Lincoln, the capital city and Lancaster County, Nebraska, Volume I, Part 35

Author: Sawyer, Andrew J., 1844- ed
Publication date: 1916
Publisher: Chicago, Ill., The S. J. Clarke publishing company
Number of Pages: 454


USA > Nebraska > Lancaster County > Lincoln > Lincoln, the capital city and Lancaster County, Nebraska, Volume I > Part 35


Note: The text from this book was generated using artificial intelligence so there may be some errors. The full pages can be found on Archive.org (link on the Part 1 page).


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The feelings that possessed them when they were served by a deputy marshal with notice that they had been enjoined from proceeding further in the investi- gation may be better imagined than described. The evidence had disclosed beyond all possible doubt that the police judge was guilty of the charges pre- ferred against him. That he had entered into a compact with gamblers and other lawless members of society to receive at stated times certain fines agreed upon for the conducting of certain occupations which had no right to exist, without the formality of law or proceedings in court. This wanton disregard of duty, this shameless violation of law, this private barter and sale of justice to the gamblers, pimps. and prostitutes of Lincoln were enough to arouse the righteous indignation of every citizen possessing the slightest regard for law, order or decency.


At the time set for the further hearing of the case the council convened. They were certainly in an unhappy frame of mind. They were confronted by a condition and not a theory. The condition was the unseemly spectacle of a police magistrate on the bench in the capital of the state who had shamelessly trailed the ermine of the judge in the filth and mire of the brothels and gambling dens of the city which had honored him with his election.


The theory was the chimerical conception of the police judge and his attor- neys that local self-government, which had become an established fact, and en- deared to the hearts of the American people ever since the landing of the Pilgrim Fathers, and which in fact constituted the very cornerstone of the republic, was, after all, a myth, a delusion, and a snare ; that a city, county or state was powerless to purge itself, in the manner pointed out by law, of the corrupt and reckless officials that might fasten themselves upon the bodies politic.


On the night in question the council chamber was thronged with citizens anxiously awaiting the action of the council.


The condition and the theory stood like grim specters in the presence of the city fathers, unwelcome, as they were forbidding, to the presence of all assembled.


To adopt the theory and await the final decision of the Federal Court as to whether they might be permitted to do a little housecleaning on their own account in their own bailiwick, would necessitate the continuance of the condi- tion. And very likely defendant would complete his term of office long before a final decision could be reached, and the end sought to be accomplished by the investigation completely defeated.


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On the other hand, not to accept the theory was to go counter to the man- date of the court and incur the risk of fine and possibly imprisonment for contempt of court.


While the mayor and council had the greatest respect for the learning and ability of the eminent jurist ( since one of the justices of the Supreme Court) they could not but feel that the injunction had been allowed under false repre- sentations, and that, when the true state of affairs was made known to him, he would not be disposed to look with such contemptuous disfavor upon their acts as upon those who procured the writ to issue. Besides, after a careful investi- gation, they became satisfied that a Federal Court of equity was without any jurisdiction to restrain the action of the council in performance of an act en- joined upon them by the law of the state. Therefore, after a careful, candid, and earnest consideration of the subject, it was unanimously decided to proceed with the investigation, notwithstanding the restraining order of the court.


The council, on the 20th of September, 1887, confirmed the findings of the committee, declared the office of police judge vacant, and instructed the clerk to notify him of their action.


Upon the receipt of the notice the judge declared his intention to continue to hold possession and dispense justice (?) until removed by force.


The following proceedings were then had and done:


"Lincoln, Neb., September 30, 1887.


"Marshal P. H. Cooper :


"You are hereby notified that HI. J. Whitmore has duly qualified and given his bond, and has been duly commissioned police judge to fill the vacancy occa- sioned by the action of the city council last evening, and you will please see that he is duly installed in his office.


"A. J. SAWYER, "Mayor."


The order was promptly carried out. The police judge was bodily removed, and thenceforth it was Judge H. J. Whitmore, police judge of the City of Lin- coln. It is needless to say that justice was enthroned, the office honored, and the ermine kept unspotted as long as Judge Whitmore presided.


