduct or
malfeasance in office, he may be removed by a vote of two-thirds of
all the members elected to the council, provided, that no such
officer shall be removed from office unless charges in writing
specifying the misconduct or nature of the malfeasance, signed by
the complainant, and giving the name of at least one witness
besides the complainant, to support such charges, shall be filed
with the city clerk, president of the council, or mayor, which
charge and specifications shall be read at a regular meeting of the
council, and a copy thereof, certified by said clerk, president of
the council, or mayor, accompanied with a notice to show cause at
the next regular meeting of said council why he shall not be
removed from office, shall be served upon the officer so accused at
least five days before the time fixed to show cause."
"SEC. 2. In case the said accused officer shall neglect to
appear and file a denial in writing, or render a reason for not
doing so at the first regular meeting of said council after being
duly notified, the said charge and specifications shall be taken as
true, and the council shall declare the office vacant."
"SEC. 3. In case said officer shall file a denial of said charge
and specifications in writing, the council shall adjourn to some
day for the trial of said officer, and if, upon the trial of said
officer, said council shall be satisfied that he is guilty of any
misconduct willfully, or malfeasance in office, they shall cause
such finding to be entered upon their minutes, and shall declare
said office vacant, and shall proceed at once to fill such vacancy
in the manner provided by statute and ordinance."
"SEC. 4. All proceedings and notice in the matter of such
charges may be served by the marshal or any policeman, and the
return of any such officer shall be sufficient evidence of the
service thereof; service and return shall be in the manner provided
by law for the service of summonses in justice's courts."
By the ordinance of August 24, 1887, § 3 of the former ordinance
was repealed, and the following amendment substituted:
"In case said officer shall file a denial of the said charges
and specifications in writing, the council, or the committee of the
council, to whom said charges shall have been referred, shall
appoint some day for the trial of said officer, and if, upon the
trial of said officer, said council or said committee shall be
satisfied that he is guilty of any misconduct willfully, or
malfeasance or misfeasance in office, the council shall cause its
findings, or the findings of said committee, to be entered upon the
minutes of the council, and the council shall declare the said
office vacant, and the said officer removed therefrom. The council
shall then forthwith cause the mayor to be notified that the said
office is vacant, and that said officer is so removed. When the
mayor is so notified, the said office shall be filled by
appointment of the mayor by the assent of the council, and such
person so appointed shall hold said office until the next general
election, and as in such case by statute and ordinance made and
provided. If the officer against whom said charges are made shall
appear and defend against the same, he shall be held and deemed to
have waived all irregularities of proceedings, if any, as do not
affect the merits of his defense."
MR. JUSTICE FIELD, concurring.
I concur in the judgment of this Court that the circuit court of
the United States had no jurisdiction to interfere with the
proceedings of the Mayor and Common Council of Lincoln for the
removal of the police judge of that city. The appointment and
removal of officers of a municipality of a state are not subjects
within the cognizance of the courts of the United States. The
proceedings detailed in the record in the present case were of such
an irregular and unseemly character, and so well calculated to
deprive the officer named of a fair hearing, as to cause strong
comment. But however irregular and violent, the remedy could only
be found under the laws of the state and in her tribunals. The
police judge did not hold his office under the United States, and
in his removal the Common Council of Lincoln violated no law of the
United States. On no subject is the independence of the authorities
of the state, and of her municipal bodies, from federal
interference in any form more complete than in the appointment and
removal of their officers.
I concur also in what is said in the opinion of the Court as to
the want of jurisdiction of a court of equity over criminal
proceedings, but do not perceive its application to the present
case. The proceedings before the common council were not criminal
in the sense to which the principle applies. That body was not a
court of justice, administering criminal law, and it is only to
criminal proceedings in such a tribunal that the authorities cited
have reference. In many cases, proceedings, criminal in their
character, taken by individuals or organized bodies of men,
tending, if carried out, to despoil one of his property or other
rights, may be enjoined by a court of equity.
Page 124 U. S. 223
MR. CHIEF JUSTICE WAITE, dissenting.
