*1 TERM,. 1887. Syllabus. of the adversary inter which proceeding parries, constitutes a suit in which the takes on the form of controversy a judicial Because under the proceeding. Colorado law the appoint- of the ment commissioners is a in the suit after step the filing of the and the service of petition summons upon defend- ant. is an It adversary judicial from the proceeding begin- The ning. commissioners to ascertain the is compensation one of the only modes which it is to be determined. The is, a suit therefore, at law proceeding from time of the filing and the service of petition process .upon defendant. The involved precise question here was passed dealt with satisfactorily the Circuit in the Circuit Judge Court for District of Colorado in the case of the Colorado Midland Co.v. Railway Jones, 29 Fed. 193, and Rep. Circuit Court for the Western District of Michigan by Brown, Judge, case District of The Mineral Range Railroad Co. The Detroit and Lake Co., Superior Copper 25 Fed. Rep.
The case was properly removed, the motion to remand erroneously granted.. Circuit Court thereon is accordingly
Reversed, and the cause remanded to the Circuit directions to therein. proceed
IN RE SAWYER and Others.
ORIGINAL. Argued December 1887. Decided 9, 1888. January A equity jurisdiction court of has no stay of a bill to proceedings. criminal equity' A court has no of a bill to restrain removal public officer. The Circuit Court of the United States has no authority entertain a bill in to restrain the committee of a SAWYER.
IN EE Case. Statement him upon charges filed removing a officer in Nebraska bill, such office; issued and an malfeasance disregarding contempt in committing defendants an order well as discharged to be void, they are entitled absolutely injunction, *2 corpus. on habeas in of behalf writ of habeas corpus, for a awas petition This the of city council the of city members eleven and the mayor and imprisoned detained Nebraska, of the State in of Lincoln n of. the marshal that state Omaha the at the jail of an order under Nebraska, of the .District for States United of the Circuit made by for contempt, attachment circum- the following under district, States United : stances F. Parsons presented Albert 1887, 24, On September council- and said mayor against a bill Judge Circuit- and the' title, address which, of except whole men, follows: aswas signature, last fifteen than years more is, and “Tour petitioner and a States, of a citizen been, the.United has resident! past has1 citizen as such Nebraska, and of of State and citizen and laws, of the to'the entitled equal protection and been thereof' could he deprived nor life, liberty property; within the saíne denied nor of law, due process without of Nebraska. State the United States of “ was duly this 1886, complainant of April, On tijie-day of of the city judge of the office police elected to and legally and soon Nebraska, County, Iancaster Lincoln,'in thereafter duties as! his of into the discharge and enter did ify duly qua com- time, this at since, yet and ever such judge; police functions performed all exercised has held plainant months six the last and for office; the said of duties all J. Andrew the said except all respondents more elected, qualified are duly been have yet Sawyer has Sawyer the said the said city, councilmen acting elected, mayor and acting qualified is the duly been and yet 4he said city. time a long and for of August, the-day On city ordinance there was certain thereto, prior TERM,. 2U2 Statement the Case.
full force, to the removal relating official of the said and which said ordinance city, provided officer of said should be trial for offence city put upon charged him, all the members the said except council. city
“On John the-day 1887, one Gus. August, Sheedy, Saunders and A. J. filed in with the Hyatt clerk writing of said certain this Gity charges against complainant, charging this complainant of the said appropriating moneys and' a of which is hereto city, attached and made copy a part and said hereof;1 referred the said matter thereupon Mayor City To the Honorable and Council of the : Lincoln petitioners, Saunders, Sheedy Your respectfully represent John A. an.d body, this taxpayers honorable are citizens and resident Lincoln; your petitioners represent would further that on the day July, they employed 13th accountant, a skilful ,M. one M. White, taxpayer city, a resident and of this to examine into dockets and *3 reports Parsons, police files and of judge city Lincoln, A. IT. of this of to Parsons, police learn judge, making whether said A. P. proper was true and city police statements to the judge, business done him as and to Parsons, further police ascertain whether or not said A. li. judge, had city county turned over to the moneys and coming treasurers all into his properly belonging city hands as fines and county. to the and your petitioners say proper And that after and careful examination of reports Parsons, the files and police dockets and of said A. P. judge, they question beyond Parsons, have ascertained police judge, that said A. P. has appropriated large to his money own use and benefit sums of which is the property city Lincoln, of of keeps and that he has now and for his own moneys use persons he which has collected as fines brought police judge violating city him as ordinances. your petitioners say Parsons, And that police the said A. P. judge, as ordinances, city collected fines the violation of in the months of September, October, August, December, 1886, November and which fines moneys appropriated use, he has utterly to his own and has failed to keep any record or account of same city, or to account to the or turn city moneys over to the appropriated, treasurer required so as is by law. your petitioners say And April, June, May in the months of 1887, persons, said A. P. police fines from Parsons received divers as judge, appropriated use, which he has wholly his own. and had failed to keep any of said or to record fines account to the for the same. your petitioners say IJarsons, And police the said A. judge, P. person's May, collected from divers fines the month of and the
IN RE. SAWYER. of
Statement the Case. ato of committee three of the members of only the said council, to make of fact and law finding the said upon ; charges of committee three caused a notice said to be served upon your him to complainant, requiring defend appear himself before did them; complainant before said appear committee, and then to the objected said committee, had no right render a authority verdict of the fact him, or law give judgment said charges, or to hear dr determine a,nd said trial; the- thereupon said committee the said reported back to said charges and council, that the said committee, under the charter to the had no city, right to render authority a verdict or judg- ment the said But the said charges. Sheedy Saún- ders, are, who for more than ten have years been, common in the said gamblers' and are men city, wealth large April, 1887, months of March ancl September, month of which appropriated tines he has benefit, his own use and wholly and has failed keep any fines, record of the said or to report make to the the same. your petitioners And say that the said police A. 3?. Parsons has been judge April, since during and that that time he has collected fines for the violation of statutes of Nebraska to $329, the amount of according dockets, up to 'his day July, 1887, the 19th he had turned in to the county treasurer of County Lancaster but $15; the sum of whereas he had possession in his day on July, 1887, the 1st $314, the said sum of which properly belonged county. n your petitioners And say day that-on said July, 1887, 19th day on which the accountant M. completed M. White investigation of the said police dockets, judge’s paid said Parsons into the county.treasury the sum $195, which leaves county due the $119, sum which was in his possession day on 19th July, petitioners Your therefore ask that the Mayor Honorable and Council may appoint *4 your a committee of body, honorable place and that a time and be mentioned on which to testimony take inquiring into the conduct of A. police F. judge Parsons as and investigate to management office, of his and to give said A. P. your Parsons petitioners and notice of such time place, your petitioners and appear and will with the evidence and testimony proving the facts hereinbefore stated.