We had crossed the Rubicon, and were waiting for developments. The ex-police judge, no longer permitted to mete out justice, and deprived of the emoluments of office, was in anything but an amiable frame of mind, and his attorneys, thwarted in their plans, were most belligerent.


Dire vengeance was threatened upon every one who had participated in the investigation or who had aided and abetted therein. The consequence was that the developments were not tardy in maturing.


On the 8th day of October following, the ex-judge filed his affidavit in the Circuit Court of the United States, setting forth all that was said and done at the September 29th meeting of the council, from which I make the following excerpts :


"Notwithstanding all this the said mayor and all of said council, except N. C. Brock, proceeded knowingly, wittingly, wilfully, boastingly, and con-


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temptuously to disregard the order of this honorable court in the matter of this injunction.


"Affiant further alleges that on the 30th day of September, 1887, a certain notice was served upon him of the action of said council in declaring his office vacant. A copy of which notice is hereto attached, marked exhibit A.


"Said notice was served upon said affiant by P. H. Cooper, city marshal of said city, and affiant told said city marshal that he would not recognize the action of the said city council, and would not surrender said office until law- fully removed or forcibly ejected. The said city marshal then produced the order from said A. J. Sawyer, mayor, directing him to see that the said H. J. Whitmore is duly installed in said office.


"In pursuance of said order said marshal seized this affiant by the shoulders and forcibly ejected him from said office, and wrongfully and unlawfully in- stalled said Whitmore therein.


Upon the filing of the foregoing, the following notice was served upon the mayor and each of the councilmen :


"Whereas, It is suggested of record to us that you and each of you know- ingly violated the injunction heretofore issued in this action,


"Wherefore it is ordered that you and each of you show cause on Tuesday, November 15, 1887, at the hour of 10 o'clock in the forenoon at the United States Court room in the City of Omaha, Neb., or as soon thereafter as counsel can be heard, why you shall not be attached for contempt, if said suggestions are true.


"ELMER S. DUNDY, "Judge."


To the rule to show cause, respondents made return setting forth all the facts in connection with the investigation, the want of jurisdiction of the court to entertain the case, first, because the amount in controversy did not exceed the sum of two thousand dollars, exclusive of interest and cost ; second, because a court of equity had no jurisdiction of the subject matter of the action, and gave the reasons which impelled them to violate the injunctional order, and asked that they might be heard by counsel, and that upon a full hearing they might be discharged from further proceedings.


On the 17th of November, 1887, as appears from Journal M of the United States Circuit Court, the cause came on to be heard upon the order to show cantse, and upon the return thereto of the defendants, upon consideration whereof it is ordered by the court that an attachment be and hereby is granted for the arrest of the defendants Andrew J. Sawyer, mayor of the City of Lincoln, Neb., and Joseph Z. Briscoe, John M. Burks, William J. Cooper, L. C. Pace, H. H. Dean, Lorenzo W. Billingsley, Robert B. Graham, Fred A. Hovey, Granville Ensign, John Fraas, and J. H. Dailey, councilmen of said City of Lincoln, returnable at 10 o'clock, A. M., on Tuesday, November 22, 1887.


Warrants were forthwith issued for the arrest of the offenders and placed in the hands of Deputy Marshal Hastings, who lost no time in making the arrests. The ex-judge was now having his innings, and he and his attorneys were in ecstacies over the rapid progress they were making towards the time


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when condign punishment would be visited upon the culprits who had despoiled him of office and robbed him of the emoluments thereof. They could see no reason why the kind hearted deputy marshal should allow the prisoners suffi- cient liberty to return to their homes and bid farewell to their wives and families or close up important matters then pending before the council; but the deputy marshal, who was a resident of Lincoln, and who had had long personal ac- quaintance with his prisoners, felt no fear but what they would be forthcoming, and allowed them their liberty on promise that they would report in court on the day named.


The journal in the city clerk's office on November 21, 1887, records the regular meeting of the council in the evening of that date, the transaction of a large amount of business, and resolution that "when the council adjourned it was to meet at the B. and M. depot next morning at 8 o'clock sharp."


