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 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 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 why a preliminary injunction should not issue as prayed for, "and that in the mean time, 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 forth with 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 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,1) 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 fines of $600 each, and the others fines of $50 each, beside costs, and in default of payment thereof stand 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

1 The original ordinance contained these sections:

"Section 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

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."

G. M. Lambertson, for petitioners.

L. C. Burr, in opposition.

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 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, 484-487; Thompson v. Railroad Co., 6 Wall. 134; Heine v. Levee Com'rs, 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 Swanst. 402, 413; 1 Spence, Eq. Jur. 689, 690; Attorney General v. Insurance 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 jurisdic

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, section 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."

tion 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 mean time, 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, Holt, 136, 6 Mod. 16. Lord Chancellor HARDWICKE, while exercising the power of 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, etc., 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 Jur. 218; Saull v. Browne, 10 Ch. App. 64; Kerr v. Preston, 6 Ch. Div. 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, etc., 10 Paige, 539; Davis v. American Soc., 75 N. Y. 362; Tyler v. Hamersley, 44 Conn. 419, 422; Stuart v. Board Sup'rs, 83 Ill. 341; Devron v. First Municipality, 4 La. Ann. 11; Levy v. Shreveport, 27 La. Ann. 620; Moses v. Mayor, etc., 52 Ala. 198; Gault v. Wallis, 53 Ga. 675; Phillips v. Mayor, etc., 61 Ga. 386; Cohen v. Goldsboro Com'rs, 77 N. C. 2; Oil Co. v. Little Rock, 39 Ark. 412; Spink v. Francis, 19 Fed. Rep. 670, and 20 Fed. Rep. 567; Suess v. Noble, 31 Fed. Rep. 855.

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 intrusted 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 wellconsidered 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 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 & S. 104; Updegraff v. Crans, 47 Pa. 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 Iowa, 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 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.

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