A. Saunders. Siieedy. John Hyatt. A. J. TERM, 1887. Case. Statement and at once on council, in said influence city the-day after said this com- complaint against and long August, after said and committee had filed, been long had plainant and council that had said mayor city back to reported trial hear said or to render or authority no right, power did in said proceedings, procure either verdict and ex different ordinance, and post of another passage facto three, instead the council committee said to the granting ordinance said members, of twelve required, right in said and make facts as alleged charges and to try power in their saw fit, if thereon, and, judgment they a report that the office of the council to said mayor report said, and that vacant, be should declared judge police the said now occu- fill the office of police judge, should mayor other some person. complainant, by your pied “ law, this ex said com- post And after passage facto a to render verdict of three assumed jurisdiction mittee of the said and add determine charges, to hear and fact, notified this complainant a conclusion thereto committee, the said before defend himself appear again there then and again objected and this complainant to make of facts said committee finding thereon, render report any judgment him, against ex new ordinance was fa-cto, post ground had no committee jurisdiction. and that said committee, the said the 19th September, On day themselves, complainant denying heard having of the said for the evidence prosecution to a trial jury, no material evidence certain pimps, action by gamblers did render otherwise, to them offered for the being prosecution this recommending, complainant, of fact finding the office police council judge to said mayor should that the said .fill vacant, should declared other than of some person the said not ex ordinance was that said post found complainant, the mat- set council have and city and the said mayor ; facto the-27th day September, vote on Tuesday, final ter'for. will on the said day they and declare and threaten *5 IN RE SAWYER.
Statement of the Case. declare office of the said complainant vacant, without the evidence hearing reading taken before said committee, and some other fill appoint person and same, which re- states that all their port untruthfully evidence is filed there- with, and toso fraudulently a certain book suppress offered in evidence which book by complainant, is in the handwriting said and Gus. Saunders, which is done to favor and aid and said and to protect gamblers, obtain the fraudulently removal from his said complainant office. “This that all complainant of the says said proceedings, trial, verdict, and other acts and of the said doings coun- and cil, the ordinance approved-, as well as the said ordinance approved August-, 188?, were are ille- void, gal and in to, contrary conflict with, pro- hibited the Constitution by, of the United States, whereby other it is among things provided that no person shall be of life, deprived liberty without due property process.of law, nor deny within person its jurisdiction equal pro- tection of the nor be law, of or tried for adjudged offence an ex by post law; complainant that says forasmuch facto the Constitution by of the United States it is provided shall be person deprived life, liberty with- property out due of law, and process in all criminal prosecutions the accused shall have the right process the at- compel tendance witnesses in his behalf, and a trial speedy of the impartial jury which county the offence is alleged have been committed, and that no ex post law shall be facto and that all of passed, said shall remain rights but inviolate, such denied rights said being ordinance and proceedings aforesaid to this he complainant, has been and is, and is threatened to be, such deprived without rights due process law, the same is ex post within facto meaning Constitution of the United States, and which has nor is not protection accorded to this he complainant, has been proceedings, yet is, deprived equal of the laws. protection “ All of which illegal acts oppressive .and are in things of and violation in conflict with the Constitution of the United TERM,
Statement of the Case. States, to be redressed there- ought judicial powers of. that a writ of Wherefore complainant prays *6 honor to be issued out of be allowed this honor- by your may under the seal directed the thereof, able court, respondents no further with the that thereof, and all they proceed charges be and that no vote had this the complainant, city against the or the said defendants council pretended findings and filed 19th, 1887, the verdict facts, September report, handed Councilman clerk, with the said city Billingsley, nor of them do not and that said defendants declare said or inanner vacant, or further any way proceed nor to fill said office; that said appoint any person charges, and answer this said defendants your may appear complain- but answer under oath waived; ant’s bill, being expressly final of this action said on the be made hearing injunction per- and that the defendants the costs of action, this pay petual, have such further and other, differ- and .complainant the. ent relief justice may require.” was an affidavit of Annexed to the bill Parsons that he had knew all the facts therein set and that forth, and the it, read true. same were the ordered bill, the Circuit that the
On de- Judge reading Court, cause before the-Circuit show why prelimi- fendants “ for, should not issue as prayed nary injunction and until further order of the court, the time, they the mean of the matters to be restrained doing any sought enjoined.” with the of the bill the order of
In prayer accordance issued and was forthwith served judge; and counoilmen. the mayor council held for at a this,
After city meeting pur- to take and councilmen proceeded mayor up pose, after Parsons, and, consider against considering charges “ find that a resolution which the evidence, they passed for the received a number of fines violation said Parsons turn in to or which he failed to ordinances, report city treasurer at times specified required IN RE SAWYER.