It was about the hour of sunset on Monday, the day before the time ap- pointed for the hearing, when "Pap" Hastings, the deputy marshal, hurled him- self into the presence of the contemptuous councilmen, with those ominous writs which he parceled out to each defendant by name.


After a careful inspection of the documents, Councilman Billingsley, who, with great fortitude, had moved that the office of police judge be declared vacant, was observed to raise his optics from the parchment and gaze with a faraway look to where the sun was descending behind the western hill tops, but Council- man Dean, whose optimistic nature would not permit him to contemplate any ill omens, and whose unclouded nature was ever as serene as a summer's sky, essayed to dispel the gloom that was settling down upon the disturbed defend- ants by imitating the action of Richmond when he summoned his trusty generals about him on the eve of the meeting with Richard on the field of Bosworth.


Addressing the disconsolate around him, and pointing toward the departing orb, he said,


"Look ye. the weary sun hath made a golden set, And by the bright light of his fiery car Gives token of a goodly day tomorrow."


He paused; for the moment solemn stillness reigned. For the time bleak melancholy seemed to mark each pensive prisoner for her own. Meanwhile Dean's eyes swept the heavens as with telescopic vision. Again he broke the silence, "See yonder constellations in the darkening skies, Ursa Minor, Ursa Major, Orion and the far away Pleiades. I tell ye for a truth they are, at this very moment, each and all in complete juxtaposition. From boyhood up I have read the starry heavens as an open book. I have learned to cast the horoscope with the same unerring certainty that the whaler casts the harpoon, and I declare to ye, the heavenly signs are all propitious."


Just at this moment, when he was beginning to wax eloquent over objects too remote for the contemplation or comprehension of ordinary mortals, he was interrupted by Councilman Fraas, who, thinking it unbecoming for one culprit to occupy so much precious time, gave vent to his Teutonic feelings in the laconic words which have since become historic: "Es macht mir müde."


J. M. Burks said this is "the winter of my discontent." Pace was heard to


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mutter that "The paths of glory lead but to the grave," while all the rest joined in the chorus,


"Our honor and our freedom's at the stake


Which to defend we must away and answer to the summons of the court."


Scarcely had the refrain died away when the demoniac voice of the ex-judge, who had been a silent, unobserved spectator, rang out,


"And my fame on brighter pages Penned by poets and by sages Shall go thundering down the ages."


The morrow came; but not the good one predicted by Dean. The sky was o'ercast with clouds. The earth was covered with a mantle of white. The snow was still falling, and the wind was chill and piercing.


At 8 o'clock the city fathers answered roll call at the depot and were soon speeding as fast as steam would carry them into the presence of the court whose majesty they had offended. Many of Lincoln's prominent citizens were on board, anxious to learn the fate of their city council. It was here the writer first met the inimitable Walt Mason, dispatched by the Journal to chronicle all that might befall the reform administration.


No one in the state could wield a more ready, graceful, or graphic pen than he, and the daily pen pictures of the trials, tribulations, temptations and vicissi- tudes of the city fathers furnished by Walt to the press will keep his memory ever green in the recollection of all who had the pleasure of reading them. Nor did he, when the bolts of the prison doors grated harshly upon the ears of the condemned, for once desert them, but boldly entered in, snuffed the same tainted atmosphere, drank from the same canteen, sat at the same festal board, slept in the same bunks, and gave the world a true and faithful history of prison life as experienced in the Omaha bastile.


But we digress. An hour and a half's ride and the voice of the conductor cried out, "Omaha !" Alighting from the coach and accompanied by the deputy marshal they were soon on their way to the courthouse, the observed of all observers.


Reaching the door of the courtroom, they found the spacious hall of justice packed with legal luminaries and eager spectators. A bailiff in commanding tones said, "Make way for the prisoners!" The way was cleared, and they were ushered across the room and furnished seats in the jury box, at the right of the Honorable Judges Brewer and Dundy, who had already taken their seats and were awaiting the arrival.


When all were seated, such a deathlike stillness pervaded the room that the thumping of the hearts in the breasts of the prisoners could be heard, "like muffled drums beating funeral marches to the grave."


