In Re Sawyer , 8 S. Ct. 482 ( 1888 )

124 U.S. 200 (1888)

IN RE SAWYER and Others.

Supreme Court of United States.

Argued December 12, 1887. Decided January 9, 1888. ORIGINAL.

Mr. G.M. Lambertson for petitioners.

Mr. L.C. Burr opposing, on behalf of Parsons.

MR. JUSTICE GRAY, after stating the case as above reported, 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 Commissioners, 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 offences, 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 Swanston, 402, 413; 1 Spence Eq. Jur. 689, 690; Attorney General v. Utica Ins. 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 jurisdiction 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, Cas. temp. Holt, 136; S.C. 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 & Corporation of York v. Pilkington, 2 Atk. 302; S.C. 9 Mod. 273; Montague v. Dudman, 2 Ves. Sen. 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 Jurist, 218; Saull v. Browne, L.R. 10 Ch. 64; Kerr v. Preston, 6 Ch. D. 463.

Mr. Justice Story, in his Commentaries on Equity Jurisprudence, affirms the same doctrine. 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 &c. of New York, 10 Paige, 539; Davis v. American Society for Prevention of Cruelty to Animals, 75 N.Y. 362; Tyler v. Hamersley, 44 Conn. 419, 422; Stuart v. Board of Supervisors, 83 Illinois, 341; Devron v. First Municipality, 4 La. Ann. 11; Levy v. Shreveport, 27 La. Ann. 620; Moses v. Mayor &c. of Mobile, 52 Alabama, 198; Gault v. Wallis, 53 Georgia, 675; Phillips v. Mayor &c. of Stone Mountain, 61 Georgia, 386; Cohen v. Goldsboro Commissioners, 77 No. Car. 2; Waters Peirce Oil Co. v. Little Rock, 39 Arkansas, 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 entrusted 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 well considered 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 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. Tappan 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 & Serg. 104; Updegraff v. Crans, 47 Penn. 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. Cochrane v. McCleary, 22 Iowa, 75.

In Delehanty v. Warner, 75 Illinois, 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 Illinois, 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 Illinois, 247.

Upon like grounds, it was adjudged in Dickey v. Reed, 78 Illinois, 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 Illinois, 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 Alabama, 66; Moulton v. Reid, 54 Alabama, 320.

The statutes of Nebraska contain special provisions as to the removal of officers of a county or of a city.

"All county officers, including justices of the peace, may be charged, tried and removed from office for official misdemeanors" of certain kinds, by the board of county commissioners, upon the charge of any person. "The proceeding shall be as nearly like those in other actions as the nature of the case admits, excepting where otherwise provided in this chapter." "The complaint shall be by an accuser against the accused, and shall contain the charges with the necessary specifications under them, and be verified by the affidavit of any elector of the State that he believes the charges to be true." No formal answer or replication is required; "but if there be an answer and reply, the provisions of this [the?] statute relating to pleadings in actions shall apply." "The questions of fact shall be tried as in other actions, and if the accused is found guilty, judgment shall be entered, removing the officer from his office, and declaring the latter vacant, and the clerk shall enter a copy of the judgment in the election book." Nebraska Comp. Stat. c. 18, art. 2.

The nature of this proceeding before county commissioners has been the subject of several decisions by the Supreme Court of the State.

In the earliest one, the court declared: "The proceeding is quasi criminal in its nature, and the incumbent undoubtedly may be required to appear without delay and show cause why he should not be removed. But questions of fact must be tried as in other actions, and are subject to review on error. The right to a trial upon distinct and specific charges is secured to every one thus charged with an offence for which he is liable to be removed from office." "Neither is it sufficient for the board to declare and resolve that the office is vacant. There must be a judgment of ouster against the incumbent." State v. Sheldon, 10 Nebraska, 452, 456.