Statement of the Case. “ the charges against Parsons,” said and that his arrangement with the gamblers prostitutes, that if they would pay fine would monthly not otherwise be molested, was in direct violation of law, and calculated to bring city gov- ” ernment into disgrace; and therefore confirm the report the committee who reported this council on the charges Parsons, declare the office of police judge óf vacant, Lincoln request to fill mayor office with some competent person.” Thereupon mayor nominated, and the council on motion H. confirmed, J. Whit- more to be to fill police judge, vacancy; issued an order to the city marshal, him that informing Whit- more had been duly qualified bond and given been commis- sioned as police judge, him to directing see that he be installed in his duly office. Parsons declining recognize action of the city council, or to surrender the office,the citv *7 marshal forcibly him ejected and installed Whitmore. an affidavit Upon of Parsons, the charging and mayor
councilmen with wilful and contemptuous violation of the the injunction, above stating facts, and a accompanied by copy of a notice himto from the city clerk, forth setting the resolu tion of the and city council, the nomination and confirmation of Whitmore, as well as aby of the copy mayor’s order to the marshal, the city Circuit Court issued a rule and councilmen to show cause why they should not be attached for their contempt. Upon answer to oath, that rule, under of the producing copies ordinances under acted, which they (the material of which parts are set forth in the margin,1) original ordinance contained these sections: “ any Sec. 1. Whenever officer of the Lincoln, whose office is elective, guilty any símil he wilful misconduct or office, malfeasance in may he be removed a vote of two thirds of all the members elected to council; Provided, the that no such officer'shall be removed from office charges unless writing, in specifying the misconduct or nature of the mal- feasance, signed by complainant, the giving the name of at least one complainant, witness besides the support charges, such shall be filed with clerk, president council, of the mayor, or which charge specifica- tions regular shall be read at a meeting council, of tne copy thereof, and a clerk, president certified said council, mayor, or accompanied awith TERM, 1887. oí the Case.
Statement their injunction, disregard and justifying admitting make in the Circuit a want suggesting an .attachment the court order, granted the restraining them found a guilty and, hearing, arrest; upon their of them that six pay and adjudged the injunction, violating council, why cause, he regular meeting of said next at the show notice to office, upon the officer accused be served so shall removed not be shall time fixed to show cause. days five at least “ appear neglect to and file shall officer the said accused 2. In case Sec. so, regular doing- at the first for not writing, render reason in a denial notified, charge duly being the' said after meeting of said council true, the office shall declare and the council be taken specifications shall vacant. “ specifi- charge of said file a denial shall officer In said case Sec. day adjourn trial of said to some writing, council shall in cations be satisfied council shall upon officer said trial- of said officer; and if office, they wilfully, or malfeasance guilty misconduct that he is minutes, upon declare and shall their finding to be entered cause such shall vacancy man- vacant, proceed to fill such at once shall said provided and ordinance. statute ner “ may charges matter of such proceedings and notice 4. All Sec. any such any policeman, the return of by the marshal be served thereof; return of the service service evidence be sufficient officer shall provided by service of suminonses for the law in the manner shall justice’s courts.” former- ordinance August 3 of the section By ordinance following substituted: repealed, amendment was sgjd specifica- charges file denial shall said officer In case council, council, said whom committee or the writing, tile tions in referred, day for the trial appoint some shall charges have been shall said committee council or officer said officer, of said the trial and if wilfully, malfea- guilty of misconduct he is satisfied shall be office, findings, or the its council shall cause or misfeasance sance council, committee, minutes to be entered findings of said *8 officer said the said office vacant declare the council.shall mayor to cause shall then forthwith council The therefrom. removed l)e is so removed. and that officer is vacant said the said office notified by notified, filled officeshall be mayor the said sois When appointed person council; so by of the such mayor assent election, in such case general and as the next until hold said shall provided. said officer whom If the made and and ordinance statute same, tye'held he shall appear against the and defend charges are made shall any, proceedings, as do if irregularities of all to have waived and deemed his defence.” the merits not affect IN BE SAWYEE.
Opinion of the Court. fines of six dollars hundred each, others fines fifty n dollars beside each, and in costs, default thereof payment stand committed of the marshal until the fines custody and costs be otherwise paid, should dis- legally did not charged. They fines or pay costs, and were therefore taken held in the marshal. custody by for a writ of habeas petition “that corpus, alleged court had no of said suit commenced the said jurisdiction (cid:127) Albert F. Parsons and that against your said' petitioners,- order was not a lawful restraining and that order, said judg- ment of said court that your were petitioners contempt, the sente ce court of said a fine and your petitioners pay suffer imprisonment violating order, restraining void, without the wholly of the Circuit Court of the TJnited and in States, violation of the Constitution of ” the United States; and further as circum-' alleged special stances, direct action and intervention making of this court and- that it necessary would be -useless to expedient, apply the Circuit United States for the District of Nebraska for a writ of habeas because both the Circuit corpus, and District it their in the Judges gave opinion contempt as. that the said order awas lawful order restraining and within the of the court power to make.”
