Omaha daily bee., 1905-09-21


prisoned them to punish them for con-
tempt In that case the city council plead
the fact that the judgment was absolutely
void and was not binding upon the city
supreme supreme C court Of this state has said that
is no excuse. II IL Is a good excuse, you
can plead in the injunction proceedings-it
is a good defense in an Injunction proceed
Ing but It is not a defense in the citation
for contempt.
Did Best to violate Writ.
Now, it is admitted in this case, how
ever, that these councilmen were served
with the writ, that the bond was given;
that the city council was organized; that
they proceeded to transact their business;
and when they came to this writ it Is also
conceded that their attention was called TO
the fact that this injunction had been
served-and think Mr.. Breen did his full
duty to the court when he advised those
councilmen not to pass this ordinance. So
that as II now appears from the record in
this case these defendants, members OF
the city council, did eyerything tneS c1u.1 Sa[i
had violated the writ. / also believe they
expected to be punished for contempt until
after the discovery was made of the fatal
defect in the passage of the ordinance.
Now. supposing that there was no detect
in the passage of the ordinance and that
there was no question about a third and
last reading Of the ordinance, and that the
matter had been disposed OF and disposed
of according to law so far as the third
sage OF the ordinance was perfect in every
respect. but, let US suppose now, that in
the early history of this ordinance there
was some jurisdictional defect so that the
ordinance was void--then would that be a
defense in this kind of case?
Now, the court does not believe II would.
The court does not believe that would be
supposlng the court should enjoin A, B
and c from moving large stock Of goods
from a certain building and that writ
had been issued and bond given, ana
that 1t had been properly served by am, am,
that these various defendants were in the
building, had the goods down from the
shelf, and piled upon the floor, vans backed
up against the building and they were
about to move the stock of goods. Now, we
must construe section 669 of the code that
the only authority the court has Is 70 punish
after the horse has been stolen, but does
the court have power under that section
Of the statgte not only TO 6nsS fGr cone one
tempt during the time 1t is being violated
or must the court wait until after the wrlI
has been violated, or after the horse mas
been stolen, and then punish for con-
tempt2
Intent of the Law.
Now, it seems to the court that section
was the intent not only to punish for con;
tempt of court after an injunction had
been absolutely violated, but TO prevent
the violation of the writ and also 10 pun
Therefore it is the opinion of the court
that inasmuch as these defendants under
took to pass this ordnance-they did actu'
ally pass the ordinance, and whether OF
not there is a fatal defect in the ordinance
is not defense in a contempt proceeding.
Why, II we construed the section of the
statute in that way and the court coulo
actually see a building being torn dowG
that the court had enjoined from oelng
torn down, he would have to wait until
the last brick was removed before he coulo
punish for contempt or If ,,IS he would - en-,
quarter section of land they could success
fully move that building over to the line
and because they did not move II on the
land then they could not be guilty, OF con,
tempt. And l must consider ana L rec
an abiding conviction in this case thaI
contempt as IL the ordinance was perteci
and as II the contract was In force TO-DAY
between the people of Omaha and th'
Now, let me divert moment in this case
When this writ was presented TO the couri
stance, that 1t was always my practice
never to grant a temporary Injunction anc
! only, to grant restraining order tor suet
speedily vacated in the event that 1t wai
improperly granted, and l told MT Gillel
would put the hearing for Friday-tht
writ was granted on Tuesday-and | would
set II for Friday. to give the council ar
opportunity to Yacate this writ OF th'
court II It was improperly Issued.
No Mitigating Circumstances.
ing circumstances in this case at all.
don't know of anybody clRmoring that thl;
contract would not expire until the last day
of December, as l understand IL; so there
is no excuse, in any manner, shape ol
form, for the violation of this writ. Why
IL this writ was improperly issued by th'
court. the court set a speedy nearing fol
the matter 10 be dissolved, so that thl'
ordinance might have been passed and dis
posed OF in very short order. So that in
asmuch as this was not a public improve
ment in which the people generally were
Interested and it being contract tina
they were about to enter into II seems e
the court that II is as aggrayaung a con
tempt OF court as the court has evel
known during its occupancy Of the bencl
or as a lawyer at this bar. Now, i an
very sorry about this maIternyery y sorry
In my judgment, after these councilmer
were presented with this writ, anC
especially after the city attorney told then
not to violate the writ, that after tha
| they violated the writ, they we're really
! guilty-as guilty-well, II seems TO me tina
| there was more done 10 law and order by
| the city council that night than has beer
done by all the chicken thieves in Omaha
during the last year. Anarchy and rev
olutiOn reigned that night in the city
While Mr.. Connell in this case feels tina
the court has been harsh-has caused thes'
| trial-yet the court feels that this hal
been very unusual violation Of the wri
| of the court.
| Court Sees NO Excuse,
II some railroad company was working
It's way into Omaha, OF large Interest,"
being developed here, such as an elevator
| or something Of that kind, or there wal
/ a clamOr we will say for some public i'm
provement and some taxpayer was askinl
! an eXorbitant price for mis- property anS
enjoining an ordinance then there woulO
\ be some excuse. But In this kind OF
| case In the judgment OF the court Their
| is no excuse. And the court is firmly o
| the opinion that these defendants are jus
/ as guilty as II that contract today wa
| binding between the Omaha Gas conpan!
| and the people OF OmRha-and the couF
| hnds that these defendants and each o
| them have been guilty OF contempt Of tn
| district court OF Douglas county Nebraska
Mr.. Connell. attorney for the council
men then said
we desire TO except and to give motto
Of the filing OF a motion for a new trial
That is a necessary preliminary that W
have to take. your honor"
The CouTt-Yes. sir. How long woul
you want?
Mr. Connsll-I would want TO CAREFUL
prepare that motion for a new trial, sa
! three days, the statutory time.