The authority conferred upon county commissioners to remove county officers has since been held not to be an exercise of strictly judicial power, within the meaning of that provision of the Constitution of Nebraska, which requires that "the judicial power of this state shall be vested in a supreme court, district courts," and other courts and magistrates therein enumerated. Constitution of Nebraska, art. 6, § 1; State v. Oleson, 15 Nebraska, 247. But it has always been considered as so far judicial in its nature, that the order of the county commissioners may be reviewed on error in the district court of the county, and ultimately in the Supreme Court of the State. State v. Sheldon, above cited; Minkler v. State, 14 Nebraska, 181; State v. Meeker, 19 Nebraska, 444, 448. See also Sioux City & Pacific Railroad v. Washington County, 3 Nebraska, 30, 41; Nebraska Code of Civil Procedure, §§ 580-584, 599; Criminal Code (ed. 1885), § 572.

This view does not substantially differ from that taken in other States, where similar orders have been reviewed by writ of certiorari, as proceedings of an inferior tribunal or board of officers, not commissioned as judges, yet acting judicially, and not according to the course of the common law. Charles v. Mayor &c. of Hoboken, 3 Dutcher, 203; People v. Fire Commissioners, 72 N.Y. 445; Donahue v. County of Will, 100 Illinois, 94.

In Nebraska, as elsewhere, the validity of the removal of a public officer, and the title of the person removed, or of a new appointee, to the office, may be tried by quo warranto or mandamus. Nebraska Comp. Stat. c. 19, §§ 13, 24; c. 71; Code of Civil Procedure, §§ 645, 704; Cases of Sheldon, Oleson, and Meeker, above cited; The Queen v. Saddlers' Co., 10 H.L. Cas. 404; Osgood v. Nelson, L.R. 5 H.L. 636.

The provisions of the statutes of Nebraska as to the removal of officers of cities of the first class (of which the city of Lincoln is one) are more general, simply conferring upon the mayor and council "power to pass any and all ordinances not repugnant to the Constitution and laws of the State, and such ordinances to alter, modify, or repeal;" and "to provide for removing officers of the city for misconduct;" and to fill any vacancy, occurring in the office of police judge or other elective office, by appointment by the mayor with the assent of the council. Nebraska Comp. Stat. c. 13, §§ 11, 15; Stat. 1887, c. 11, §§ 8, 68, 114.

The original ordinance of the city council of Lincoln, made part of the record, appears to have been framed with the object that the rules established by statute for conducting proceedings for the removal of county officers should be substantially followed in the removal of city officers elected by the people.

After ordaining that whenever any such officer "shall be guilty of any wilful misconduct or malfeasance in office, he may be removed by a vote of two thirds of all the members elected to the council," it provides that no such officer shall be removed 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," and be read at a regular meeting of the council, and a certified copy thereof, with a notice to show cause against the removal, be served upon the officer five days before the next meeting; that if he does not then appear, and file a denial in writing, "the said charge and specifications shall be taken as true, and the council shall declare the office vacant;" but if he does, the council shall adjourn to some day for his trial, "and if upon the trial of said officer said council shall be satisfied that he is guilty of any misconduct wilfully, or malfeasance in office, they shall cause such finding to be entered upon their minutes, and shall declare said office vacant, and shall proceed at once to fill such vacancy in the manner provided by statute and ordinance;" and that all proceedings and notices in the matter of such charges may be served by the city marshal or by a policeman, and the "service and return shall be in the manner provided by law for the service of summonses in justice's courts."

The only material change made in that ordinance by the ordinance of August 24 is, that the trial of the officer and the finding of his guilt may be either by the whole council, or by a "committee of the council, to whom such charges shall have been referred." In either case, the finding is to be entered upon the minutes of the council, "and the council shall declare the said office vacant and the said officer removed therefrom," and certify the fact to the mayor, whereupon the vacancy shall be filled by appointment by the mayor with the assent of the council.

The whole object of the bill in equity filed by Parsons, the police judge of the city of Lincoln, against the mayor and councilmen of the city, upon which the Circuit Court of the United States made the order, for the disregard of which they are in custody, is to prevent his removal from the office of police judge. No question of property is suggested in the allegations of matters of fact in the bill, or would be involved in any decree that the court could make thereon.

