Omaha daily bee. (Omaha [Neb.]) 187?-1922, 1902-08-29
JUDGES MAY STAY IN JAIL
sanbsrn Refuses hewitt and Psdsn Habsas
Corpus Privilege.
HOLDS THEY CANNOT Be PARDoNED
sustains the Course of Judge Phillips
In the st. Clair County bond
Controversy and Man
damus Procedure.

ST. PAUL, Mimi, Aug. 2S.--The United
States court OF appeals, In an opinion by
Judge sanborn, today denied the applica-
tion for writ OF habeas corpus or other re-
lief in the cases of Thomas d. hewitt and
Samuel G. Poden, judges Of the county court
of st. Clair county, Missouri, and sustains
the right of federal judge to imprison
judges Of county courts for contempt in
refusing to carry out the mandates OF a
judgment issued by him.
This case, the like Of which, IL is said,
has not come before the courts since the
early and unsettled days OF the republic,
dates back to a period shortly after the
close Of the civil war. st. Clair county,
In aid Of the construction Of a railroad,
issued a large amount OF bonds and when
these became due the county sought to
evade payment and to have the courts in
validate them. The judgments against the
county, aggregating more than 5000, 900,
however, were issued In the United States
court. The county fought on, adopting
every legal device to defeat the enforce
ment Of the Judgment and the case has
been in the court in some form until about
two years ago, when United States Judge
Phillips. at the instance Of one OF the
judgment creditors, issued a writ Of man
damus directing the county court to levy
tax for the partial payment of the In
debtedness. The judges refused to obey
the mandate. holding that the bonds had
been illegally issued. Then came the or
der of arrest and commitment for contempt
of court.
DIgnitaries Play Hide-and-seek.
The judges evadsd the federal court Of
ficers, who sought to serve the writs on
commitment, hiding in the woods and other
places. Meanwhile the county courts were
not held. criminals went untried, civil
cases could not be heard, the county roads
and bridges fell into decay and other busi-
ness commonly transacted by the county
court was wholly neglected.
Recently, however, the marshals discov-
cred the hiding places of the fugitive
judges and arrested them. Their counsel
petitioned the court Of appeals for their
release on bail and for an order staying
proceedings until an application could be
made to President Roosevelt for a pardon.
In denying their application Judge San
born declines to enter into the merits of
the original controversy as to the legality
OF the bonds, and holds that writ Of
habeas corpus cannot be made to perform
the Office of a writ Of error, as Il is avail
able only. when a prisoner is Illegally re-
strained by court without power to make
an order for contempt. In that portion
Of their petition asking that proceedings
be stayed pending an appeal for pardon. the
petitioners alleged thatt theff contempt
was IAN offense against the United States"
In answer to this, Judge Sanborn holds
that their commitment to prison until they
comply with a mandamus directing them
to levy the tax referred to is not OF a Grim
inal character. but civil, remedial and
coercive in its nature, because 1t is of the
character of an execution to collect judg-
ment and that the president is without
constitutional power to grant reprieve or
issue pardon in such a case.