I am not prepared to decide that an officer of a municipal
government cannot, under any circumstances, apply to a court of
chancery to restrain the municipal authorities from proceeding to
remove him from his office without the authority of law. There may
be cases, in my opinion, when the tardy remedies of
quo
warranto, certiorari, and other like writs will be entirely
inadequate. I can easily conceive of circumstances under which a
removal, even for a short period, would be productive of
irremediable mischief. Such cases may rarely occur and the
propriety of such an application may not often be seen, but if one
can arise and if the exercise of the jurisdiction can ever be
proper, the proceedings of the court in due course upon a bill
filed for such relief will not be void, even though the grounds on
which it is asked may be insufficient. If the court can take
jurisdiction of such a case under any circumstances, it certainly
must be permitted to inquire, when a bill of that character is
filed, whether the case is one that entitles the party to the
relief he asks, and if necessary to prevent wrong in the meantime,
to issue in its discretion a temporary restraining order for that
purpose. Such an order will not be void, even though it may be
found on examination to have been improvidently issued. While in
force, it must be obeyed, and the court will not be without
jurisdiction to punish for its contempt. Such in my opinion was
this case, and I therefore dissent from the judgment which has been
ordered.
MR. JUSTICE HARLAN, dissenting.
I concur in the views expressed by THE CHIEF JUSTICE and unite
with him in dissenting from the opinion and judgment of the Court.
The proceedings inaugurated by the defendants against Parsons are
certainly not of a criminal nature, nor are they embraced by the
provision of the statute which declares that
"The writ of injunction shall not be granted by any court
Page 124 U. S. 224
of the United States to stay proceedings in any court of a state
except in cases where such injunction may be authorized by any law
relating to proceedings in bankruptcy."
Rev.Stat. § 720.
The Act of March 3, 1887, declares that the circuit courts of
the United States shall have original cognizance, concurrent with
the courts of the several states, of all suits of a civil nature at
common law or in equity arising under the Constitution of the
United States.
Parson's suit is confessedly of a civil nature, and it proceeds
upon the ground that what the defendants propose to do will violate
rights secured to him by the Constitution of the United States. It
is therefore a suit arising under the Constitution of the United
States. Whether the circuit court, sitting
in equity,
could properly grant to the plaintiff the relief asked is not a
question of jurisdiction within the rule that orders, judgments, or
decrees are void where the court which passed them was without
jurisdiction. It is rather a question as to the exercise of
jurisdiction. As this suit is one arising under the Constitution of
the United States, and is of a civil nature, the inquiry in the
mind of the circuit judge when he read the bill was whether,
according to the principles of equity, a decree could be properly
rendered against the defendants?
Osborn v.
Bank of the United States, 9 Wheat. 738,
22 U. S. 858.
The statute provides that
"Suits in equity shall not be sustained in either of the courts
of the United States in any case where a plain, adequate, and
complete remedy may be had at law."
But if one of those courts should render a final decree in
behalf of the plaintiff notwithstanding he had a plain, adequate,
and complete remedy at law, would the decree be a nullity? Could it
be assailed collaterally as void upon the ground that no case was
made justifying relief in equity? When a party has disregarded a
preliminary injunction issued by a circuit court of the United
States, has been fined for contempt, and is in custody for failing
to pay the fine, must he be discharged upon habeas corpus in every
case where it appears upon the face of the bill that the plaintiff
has a plain, adequate, and complete remedy at law? Those questions,
it
Page 124 U. S. 225
seems to me, should receive a negative answer. I do not
understand the Court to decide that the circuit court could not,
under any circumstances or by any mode of proceeding, enforce the
rights which the plaintiffs contend are about to be violated by the
defendants, but only that the court below, sitting in equity, had
no authority to interfere with the proposed action of the
defendants. It seems to me that this question would properly arise
upon appeal from any final decree rendered in the cause, and is not
determinable upon writ of habeas corpus.
-----
Upon the delivery of the opinions in this case, Mr. Attorney
General stated to the Court, in open court, that he would take
notice of the order awarding the writ, and that he would order the
discharge of the prisoners without requiring the issue of the
writ.
