Sawyer

Petition for writ Habeas Corpus.

This was a petition for a writ of habeas corpus, in behalf of the mayor and 11 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 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; and said mayor thereupon referred the said matter 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 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, grant ng 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 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.'