1889 HISTORY OF LINCOLN NEBRASKA - Chapter Twenty-three

CHAPTER XXIII

INCARCERATION OF THE CITY COUNCIL -- A MEMORABLE OCCURRENCE IN THE CITY'S HISTORY -- A SKETCH OF THE PROCEEDINGS, AND A LEGAL HISTORY OF THE CASE

(335) In the fall of 1887, the Mayor and eleven members of the City Council were imprisoned in the county jail of Douglas county for alleged contempt of the Circuit Court of the United States, District of Nebraska. The following is a brief statement of the facts which occasioned this extraordinary action on the part of the Federal Court:

Sometime in the month of August certain parties, gamblers in the city of Lincoln, preferred charges in writing with the Council, against Albert F. Parsons, Police Judge, alleging that he had been guilty of malfeasance in office, in that he had not accounted for moneys collected by him as fines as required by law. These charges were the result of a warfare made upon the gambling fraternity of the city by the newly elected Mayor, A. J. Sawyer, and the Marshal and police appointed by him. In compliance with the request of the persons making the charges, a committee of the Council was appointed to investigate the charges. The committee met, and after hearing much testimony pro and con, reported to the Council that in their opinion the charges were true, and that the Police Judge had not paid over to the Treasurer all the money by him received, and recommended that his office be declared vacant, and that a successor be appointed by the Mayor. The ordinance then in force relating to removal of city officers not providing for trial by a committee of less than the whole of the Council, it was amended, and the committee's report again filed.

While the resolution declaring the office vacant was pending, Mr. Parsons appeared with his attorney, Mr. L. C. Burr, and requested that action be delayed until a certain day, when the evidence could be read and counsel heard before the whole Council, stating that if this was done they would be satisfied with the action of the Council in the premises. Their request was acceded to, and a day fixed as desired.

(336) Before that day arrived, however, Mr. Parsons had obtained from Judge Brewer, of the United States Circuit Court, an order restraining the Mayor and Council from taking further action in the premises until he could hear and determine the matter. After careful consideration, and after taking advice of counsel, the Mayor and Council became satisfied that the restraining order was made without authority of law, and was of no binding force or effect. They accordingly disregarded it, and proceeded to declare the office of Police Judge vacant, and the Mayor appointed and the Council confirmed Mr. H. J. Whitmore as Police Judge to fill the vacancy.

The action of the city officials was at once brought to the attention of the court, and an order entered, requiring the Mayor and Council to appear and show cause why they should not be punished for contempt.

At the appointed time the parties appeared and presented their reasons for violating the injunction, and averred that the court was without jurisdiction to issue the same, and that consequently they were under no obligations to obey it. Judge Brewer, however, held that his order was properly issued, and adjudged the defendants guilty of contempt, and sentenced Mayor Sawyer, and Councilmen Briscoe, Burks, Cooper, Pace, and Dean, to pay a fine of fifty dollars each, and Councilmen Billingsley, Graham, Hovey, Ensign, Fraas, and Dailey, to pay a fine of six hundred dollars each. One and all declared their intention to suffer imprisonment rather than pay the fine imposed, and they were accordingly taken in charge by the United States Marshal, and confined in the Douglas county jail.

Their attorney, Hon. G. M. Lambertson, had in the meantime prepared the proper papers for an application to the Supreme Court of the United States for a writ of habeas corpus, and took the first train for the city of Washington and made his application in person to Justice Miller. The writ was immediately issued as prayed, and after a week of imprisonment, the Lincoln city government was once more at liberty. The application for a writ of habeas corpus was most elaborately argued in the Supreme Court, and great interest was manifested in the case by the legal fraternity and public generally. January 12, 1888, the decision of the Supreme Court was announced, and with but two exceptions, the judges united in declaring the imprisonment unlawful, and ordering the release of the prisoners. The legal aspect of the case was as follows:

(337) It was contended by the petitioners that the Circuit Court of the United States, sitting as a court of equity, had no jurisdiction and authority to make the order under which they were held by the Marshal.

On this point the court said: "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, 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."

The court then reviewed the petition of Mr. Parsons upon which the restraining order was granted. The matters of law stated in that bill as grounds for the intervention of the Circuit Court were 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 in 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. The court held that the articles which provide that no person shall be deprived of life, liberty, or property, without due process of law, and to secure to the accused in criminal prosecutions trial by jury, and compulsory process for his witnesses, apply to the United States only, and not to laws or proceedings under the authority of a States, and that the provision which prohibits any State to pass ex post facto laws applies only to legislation concerning crime; that if the ordinances and proceedings of the Council were in the nature of civil as distinguished from criminal proceedings, the only possible ground for the interposition of the courts of the United States in any form was that Parsons, if removed from office, would be deprived by the State, of life, liberty, or (338) property, without due process of law, or has been denied the equal protection of the laws. For this a remedy could be found in the courts of the State, by proper proceedings, and the equity courts were powerless to interfere. But that whether the proceedings of the Council were to be regarded as in their nature criminal or civil, judicial or merely administrative, they related 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; that the court being without jurisdiction to entertain the bill for an injunction, all its proceedings in the exercise of the jurisdiction which it assumed are null and void; that it had no power to make the restraining order; that the adjudication that the defendants were guilty of contempt in disregarding that order was equally void; and that their detention by the Marshal under that adjudication was without authority of law, and they should be discharged.

The termination of this proceeding in the manner above indicated, completely vindicating the action of the Council, was greeted by the citizens of Lincoln with great rejoicing, and the released councilmen were the heroes of the hour.

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