In re Sawyer,
124 U.S. 200 (1888)

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U.S. Supreme Court

In re Sawyer, 124 U.S. 200 (1888)

In re Sawyer

Argued December 12, 1887

Decided January 9, 1888

124 U.S. 200


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

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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,"


"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,"


"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."

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