Q.Mr. M. Lambertson for petitioners. Burr,
L.Mr. C. on behalf of Parsons. opposing, Me. Justice G-eat, after the cáse as above stating reported, delivered the of the court. opinion
The question this presented petition councihnen of the of Lincoln for a writ of habeas corpus is whether it within was authority Circuit' Court United States, as a court of sitting equity, to make the order under-which the are held petitioners marshal.
Under the Constitution and laws the United States, between distinction common law equity, existing vol. cxxrv —14 *9 TERM, 1887.
210 Opinion, Court. countries, the two of the time of separation at the
England vested are both jurisdictions maintained, although been has 484-487; 21 How. Holme, v. Fenn courts. same v. Levee Com Heine 134; 6 Wall. Co., v. Railroad Thompson 655. Wall. 19 missioners, en- unless of a court equity, of jurisdiction of to protection limited are statute, by express larged over prosecu- It has Qf property. rights misdemeanors, or "crimes of or the pardon tion, punishment To- officers. public of 'removal or over . a bill to' sustain a assume such jurisdiction, for punishment relieve restrain or against the- to invade is officers, of public the- removal for offences, the executive ofor common the courts domain of government. department administrative that matters, the-English- criminal over Any jurisdiction except- ágo, long obsolete became had, ever of Chancery Court for protection its peculiar as incidental habeas corpus writs issue its authority under infants, 2 Hale imprisoned. unlawfully of persons for discharge 413; Swanston, 402, Spence Pritchard, v.Gee 7; P. C. 14 2Co., Ins. Utica v. General Attorney 690; Jur. Eq. 378. Ch. Johns. ' it has Independence, of-. Declaration before long From the. criminal proceed- to stay bill a in England, settled been of Chancery, the jurisdiction within tbe not ings summary or by indictment are by those proceedings whether process. - motion in declining, Holt, Justice Chief Lord an attorney an attachment Bench Queen’s - show rule to it a make part misconduct, professional in chancery for an injunction move not he should cause not would grant chancery “Sure mean.time, said, in this- criminal, examination under matter ain it, protect- break would court this did, if they court; of it.” contempt in. Holderstaffe would proceed 6 Mod. Holt, S. C. ;136 Cas. Saunders, temp. Hardwirin', exercising power while Chancellor Lord RE
IN /SAWYER. 2Ú'. Opinion of the Court. incidental
the Court a case Chancery, disposition who. had his it,- plaintiff, restraining pending *10 submitted to its determination, bill rights proceeding bis matter before as to the same another either tribunal, by indictment or asserted action, terms the by the strongest or want to entertain a bill for an any power to criminal “This court injunction stay saying, proceedings, has not over originally, strictly, any restraining power criminal “This court has prosecutions;” again, juris to an diction to on a grant injunction manda stay proceedings mus nor nor ; indictment,; to an nor information; to a writ of that I know ; of.” & prohibition Mayor Corporation York v. 2 Atk. Pilkington, 302; S. C. 9 Mod. 273; Mon 2 Dudman, v. Ves. Sen. 398. tague
The modern decisions in eminent England, by equity judges, concur that a court of- has no holding chancery power restrain criminal unless are instituted proceedings, to a suit and to already it, the same party pending try that is in issue there. right Cleaver, General v. 18 Attorney Ves. Turner v. 220; 15 Turner, Jurist, 218; Saull v. L. R. 10 Browne, Ch. Kerr 64; v. 6 Ch. 463. Preston, D. Mr. Justice in his Story, Commentaries on Juris Equity affirms the same doctrine. prudence, 893. Jur. Story Eq. § And in the American so courts, far 'as we are it has informed, been strictly has been uniformly alike upheld, applied whether the or prosecutions arrests restrained sought arose under statutes of the State, under ordi municipal nances. West v. &c. Mayor New 10 York, 539; Paige, v. American Davis Society Prevention Cruelty Y. 75 N. Animals, 362; v. Tyler 44 Conn. Hamersley, Stuart v. Board 422; 83 Supervisors, Illinois, 341; Devron v. First 4 La. Ann. Municipality, 11; v. Levy 27 Shreveport, La. Ann. Moses 620; v. &c. Mayor Mobile, 52 Alabama, 198; Gault v. Wallis, 53 Georgia, 675; v. Phillips Mayor &c. Stone 61 Mountain, 386; Cohen Georgia, v. Goldsboro Commissioners, 77 No. 2; Car. Waters Peirce Oil v.Co. Little Arkansas, Rock, 412; Spink Francis, 19 Fed. Rep. 670, 20 Fed. 567; Suess v. Rep. Noble, 31 Fed. 855. Rep. TERM,
Opinion of tlie Court. It is well settled that a court equally has no of. juris- diction over the removal appointment public officers, whether the removal vested, well as power that of in executive or administrative appointment, boards or officers, or is entrusted to a tribunal. The judicial de- termine the title to a public belongs exclusively error, courts of and is exercised either by certiorari, or mandamus, appeal, prohibition, wa/rrcmto,or infor- quo mation the nature of a writ of quo warranto, according to the circumstances of the case, the mode of procedure established the common law or statute.