At length the silence was broken by Judge Brewer, who inquired if the attor- neys were ready to proceed in the matter of the contempt of the Lincoln City Council. Mr. G. M. Lambertson, their attorney, arose and informed the court that they were ready to proceed, and asked that Councilman Billingsley be per-


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mitted to show cause why the defendants should not be punished for contempt. Mr. Billingsley had prepared an elaborate review of the investigation from be- ginning to end, which, to the minds of the councilnen, presented excellent rea- sons why they should not be punished for their action. He assured the court that not one ill word or harsh term had escaped the lips of any of the councilmen at the time they took the action that had called forth the writ of attachment, but, on the contrary, they had expressed the deepest regret that a judge of so high character, unquestioned integrity, and great legal attainments should feel it his duty to bar their action in an investigation which to them seemed neces- sary to secure better municipal government ; that the mayor and the city council had endeavored to act with decorum and propriety becoming their official posi- tion ; that they relied upon justice at the hands of the court by presenting the justness of their cause. He called the attention of the court to the accession of the city council to the request of the ex-police judge and his attorney, that the case might be heard by the council as a body, and the postponement of the hear- ing for their accommodation ; how he had taken advantage of the postponement to thwart their action; how his attorney had, by misrepresentations in the bill, imposed upon the court ; and that without such misrepresentations he felt sure that the court would not have allowed the injunction; that, while there was a bare possibility that the court might look upon their action in declaring vacant the office of police judge with disfavor, on the other hand a sense of shame, dis- grace, and humiliation would follow from a failure to carry out what they con- sidered to be their sworn duty in the premises, a disregard of which would bring upon them the criticism, gibes, and contempt of all good citizens, and would continue in office as police judge for two or three months, or probably until the end of his term of office, one whom they decmed utterly unfit for the position and one who had brought disgrace and shame not only upon the office he held, but upon the City of Lincoln; that the council had endeavored to inform them- selves upon the legal aspect of the case and were thoroughly satisfied that the court was without jurisdiction to entertain the case, and that the ex-police judge, if he had any cause of action, had adequate remedy at law. That the bill of complaint did not show a sum amounting to $2,000 in controversy, exclusive of interest and costs; that these reasons were offered to show the court that the violation of the order was not done insolently or recklessly or without respect to the honor and dignity of the court, and prayed that their honors might consider these reasons in mitigation of the offending.


At the close of Mr. Billingsley's statement Mr. Lambertson asked permission to introduce some oral testimony, which was granted. The mayor was then sworn and examined by Mr. Lambertson as to the character and standing of several members of the city council. Allegations contained in the bill upon which the injunction was secured reflected seriously upon the character and standing of the councilmen, and would naturally lead the judge who granted the order to think that the Lincoln City Council was made up of gamblers, or those in sympathy with the gambling fraternity, and the purpose of the examination was to disabuse the mind of the court of any preconceived erroneous impressions he might have formed. The testimony developed that all of the councilmen were gentlemen engaged in lawful occupations. That they were men of excellent


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business standing, honest, honorable, and of high character, and that they had no sympathy or affiliation with the lawless elements of the city.


The ex-judge was then called to the stand by his attorney, Mr. Burr, and detailed minutely the circumstances and transactions of the council at the meet- ing immediately preceding that at which the final vote was taken and the one at which the question of adopting the report of the committee without reading the testimony was discussed and voted upon.


These were the only two witnesses examined. The examination took up the forenoon. Court convened in the afternoon and listened to the argument of counsel. Judge Brewer then stated that he would decide the matter in ques- tion at 10 o'clock A. M. the next day, and the council filed out, as one of the newspapers stated, "with considerable time left in which to contemplate the un- certainties of this life and vicissitudes of aldermanic existence."


Promptly at to o'clock the next morning the judges were on the bench and the prisoners in the box. It is needless to remark that they also were on the tiptoe of expectation. During the adjournment they had canvassed the prob- abilities of a favorable or unfavorable decision of the court and had heard the subject very generally discussed. Most of the members of the bar and public sentiment generally believed that the decision would be favorable, and the buoyant expression of hope beamed from the countenance of the members as they sat awaiting judgment. Councilman Ensign was so sure of a favorable outcome that he was heard to whisper to the members of the council that they needn't worry ; that he would pay all fines that might be assessed against them.