The case stated in the bill is, that charges in writing against Parsons for appropriating to his own use moneys of the city were filed, as required by the original ordinance, by Sheedy and Saunders; (Hyatt not otherwise named in those charges, would seem to have signed them as the additional witness required by that ordinance;) that the charges were referred by the mayor to a committee of three members of the council; that upon notice to the accused, and his appearance before that committee, he objected that the committee had no authority to try the charges, and the committee so reported to the council; that thereupon Sheedy and Saunders procured the passage of the amended ordinance, giving a committee, instead of the whole council, power to try the charges and report its finding to the council; that after the passage of this ordinance, and against his protest, the committee resumed the trial, and, in order to favor and protect his accusers, and fraudulently to obtain his removal from office, made a report to the city council, falsely stating that they reported all the evidence, and fraudulently suppressing a book which he had offered in evidence, and finding him guilty, and recommending that his office be declared vacant, and be filled by the appointment of some other person; and that the mayor and city council set the matter down for final vote at a future day named, and threatened and declared that they would then, without hearing or reading the evidence taken before the committee, declare the office vacant and appoint another person to fill it.

The bill prays for an injunction to restrain the mayor and councilmen of the city of Lincoln from proceeding any further with the charges against Parsons, or taking any vote on the report of the committee, or declaring the office of police judge vacant, or appointing any person to fill that office.

The matters of law suggested in the bill as grounds for the intervention of the Circuit Court are, 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 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 Fifth and Sixth Amendments to the Constitution of the United States, which provide that no person shall be deprived of life, liberty or property without due process of law, and secure to the accused in criminal prosecutions trial by jury, and compulsory process for obtaining witnesses in his favor, apply to the United States only, and not to laws or proceedings under the authority of a State. Spies v. Illinois, 123 U.S. 131. And that provision of the Constitution, which prohibits any State to pass ex post facto laws, applies only to legislation concerning crimes. Calder v. Bull, 3 Dall. 386.

If the ordinances and proceedings of the city council are in the nature of civil, as distinguished from criminal proceedings, the only possible ground, therefore, for the interposition of the courts of the United States in any form is that Parsons, if removed from the office of police judge, will be deprived by the State of life, liberty or property without due process of law, in violation of the Fourteenth Amendment to the Constitution, or that the State has denied him the equal protection of the laws, secured by that Amendment.

It has been contended by both parties in argument, that the proceeding of the city council for the removal of Parsons upon the charges filed against him is in the nature of a criminal proceeding; and that view derives some support from the judgment of the Supreme Court of Nebraska in State v. Sheldon, 10 Nebraska, 452, 456, before cited. But if the proceeding is of a criminal nature, it is quite clear, for the reasons and upon the authorities set forth in the earlier part of this opinion, that the case stated in the bill is wholly without the jurisdiction of any court of equity.

If those proceedings are not to be considered as criminal or quasi criminal, yet if, by reason of their form and object, and of the acts of the legislature and decisions of the courts of Nebraska as to the appellate jurisdiction exercised in such cases by the judicial power of the State, they are to be considered as proceedings in a court of the State, (of which we express no decisive opinion,) the restraining order of the Circuit Court was void, because in direct contravention of the peremptory enactment of Congress, that the writ of injunction shall not be granted by any court of the United States to stay proceedings in any court of a State, except when authorized by a bankrupt act. Act of March 2, 1793, c. 22, § 5, 1 Stat. 335; Diggs v. Wolcott, 4 Cranch, 179; Peck v. Jenness, 7 How. 612, 625; Rev. Stat. § 720; Watson v. Jones, 13 Wall. 679, 719; Haines v. Carpenter, 91 U.S. 254; Dial v. Reynolds, 96 U.S. 340; Sargent v. Helton, 115 U.S. 348.

But if those proceedings are to be considered as neither criminal nor judicial, but rather in the nature of an official inquiry by a municipal board entrusted by law with the administration and regulation of the affairs of the city, still, their only object being the removal of a public officer from his office, they are equally beyond the jurisdiction and control of a court of equity.

The reasons which preclude a court of equity from interfering with the appointment or removal of public officers of the government from which the court derives its authority apply with increased force when the court is a court of the United States and the officers in question are officers of a State. If a person claiming to be such an officer is, by the judgment of a court of the State, either in appellate proceedings or upon a mandamus or quo warranto, denied any right secured to him by the Constitution of the United States, he can obtain relief by a writ of error from this court.