No case has been found aof bill for an English to restrain the of a removal officer. municipal But an information in the Court of for the Chancery regula tion of Harrow within School, its undoubted jurisdiction, over was charities, dismissed, so far as it public a removal sought *11 Sir William govérnors unlawfully.elected, Grant saying: “This I has court, apprehend, jurisdiction regard either to the election the amotion of corporators or. Clarendon, General v. Attorney description.” 491, 17 Ves. 498.
In the of the several the States, courts a court of power to restrain the removal of a equity by injunction municipal officer has been denied in well considered many cases. a bill in in the Court of
Upon equity State Chancery of New York aby lawfully appointed inspector flour, that he had been ousted of his office charging one by unlaw in his stead the fully appointed by governor, new was insolvent, for an appointee a praying injunction, receiver, an account of until fees, title to plaintiff’s the office could be tried at Yice Chancellor McCoun “ This said: court not have may jurisdiction determine that so as to render a or decree of question, ouster of but he overruled a office;” demurrer, upon ground that the bill showed a title in the prima plaintiff. Tap faoie 3 v. Edw. Ch. 450. On Gray, pan Chancellor Wal appeal, “ decree, worth reversed the that at the upon ground time of this bill the Court of had no filing Chancery juris- RE SAWYER. 213
IN. Opinion of Court.
diction, him afford relief.” 9 power Paige, 512. And the Chancellor’s decree was unanimously Court, affirmed Errors, Chief Justice Nelson’s statement that he concurred with the Chancellor respecting of courts of in cases of jurisdiction this kind. equity 259. Hill, 7
The Court of has decided Supreme that an Pennsylvania be cannot restrain a injunction officer granted municipal from an office which he has vacated exercising by accepting office, from an another office under entering upon an a town council, to be but alleged illegal; in either case is at law only remedy warranto. quo v. Watts & Hagner 7 Heyberger, 104; Serg. Updegraff St. Crans, 47 Penn. Court of in a Supreme Iowa, careful delivered opinion has Dillon, that the Judge adjudged right municipal
office cannot determined in an bill for original an Cochrane v. Mc injunction. Cleary, Iowa, 75.
In v.Warner, 75 it Illinois, was Delehanty decided that a court of had no chancery entertain a bill an to restrain the aldermen of a from unlawfully removing plaintiff office of streets, superintendent a successor; but that appointing at was law remedy warranto or by quo mandamus. v. Colvin, Sheridan In it Illinois, 237, was held that a court of had no chancery to restrain by injunction council from ordinance passing unlawfully abolishing ' the office of commissioner of police; court, repeating great part Kerr on opening propositions Injunctions, *12 said : It is elementary matter of the subject juris diction of a court of is civil chancery court The is property. conversant with only questions property mainte nance of civil rights. Injury whether actual' property, is the prospective, foundation on which the rests. The court has no in matters criminal or merely merely immoral, which do not affect any right property. Nor do of a matters nature come within political the jurisdic tion of the Court of Nor has the Chancery. Court of Chan-
214 TERM, 1887.
Opinion of the Court. to interfere with the eery duties of jurisdiction, any depart- ment of under government, circumstances, and except special when for tbe necessary protection 78 rights property.” 247. Illinois, like it was v.
Upon grounds, adjudged Dickey Reed, 78 that a court of had no Illinois, to restrain chancery power a board of commissioners from by injunction canvassing results of an and that election; orders such an granting the commissioners injunction, con adjudging guilty were void. And in it, tempt Harris disregarding wholly v. 82 Illinois, Schryock, court, accordance its held that the hold decisions, an election was previous power and not a court' therefore had political judicial, to restrain officers from authority exercising power. Similar decisions made, have been full consideration, Court of Alabama, its own Supreme overruling prior decisions to the v. Beebe Robinson, contrary. Alabama, ;66 Reid, Moulton Alabama,
The statutes of Nebraska contain as to special provisions the removal of officers of a of a city. county “ All officers, county including justices peace, may tried and removed from office for official misde- charged, ” meanors of certain kinds, the board commission- county “ ers, The shall .any charge person. proceeding be as like those other actions as the nature of the nearly case admits, where otherwise this excepting provided chap- “ ter.” The shall be an accuser complaint accused, shall contain the with the charges necessary under and be verified them, affidavit of specifications elector of the that he State believes the to be charges “ true.” No formal answer or ; but if replication required there be an answer of this reply, provisions [the ?] statute in actions shall relating pleadings apply.” of fact shall be tried as other actions, and if the questions accused is found shall be entered, guilty, judgment removing vacant, the officer from his office, latter declaring the clerk shall enter in the election copy book.” Nebraska c. art. 2. Stat. Comp. *13 215 RE
IN SAWYER. Opinion oí the Court. commissioners
The of this county nature proceeding Court decisions has been the of several Supreme subject State. is The court declared: proceeding In the earliest one, incumbent undoubtedly and the nature, criminal its quasi show cause without why delay appear may required fact must be be removed. But he should not questions on error. to review and are actions, tried as in other subject is to a trial distinct specific charges right offence for which with an one thus secured charged every is it “Neither office.” liable to be removed from he is that the office resolve for the board to declare and sufficient of ouster must be a vacant. There judgment, 456. Nebraska, 452, 10 Sheldon, v. incumbent.” State - to re commissioners conferred 'county The authority not to be an exercise been held officers has since move county of that within the provis meaning strictly judicial power, that “the of Nebraska,‘which ion of Constitution requires in a shall be "vested of this state supreme judicial power and other courts courts,” district court, magistrates art. 1; of Nebraska, Constitution therein enumerated. § been But it has Nebraska, 15 247. Oleson, always v. State that the order of the so far in its nature, considered as judicial error in the district be reviewed on commissionersmay county in the court of county, ultimately Supreme 14 State, Minkler v. cited; v. above Sheldon, the State. State 444, 448. See Nebraska, v. 19 Meeker, State Nebraska, 181; v. County, & Railroad Washington also Sioux City Pacific 41 of Civil ; Procedure, Nebraska Code Nebraska, 3 §§ Criminal 599; Code 572. 580-584, (ed. 1885), § from that taken does not differ This view substantially been reviewed writ where similar orders have States, other -tribunal or board as ah inferior certiorari, not commissioned as officers, yet acting judicially, judges, of the common law. Charles not to the course according Dutcher, v. Fire 203; &c. Mayor Hoboken, People Will, 445; Commissioners, 72 N. Donahue v. County Y. 94. 100 Illinois, TERM, Opinion of the Court. In Nebraska, elsewhere, of the removal validity of a n
public officer, title of the removed, person *14 new to the office, appointee, be tried may wcvrranto- by quo or mandamus. Nebraska Stat. c. 19, c. Comp. 24; 71 ; 13, §§ Code of Civil Procedure, 704; Cases Sheldon, Ole 645, §§ and son, Meeker, above The cited; Queen Saddlers' 10Co., H. L. Cas. 404; v. Nelson, L. R. 5 Osgood H. L. 636.