Judge Brewer then began to deliver his opinion, the courtroom being again thronged with spectators. The judge reviewed the case at length and proceeded in an elaborate opinion to show that the court had jurisdiction of the subject matter, and that, while the bill was defective in not stating any amount in con- troversy, yet that was a matter which could be amended. A court of equity had the right to enjoin the proceedings of a state tribunal in a case of the nature presented by the bill. After sweeping away the various objections urged by attorneys for the council as to jurisdiction, he then came to the reasons urged in mitigation of the offense and said that another matter should be taken into consideration; that is, what circumstances of expiation, wrong, or trickery, fancied or real, provoked the action which was done.


"It is," said he, "human nature to resent an act, a wrong accomplished by a trick, and we must always recognize that as a part of our common human nature. If parties, mistaken or otherwise, fancy they have been tricked into a position where their proceedings are likely to be baffled, it is not to be wondered at that they felt keenly, and the court cannot blind its eyes to such a matter as that."


Then he reviewed what the defendants had said in regard to the postpone- ment of the hearing of the investigation and the acceding to the wish of the ex-judge and the alleged deception practiced upon him by the council.


"These things," said he, "ali come in mitigation. These things all have in- duced me to feel that I would not be justified in imposing (here every coun- tenance brightened up in anticipation that he was about to say 'fine') impris- onment." A bolt from a clear sky could not have produced a greater surprise than when the judge said "imprisonment." They were counting on complete


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exoneration. "On the other hand," said he, "they are gentlemen of character and position. They represent the second city in the state, as I am advised, in wealth, in population, and in business. ( Here a gleam of hope seemed to animate the tired council. ) They are the council of the capital city of the state. If the court should say that men occupying so high a position can disregard the process of the courts (here all hope departed) what may we expect from men having no such backing of position, respectability and influence? Can we ask the poor, friendless man to obey the process of the court if men occupying positions, such as these men do, do not? Am I not compelled by the very fact of the respectability of the gentlemen, of the position that they hold, to impose such a fine as shall be a lesson, not merely a punishment to them, but a lesson to all? (At this point the stalwart councilmen showed signs of great depres- sion. ) I have tried to look at this case in all of its phases, and, while I am very glad that I was able to-come to a conclusion that no imprisonment was proper, and it will be unnecessary and therefore an improper exercise of power to send any one of them to jail, I have, on the other hand, felt that I could not pass it by lightly, and that I ought to impress a heavy fine. I believe that in so doing I shall benefit these defendants and every good citizen of this state if the size of the fine be such that every citizen, high or low, shall understand that this is a Government of the law, and that the processes of the courts are to be obeyed, and that every wrong may be righted in the orderly administration of affairs, and that no such proceedings of taking the law into one's own hands as was initiated in Chicago can be tolerated anywhere. Three of these gentlemen voted against taking up these matters: Mr. Briscoe, Mr. Burks and Mr. Cooper. The fine imposed upon them will be $50 each. The mayor had no vote, but was enjoined from appointing an officer ; he had nothing to do with the removing of the petitioner. After that removal was accomplished, although the mandate forbade him to make an appointment, I can well see how one might say 'here is a vacancy of office, not by my action ; I cannot leave the City of Lincoln without a police judge,' and so acted. The same fine will be imposed upon him. Upon the other eight the fine will be $600 upon each one. The order will be that they pay this fine and the costs of the proceedings and stand committed to the custody of the marshal until it is paid."


Judge Dundy followed, and in a terse and decisive way concurred in the opinion of Judge Brewer.


The generous councilman who had promised to take care of the fines was im- mediately seen by his fellows, but his pocketbook was as emaciated as himself, for it contained only $10.13. It was suggested by some that even that amount might be served to liquidate the fines, had not the witness on their behalf attrib- uted such intelligence and characters as to remove them from the category of ordinary councilmen. As it was, the fat was in the fire, and the only thing left was to be committed until the fine was paid, or their release secured from a higher tribunal.




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