Omaha daily bee., 1905-09-21
COUNCILMEN IN CONTEMPT
Such iI Decision Of Judge Sutton Of the
District Court,
SENTENCE CONES SATURDAY MORNING
Back, Dyball, Evans, Huntington
and Schroeder, who Voted
for Gas Ordinance, Are
the Defendants.

Judge Sutton Wednesday morning an
nounced that he would hold Councilmen
Back, Dyball Evans, Huntington and
Schroeder guilty OF contempt OF the dis
trict court of Douglas county when they
voted to pass the so-called gas ordinance
through the city council despite the re-
straining order OF the court to the con-
trary. The court deferred sentence until
Saturday morning. At that time w. ]. Con-
nell, counsel for the FIVE men held TO be
in contempt, win present a formal motion
for a new trial 1t is expected that this
will be overruled and sentence passed.
What this will be cannot OF course, be
guessed. but whatever 1t may be there un-
doubtedly will be an appeal, and in case
the sentence should be 20 jail habeas corpus
proceedings at once will be resorted to. II
is understood.
Judge Sutton took considerable time to
give his reasons for the finding Of guilty
and to state the conclusions Of law he had
reached.
Text Of the Ruling.
In handing down his decision Judge SUIT
ton said
When the court took this case under
advisement it did so for the purpose of
investigating mainly one question, whether
or not a fatal defect in the passage OF an
ordnance was defense in proceeding
The court also has investigated another
proposition that has been extensively
argued, and that is whether or not, the
court had Jurisdiction of the subject-ma tier
in the petition for injunction.
IL appears to the court that the test of
Of the subject matter of bill for injunc-
uon Is whether or not the matter is purely
ministerial and legislat ative-whether or not
1t Is ministerial, legislative and contractual.
now, II the city council had undertaken
to regulate the police AFFAIRS of the city by
providing Tor fine and imprisonment for
judgment of the court this court would
have no jurisdiction whatever in any man
ner or form, and would not have turisdic-
tion of the subject matter in a petition
alleging such legislation. But where a
proper petition has been presented to the
court, and where the city council is about
to enter into a contract Of agreement where
II is contractual relation-now, 1t may
be ministrial, 1t may also be legislative
the legislation, then, In the opinion OF the
court, the court always has Jurisdiction
OF the subject matter.
Court Has JurisdictiOn,
Now, II Is the opinion of the court that
Where the city council is entering into 8
franchise, or extending a franchise, OF
where 1t is entering into a contract with
any company, person, or corporation, then
In certain sense, every taxpayer in the
city OF Omaha, to a certain extent is q
party TO that contract. And II is the opin.
lon OF the court, that the court always has
jurisdiction. of the subject matter when the
council is about to place a burden upon the
taxpayers.
Now, in this particular case before the
court, or In the injunction suit the city
council was about to enter into a contra ct
with the Omaha Gas company providing
that certain contract between the people
| OF Omaha, or between the city OF Omaha
and the Gas company, the consideration ot
which was to be paid by the taxpayers OF
by the city OF Omaha-whichever way you
Now, in that case, If the petition was
a proper one, there is not the shadow ot
a doubt In the mind of the court but what
the court had Jurisdiction of the subjec
| matter OF that petition for Injunction.
NOW, 1t has been contended here by very
| able counsel, that that petition does moi
state a cause of action and that there is !
mixture Of conclusions OF fact and law
| plead in the petition. f}.pE
new, in the judgment Of the court that 1,
~ ~ ueIense IN a contempt proceeding
because, even though that would he p
complete defense in the injunction suit
thdt is matter, in the opinion of the court
that cannot be raised in contempt case
30 that, no matter whether or not thi,
petluon states cause of action so faI
as the injunction proceeding is concerned
or no matter whether conclusions of law
| or tact are plead there or not or whether
me me petition is insufficient itself, in the in
junction suit, II the court had jurisdictior
OF the Kind and quality OF the matter ir
the petition for injunction, then the court
n,ith ,.JI JutiSsoictlon S over the subject matter
contempt. i0'
Few Defenses to Be Made
NOW, 1t appears to the court that ther,
are Few defenses that can be made In Z
| contempt case. "
OF course, whether or not the court hat
| jurisdiction Of the subject matter IS al
ways defense, and II IL did not then IN,
! writ would be absolutely void, and abou
! the only matter or the only other tiefens,
| 10 a contempt is that you have not 90
| jurisdiction OF the person.
In this case, the writ was presented [,
! the court and signed, the bond was given
there Is no dispute about that So tina
| these defendants were presented with I
| writ commanding them not to do a certaiI
| thing. The court had Jurisdiction OF IN,
| subject matter So in my Judgment :
| proper writ based on proper petition wal
| presented to the city councilmen
| New, the other question as to whether o.
not the defect-fatal defect in the passaR,
| OF an ordinance is a good defense In {
| contempt proceeding, is not quite so clear
have an abiding conviction in the mat
| ter, however, but II is not quite so cieal
because our supreme court has not passed
| on that same proposition
Our supreme court has passed on thii
proposition, however, that where a cit,
| council has been directed by the courts
| to pay-by mandamus-a judgment anC
! they failed to do that, and the court i'm