The of the statutes of provisions Nebraska as to the removal of officers of cities of the first class which the (of of Lin- city coln is are more one) general, simply the- conferring upon and mayor council “power all pass any ordinances not repugnant Constitution and laws of the State, and ” “ such ordinances alter, modify, and to repeal; provide ” for officers of the removing city misconduct; fill any in the vacancy, office of occurring police or other- judge assent, elective office, by appointment by with of the council. Nebraska Stat. c. Comp. ; Stat. §§ 1887, c. 8, 68, §§ original ordinance council of city Lincoln, made- of the part record, to have been appears framed with the the rules object established statute for by conducting for the removal of proceedings officers county should be sub- followed in the stantially removal of officers city elected by the people.
After that whenever ordaining such officer “shall be- wilful guilty misconduct or malfeasance in he- office, members, be a removed vote of may two thirds of all the elected to the council,” it thar no such provides officer shall be “ removed unless charges writing, specifying misconduct or nature of the malfeasance, sighed by complainant, the name of at one giving least witness besidesthe complainant, such support shall be filed charges, with the clerk, presi- dent of the council, or and be read at mayor,” meet- regular and a council, ing certified copy thereof, a notice to show cause removal, be served the officer upon five before the next days that if he meeting; does not then and file a appear, denial “the said writing, charge shall be specifications taken as true, the council shall.
IN RE SAWYER. 21? Opinion of Court. ” if the council shall does, but he vacant;
declare “ and if the trial of for his trial, to some day said;, adjourn he is be satisfied that shall any'-' council guilty officer shall office, cause or malfeasance wilfully, misconduct de- minutes, their shall entered to be such finding at fill once to such and shall office-vacant, proceed clare said ” ordinance; statute and manner in the provided vacancy ’ in the matter of such and notices all marshal by policeman, served by may charges ’ be in the manner return shall provided service courts.” of summonses justice’s the service lawby in that ordinance by made material change The only trial of the officer that the is, of August ordinance council, be either the whole his may guilt finding shall have such whom council, charges committee a-“ to be entered either case, In finding referred.” been *15 shall declare and the council council, of the minutes the therefrom,” officer removed vacant and.the the said the vacancy the the to mayor,. whereupon fact and certify with the the assent by mayor filled by appointment shall be council. the of filed the Parsons, bill the by whole object
The the Lincoln, and mayor of the against city judge police of the the Circuit Court. which city, the councilmen which order, they for made disregard States United the office removal his frbm is to prevent custody, are in in the suggested No property question judge. police be involved in the or would bill, matters of fact allegations make thereon. court could that the decree ' that is, writing against in the bill charges stated case The of the use city to his own moneys for Parsons appropriating ordinance, by Sheedy original as filed, were required those named in otherwise charges, not Saunders; (Hyatt and witness as the additional them seem to have would signed wei’e referred that the charges that ordinance;) required council; of the members of three a committee to the mayor and his accused, appearance notice that upon had the committee committee, he that objected- that n TERM,
Opinion of the Court. and the committee so authority try charges, reported that and council; Saunders thereupon Sheedy procured of the amended ordinance, passage committee, giving instead of the whole council, and power try charges its to the that council; after the report finding passage this ordinance, and his the committee protest, resumed ordqr trial, and, favor his protect accusers, and to obtain his removal from office,made a fraudulently report council, city all falsely stating they reported (cid:127)evidence, book fraudulently which he suppressing had n offeredin him evidence, and recommend- finding guilty, office be his declared and be vacant, filled ing of some other and that the person; mayor council set the matter final city down for a future vote.at day named, threatened and declared that would then, without or the evidence hearing taken reading before the committee, declare the officevacant and another appoint per- son to‘fill it.