In any aspect of the case, therefore, the Circuit Court of the United States was without jurisdiction or authority to entertain the bill in equity for an injunction.

As this court has often said: "Where a court has jurisdiction, it has a right to decide every question which occurs in the cause; and whether its decision be correct or otherwise, its judgment, until reversed, is regarded as binding in every other court. But if it act without authority, its judgments and orders are regarded as nullities. They are not voidable, but simply void." Elliott v. Peirsol, 1 Pet. 328, 340; Wilcox v. Jackson, 13 Pet. 498, 511; IIickey v. Stewart, 3 How. 750, 762; Thompson v. Whitman, 18 Wall. 457, 467.

We do not rest our conclusion in this case, in any degree, upon the ground, suggested in argument, that the bill does not show a matter in controversy of sufficient pecuniary value to support the jurisdiction of the Circuit Court; because an apparent defect of its jurisdiction in this respect, as in that of citizenship of parties, depending upon an inquiry into facts which might or might not support the jurisdiction, can be availed of only by appeal or writ of error, and does not render its judgment or decree a nullity. Prigg v. Adams, 2 Salk. 674; S.C. Carthew, 274; Fisher v. Bassett, 9 Leigh, 119, 131-133; Des Moines Navigation Co. v. Iowa Homestead Co., 123 U.S. 552.

Neither do we say that, in a case belonging to a class or subject which is within the jurisdiction both of courts of equity and of courts of law, a mistake of a court of equity, in deciding that in the particular matter before it there could be no full, adequate and complete remedy at law, will render its decree absolutely void.

But the ground of our conclusion is, that, whether the proceedings of the city council of Lincoln for the removal of the police judge, upon charges of misappropriating moneys belonging to the city, are to be regarded as in their nature criminal or civil, judicial or merely administrative, they relate 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.

The case cannot be distinguished in principle from that of a judgment of the Common Bench in England in a criminal prosecution, which was coram non judice; or the case of a sentence passed by the Circuit Court of the United States upon a charge of an infamous crime, without a presentment or indictment by a grand jury. Case of the Marshalsea, 10 Rep. 68, 76; Ex parte Wilson, 114 U.S. 417; Ex parte Bain, 121 U.S. 1.

The Circuit Court being without jurisdiction to entertain the bill in equity for an injunction, all its proceedings in the exercise of the jurisdiction which it assumed are null and void. The restraining order, in the nature of an injunction, it had no power to make. The adjudication that the defendants were guilty of a contempt in disregarding that order is equally void, their detention by the marshal under that adjudication is without authority of law, and they are entitled to be discharged. Ex parte Rowland, 104 U.S. 604; Ex parte Fisk, 113 U.S. 713; In re Ayers, 123 U.S. 443, 507.

Writ of habeas corpus to issue.

MR. JUSTICE FIELD, concurring.

I concur in the judgment of this court, that the Circuit Court of the United States had no jurisdiction to interfere with the proceedings of the mayor and common council of Lincoln for the removal of the police judge of that city. The appointment and removal of officers of a municipality of a State are not subjects within the cognizance of the courts of the United States. The proceedings detailed in the record in the present case were of such an irregular and unseemly character, and so well calculated to deprive the officer named of a fair hearing, as to cause strong comment. But, however irregular and violent, the remedy could only be found under the laws of the State and in her tribunals. The police judge did not hold his office under the United States, and in his removal the common council of Lincoln violated no law of the United States. On no subject is the independence of the authorities of the State, and of her municipal bodies, from federal interference in any form, more complete than in the appointment and removal of their officers.

I concur also in what is said in the opinion of the court as to the want of jurisdiction of a court of equity over criminal proceedings, but do not perceive its application to the present case. The proceedings before the common council were not criminal in the sense to which the principle applies. That body was not a court of justice, administering criminal law, and it is only to criminal proceedings in such a tribunal that the authorities cited have reference. In many cases proceedings, criminal in their character, taken by individuals or organized bodies of men tending, if carried out, to despoil one of his property or other rights, may be enjoined by a court of equity.

