moval 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.

* * *

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 Neb. 452, 456, 6 N. W. 757, 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 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 March 2, 1793, c. 22, § 5 (1 St. 335); Diggs v. Walcott, 4 Cranch, 179, 2 L. Ed. 587; Peck v. Jenness, 7 How. 612, 625, 12 L. Ed. 841; Rev. St. § 720 (U. S. Comp. St. 1901, p. 581); Watson v. Jones, 13 Wall. 679, 719, 20 L. Ed. 666; Haines v. Carpenter, 91 U. S. 254, 23 L. Ed. 345; Dial v. Reynolds, 96 U. S. 340, 24 L. Ed. 644; Sargent v. Helton, 115 U. S. 348, 6 Sup. Ct. 78, 29 L. Ed. 412.

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 intrusted 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, 7 L. Ed. 164; Wilcox v. Jackson, 13 Pet. 498, 511, 10 L. Ed. 261; Hickey v. Stewart, 3 How. 750, 762, 11 L. Ed. 811; Thompson v. Whitman, 18 Wall. 457, 467, 21 L. Ed. 897.

We do not rest our conciusion 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, Carth. 274; Fisher v. Bassett, 9 Leigh (Va.) 119, 131–133, 33 Am. Dec. 227; Navigation Co. v. Homestead Co., 123 U. S. 552, 8 Sup. Ct. 217, 31 L. Ed. 202. Neither do we say that, in a case be

longing 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, 5 [10] Coke, 68, 76; Ex parte Wilson, 114 U. S. 417, 5 Sup. Ct. 935, 29. L. Ed. 89; Ex parte Bain, 121 U. S. 1, 7 Sup. Ct. 781, 30 L. Ed. 849.

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, 26 L. Ed. 861; Ex parte Fisk, 113 U. S. 13, 5 Sup. Ct. 724, 28 L. Ed. 1117; In re Ayers, 123 U. S. 443, 507, 8 Sup. Ct. 164, 31 L. Ed. 216.

Writ of habeas corpus to issue.

WAITE, C. J. (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 meantime, 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.

8

SECTION 45.-SAME-TO RESTRAIN ENFORCEMENT OF ORDINANCES

CITY OF CHICAGO v. CHICAGO CITY RY. CO.

(Supreme Court of Illinois, 1906. 222 Ill. 560, 78 N. E. 890.)

Bill by the Chicago City Railway Company and others against the City of Chicago to enjoin the enforcement of a city ordinance and to restrain the prosecution of certain suits for the recovery of penalties. From a decree in favor of complainants, defendant appeals. Bill dismissed.

CARTWRIGHT, J. On October 23, 1905, the city council of the city of Chicago, appellant, passed an ordinance amending sections 1958

8 Accord: White v. Berry, 171 U. S. 366, 18 Sup. Ct. 917, 43 L. Ed. 199 (1898).

As to the development of the legal conception of office, changing from a property right to a public function or position under the government, constituting neither property nor contract, see the following authorities :

Blackstone's Commentaries. II, 36, office one of incorporeal hereditaments: St. 5 & 6 Edw. IV, c. 16, offices concerning justice and revenue may not be sold, extended to all offices by St. 49 Geo. III, c. 126; Coke, Littleton, 36, grant of office concerning justice, revenue, commonwealth, or benefit of subject, void if to an incompetent person; Coke, Littleton, § 378, in an office concerning the commonwealth it is a condition in law that it be lawfully kept; Reynel's Case, 9 Coke Rep. 95a (1611), a judicial office not grantable for years, since otherwise it might vest in an executor.

Officers appointed durante bene placito, (revenue officers,) St. 14 Rich. II, c. 1. As to other royal appointments, see Smyth v. Latham, 9 Bing. 694 (1833); Shenton v. Smith [1895] App. Cas. 229, 235.

Corporate officers, inherent power of amotion, Rex. v. Richardson, 1 Burr. 517 (1758).

American theory: Hoke v. Henderson, 15 N. C. 1, 25 Am. Dec. 677 (1833); Butler v. Pennsylvania, 10 How. 402, 13 L. Ed. 472 (1850); Wilson v. North Carolina, 169 U. S. 586, 18 Sup. Ct. 435, 42 L. Ed. 865 (1898); Taylor v. Beckham, 178 U. S. 548, 20 Sup. Ct. 890, 1009, 44 L. Ed. 1187 (1900).

9 Only a portion of the opinion is printed.

and 1959 of the Revised Municipal Code of the city, so as to read as follows: [Here follows the text of the ordinance, which makes certain provisions for the comfort and safety of passengers on street cars.]

The Chicago City Railway Company and the receivers of the Chicago Union Traction Company, appellees, filed their bill in this case in the circuit court of Cook county praying the court to enjoin appellant from enforcing said ordinance so far as it is designed to compel them to furnish a sufficient number of cars to carry passengers comfortably and without overcrowding, from prosecuting suits against them to enforce the payment of any penalty for any alleged violation of the provision in question, and from bringing any further suits or taking any steps or proceeding whatsoever thereunder. The amended bill alleges that the provision requiring the appellees to furnish a sufficient number of cars to carry passengers comfortably and without overcrowding is void on three grounds, which are stated by their counsel in their brief and argument, as follows: "(1) That it is in violation of paragraph 96, art. 5, Cities and Villages Act (Hurd's Rev. St. 1905, c. 24, § 62), which provides that no fine. or penalty shall exceed $200 for a single offense,' and also section. 11 of article 2 of the Constitution, which provides that 'penalties shall be proportioned to the nature of the offense.' (2) That it is uncertain, in that it does not sufficiently define the offense for which its multiplied penalties are imposed, and is for that reason void. (3) That it is unreasonable, and therefore void."

The circuit court overruled appellant's demurrer to the bill as amended, and, appellant having elected to stand by the demurrer, the court entered a final decree finding that said provision of the ordinance is void, and enjoining appellant from enforcing or attempting to enforce the same, and from further prosecuting suits brought against the appellees.

The material facts alleged in the amended bill and admitted by the demurrer are: That before, and at the time of, the passage of the ordinance the Chicago City Railway Company, one of the complainants maintained and operated 220 miles of street railway on the streets in the south division of the city of Chicago; that the receivers of the Chicago Union Traction Company, the other complainant, maintained and operated 303.93 miles of street railway on the streets in the north and west divisions of the city, with terminal connections in the south division; that the business center of the city is in the south division, in what is known as the "down-town loop"; that complainants are the only surface street railways serving the city of Chicago, except 12 other lines of surface street railway operating in outlying districts and not owning down-town terminals; that complainants furnish transportation for more than 2,000,000 people, and for almost all the population of the city; that it is, and has been, the custom to permit passengers to stand in the aisles and on the