The bill to restrain the prays, councilmen of the of Lincoln from fur- proceeding any ther with the Parsons, charges against vote on taking any report committee, the office of declaring police vacant, to fill judge appointing any office. person of law matters in the bill as suggested grounds intervention of the Circuit Court are, that the amended 'ordi- nance was an ex and that post all the proceedings facto council and its committee, well as both ordi- nances, were void, illegal conflict viola- tion those articles of the Constitution of the United States which that no provide shall be person deprived life, liberty *16 or without due property, of law; that in all process criminal the accused shall prosecutions the enjoy to right speedy trial public of the impartial State and jury district where the crime shall have been and to committed, have com- for pulsory in process witnesses his favor; and that obtaining ho State shall ex or pass any post law; deprive any per- facto son of life, or liberty due of property, process law; without or deny within its any the person jurisdiction equal pro- tection of the laws. EE SAWYER.
IN Opinion of the Court.
'
of
to the Constitution
Amendments
and Sixth
Fifth
be
shall
that
person
States,"which provide
the United
of
due
without
process
or
life,
of
liberty
property
deprived
trial
criminal
in
prosecutions
accused
to the
law, and secure
in his
witnesses
for obtaining
process
and compulsory
by jury,
not to laws
States only,
the United
favor,’ apply
Illinois,
v.
a State.
of
Spies
under the authority
proceedings-
which
Constitution,
of the
131. And that
S.
provision
123 U.
laws,
only
ex
applies
post
State
pass
any
prohibits
facto
shall not be stay by any granted in a when authorized State, court of except by proceedings 1 22, a Act of March c. Stat. 2, 1793, 5, 335; act. bankrupt § 4 How. Cranch, Jenness, v. Peck v. 7 Wolcott, ; 179 Diggs 13 Jones, Rev. Stat. Watson v. Wall. 625; 720; 719; § 91 U. S. Dial v. 96 v. Reynolds, Carpenter, 254; Haines v. 115 S. 348. U. S. U. 340; Helton, Sargent But if those are to be considered as neither but in nature of criminal nor rather an official judicial, .the a board entrusted law with the ad- by municipal inquiry the affairs of ministration and still, regulation city, their the removal of a officer from only object public being his office, are control beyond jurisdiction equally of a court of equity.
The reasons which a court of from interfer- preclude equity with the or removal of officers of the ing public from which the court its derives government authority apply with increased force when the a court is court of the United States and officers officers a If State. a question are. to be such an is, officer of a person claiming either in State, court of the appellate proceedings mandamus or denied wa/rra/nto, him secured to quo any right Constitution the United States, he can relief obtain a writ of error from this court.
In
case, therefore,
Circuit Court of
any aspect
States was
without
authority
United.
entertain the bill
for an injunction.
As this court has often said:
aWhere
court has jurisdic
tion, it has
decide
which occurs in
right
every question
the cause; and whether its decision be correct or otherwise,
until
its
reversed,
judgment,
regarded
binding
every
other court. But if it act without
its
authority,
judgments
orders are
as nullities.
are not
regarded
but
They
voidable,
Peirsol,
void.” Elliott v.
We do rest our conclusion in .case, this any degree, that the bill does ground, suggested argument, RE
IN SAWYER.
Opinion of the Court. show a matter in not of sufficient controversy value pecuniary of the Circuit support because an Court; *18 defect of its in this inas that of apparent jurisdiction respect, into citizenship parties, facts depending upon inquiry which or not can might might support be jurisdiction, availed of or writ of only by error, does not render appeal or its decree a Adams, 2 judgment nullity. Prigg Salk. Carthew, S. C. Fisher v. 674; 274; 9 Bassett, Leigh, 131-133;D es Moines Co.v. Iowa Navigation Homestead Co., U. S. 552. 123 do in
Neither we a case that, say to a class or belonging which is within the both of courts subject jurisdiction equity a of courts of of a law, mistake court of in equity, deciding that in the matter it there could be particular no full, at will remedy render adequate complete law, its decree void. absolutely
But the of our conclusion is, ground that, whether pro- council of Lincoln for the ceedings removal of police judge, upon charges misappropriating moneys are to be inas belonging city, their regarded nature criminal civil, judicial administrative, merely relate they to a which the Circuit Court of the subject United States, in has no sitting equity, jurisdiction over, can power neither determine for nor try itself, restrain by injunction the tribunals and officers of the State and trying and determining. cannot be
The case in from that of distinguished a principle of the Common Bench in in judgment a criminal England which was eoram non or the case of prosecution, ; a sen judioe tence Circuit Court passed by United States of an infamous crime, without a charge or indict presentment ment Case by grand jury. Marshalsea, Rep. ; Wilson, 114 U. S. 76 Ex Exporte 417; 121U. S. parte Bain, 1. The Court Circuit without entertain being jurisdiction for an bill all its in the injunction, exer- proceedings cise of the which it assumed null and are void. The order, in the nature of an it restraining had no injunction, to make. The that the defendants were power adjudication TERM, 1887. Fiel'd, Opinion:
Concurring J. that order is of a contempt disregarding equally guilty the marshal under their detention void, adjudication are entitled to dis without authority 104 U. S. Ex Rowland, 604; Fisk, Ex parte parte charged. 713; re 123 U. S. 113 U. S. In Ayers, n
Writ habeas to issue. corpus Me. Justice Field, concurring. of this court,
I concur Circuit had States to interfere with the United and common council of Lincoln proceedings for the removal that city. police judge appoint- of officers of a of a ment removal State are municipality of the courts of the not within United subjects cognizance States. The detailed the record present *19 character, case were of such and so unseemly irregular fair, the officer naméctof a well calculated'to deprive hearing, pause as to comment. however But, vio- strong irregular could be found under thé lent, laws of the remedy only in State and her tribunals. The did not hold his police judge officeunder the United and in his removal the States, common council of Lincoln violated no law of the United States. On is the of the authorities of the State, subject independence bodies, and of her from federal interference in municipal any more in form, than and removal of complete their officers.