MR. CHIEF JUSTICE WAITE, dissenting.

I am not prepared to decide that an officer of a municipal government cannot, under any circumstances, apply to a court of chancery to restrain the municipal authorities from proceeding to remove him from his office without the authority of law. There may be cases, in my opinion, when the tardy remedies of quo warranto, certiorari, and other like writs will be entirely inadequate. I can easily conceive of circumstances under which a removal, even for a short period, would be productive of irremediable mischief. Such cases may rarely occur, and the propriety of such an application may not often be seen; but if one can arise, and if the exercise of the jurisdiction can ever be proper, the proceedings of the court in due course upon a bill filed for such relief will not be void, even though the grounds on which it is asked may be insufficient. If the court can take jurisdiction of such a case under any circumstances, it certainly must be permitted to inquire, when a bill of that character is filed, whether the case is one that entitles the party to the relief he asks, and, if necessary to prevent wrong in the mean time, to issue in its discretion a temporary restraining order for that purpose. Such an order will not be void, even though it may be found on examination to have been improvidently issued. While in force it must be obeyed, and the court will not be without jurisdiction to punish for its contempt. Such, in my opinion, was this case, and I, therefore, dissent from the judgment which has been ordered.

MR. JUSTICE HARLAN, dissenting.

I concur in the views expressed by the Chief Justice, and unite with him in dissenting from the opinion and judgment of the court.

The proceedings inaugurated by the defendants against Parsons are certainly not of a criminal nature; nor are they embraced by the provision of the statute which declares that "the writ of injunction shall not be granted by any court of the United States to stay proceedings in any court of a State, except in cases where such injunction may be authorized by any law relating to proceedings in bankruptcy." Rev. Stat. § 720.

The act of March 3, 1887, declares that the Circuit Courts of the United States shall have original cognizance, concurrent with the courts of the several States, of all suits of a civil nature, at common law or in equity, arising under the Constitution of the United States.

Parsons' suit is, confessedly, of a civil nature; and it proceeds upon the ground that what the defendants propose to do will violate rights secured to him by the Constitution of the United States. It is, therefore, a suit arising under the Constitution of the United States. Whether the Circuit Court, sitting in equity, could properly grant to the plaintiff the relief asked is not a question of jurisdiction within the rule that orders, judgments, or decrees are void, where the court, which passed them, was without jurisdiction. It is rather a question as to the exercise of jurisdiction. As this suit is one arising under the Constitution of the United States, and is of a civil nature, the inquiry in the mind of the Circuit Judge, when he read the bill, was whether, according to the principles of equity, a decree could be properly rendered against the defendants? Osborn v. Bank of the United States, 9 Wheat. 738, 858.

The statute provides that "suits in equity shall not be sustained in either of the courts of the United States in any case where a plain, adequate, and complete remedy may be had at law." But if one of those courts should render a final decree, in behalf of the plaintiff, notwithstanding he had a plain, adequate, and complete remedy at law, would the decree be a nullity? Could it be assailed, collaterally, as void, upon the ground that no case was made justifying relief in equity? When a party has disregarded a preliminary injunction issued by a Circuit Court of the United States, has been fined for contempt, and is in custody for failing to pay the fine, must he be discharged upon habeas corpus in every case where it appears, upon the face of the bill, that the plaintiff has a plain, adequate, and complete remedy at law? Those questions, it seems to me, should receive a negative answer. I do not understand the court to decide that the Circuit Court could not, under any circumstances, or by any mode of proceeding, enforce the rights which the plaintiffs contend are about to be violated by the defendants; but only, that the court below, sitting in equity, had no authority to interfere with the proposed action of the defendants. It seems to me that this question would properly arise upon appeal from any final decree rendered in the cause, and is not determinable upon writ of habeas corpus.

Upon the delivery of the opinions in this case, Mr. Attorney General stated to the court, in open court, that he would take notice of the order awarding the writ, and that he would order the discharge of the prisoners, without requiring the issue of the writ.