I also in is said in concur what of the court as opinion to the want of court of over criminal jurisdiction but do not its proceedings, perceive application present case. The before the common council were not proceedings . in criminal the sense to which the That principle applies. was not a court of criminal body justice, administering it and is to criminal in such 'a tribunal that only proceedings the authorities cited have reference. In cases many proceed- criminal their taken character, individuals or- ings, men, bodies of if carried out, to one ganized tending, despoil of his or other be a court of property rights, may enjoined by equity.
IN EE SAWYEE. 223- Waite, J., Harlan, Opinions: Dissenting O. J.
Me. Chief Justice Waite, dissenting.
I am not to decide that an of a officer prepared municipal under to a cannot, court government circumstances, apply authorities from restrain chancery municipal proceed- to remove him from his office without the .of ing authority law. There be cases, when the may my opinion, tardy remedies of warranto, other like-writs will certiorari, quo circumstances, be I can conceive of entirely inadequate. easily removal, under which a even for a short be would period, of irremediable mischief. Such productive may rarely cases occur, of such-an not often propriety application may be but if one can and if seen; arise, the exercise of the juris- diction can ever be of the court in due proper, course bill filed for such relief will not be even void, on which it is asked be insufficient. though grounds may If the court can take such a case under it circumstances, must be when certainly permitted inquire, a bill of that character is whether the filed, case is one that entitles the to the relief he if asks, and, party necessary time, the mean to issue its discretion a prevent wrong order for that Such an order .temporary restraining purpose. be will not even it void, found on examination though may to have been issued. While in force must be improvidently it and the court will not be without obeyed, for its Such, was this case, punish contempt. my opinion, I, dissent from the therefore, which has been ordered. *20 HaelaN, Justice dissenting.
Me. I concur in the views the Chief Justice, expressed by unite with him in from the dissenting opinion of the court. defendants, proceedings Inaugurated by against
Parsons are not of a criminal nor are certainly nature; embraced of the statute which declares provision “the writ of shall not be court granted by any TERM, 1887. Harlan, Opinion:
Dissenting J. the United States to in court of a stay proceedings any in cases where such be author- State, except injunction may law ized Bev. relating bankruptcy.” Stat. 720. §
The act of March declares that the Circuit Courts have, the United States shall concurrent original cognizance, courts of several of all spits of a States, civil at common law or nature, under the Consti- equity, arising tution of the States. United
Parsons’ suit of a civil is, and it nature; confessedly, pro- ceeds the defendants what ground propose do to him will violate secured the Constitution of rights It United States. a suit is, therefore, under the arising Constitution United States. Whether the Circuit Court, could to the the relief sitting equity, properly grant plaintiff asked not a within the rule that question orders, void, decrees are where the judgments, court, which was without It is them, rather a passed jurisdiction. question as to the exercise of As this suit is one jurisdiction. arising under the Constitution of States, the United is of a civil nature, the mind of the Circuit inquiry when he Judge, bill, read the was whether, according principles equity, a decree could be rendered properly defendants ? v. Bank Osborn United 9 Wheat. States, 738, 858. The statute in' suits shall not be provides sus- tained in either of the courts of the United States in case where a plain, be. had adequate, complete at remedy may But if law.” one of those courts should render a final decree, in behalf of the he had a plaintiff, notwithstanding plain, at would adequate, decree be a complete remedy ? Could it be assailed, nullity void, collaterally, that no case was made relief in ground justifying equity? When a has party disregarded issued preliminary injunction fined a Circuit Court of the United has States, been inis contempt, custody fine, must failing pay he be habeas case where it discharged upon corpus every the face of bill, that the has a appears, upon plaintiff plain, at ? law Those adequate, remedy it complete questions, *21 v. VALLEY TOWNSHIP. BISSELL SPRING-
Statement of the Case. n do not receive a answer. I to should me, seems negative that the Circuit could the court decide understand circumstances, mode of under not, any by proceeding, to be contend are about which plaintiffs rights enforce .below, but defendants; the court violated only, to interfere with the in had no authority pro- equity, sitting, this It to me that action the defendants. seems posed final arise would upon -appeal properly question in cause, decree rendered and is not determinable upon . of habeas
writ corpus. Mr. case, Attorney Upon opinions this delivery court, court, General stated open that he take notice would writ, and that he would order the dis- awarding óf the order without prisoners, requiring issue of the writ. charge BISSELL v. SPRING VALLEY TOWNSHIP. THE THE THE ERROR TO CIRCUIT COURT OF UNITED STATES FOR
DISTRICT OF KANSAS. Submitted December 1887. Decided January it, entry judgment parties by way of final on ,The demurrer concludes the estoppel, subsequent parties action on a between the same differ- claim, controversy litigated ent so far as the new relates to the. matters prior and determined in the action. municipal corporation against final for defendant A in an action coupons purporting on recover attached to bonds have been issued corporation, up setting entered on demurrer to an facts answer the. showing municipality, that the bonds never executed con- were plaintiff subsequent municipality cludes the in a action " coupons recover on cut from other the same bonds. County Sac, distinguished. Cromwell 94 U. S. was the case, stated the court. following In 1880, the is also October, who below, plaintiff plaintiff here, error commenced an action the Circuit Court of
VOL. cxxiv—15