People ex rel. Wayman v. Zimmer

Decision Date07 December 1911
Citation252 Ill. 9,96 N.E. 529
PartiesPEOPLE ex rel. WAYMAN, State's Atty., v. ZIMMER, Sheriff.
CourtIllinois Supreme Court


Original petition for mandamus by the People, on the relation of John E. W. Wayman, State's Attorney of Cook County, against Michael Zimmer, Sheriff of Cook County. Writ ordered.

W. H. Stead, Atty. Gen., and John E. W. Wayman, State's Atty. (Thomas Marshall, Zack Hofheimer, and George W. Miller, of counsel), for petitioner.

John Stelk, for respondent.

Daniel Donahoe and James Hartnett, for Edward S. Gard.


This is an original petition filed in this court in the name of the people, upon the relation of the state's attorney of Cook county, praying for a writ of mandamus to compel Michael Zimmer, as sheriff of Cook county, to apprehend Edward S. Gard and deliver said Gard to the jailor of Cook county, and to imprison and hold said Gard in accordance with the terms of a certain order theretofore entered by Judge Scanlan, one of the circuit judges of Cook county, while sitting in a branch of the criminal court of said Cook county, by which order the said Gard had been adjudged guilty of a contempt of court and ordered to be confined in the county jail of said Cook county for the period of sixty days. An answer has been filed by respondent, and the relator has interposed a general demurrer to said answer, and briefs and arguments have been filed by the relator and by the respondent. By permission of court Gard has been permitted to file a brief, although leave was denied him to file an answer.

The facts involved in this case are not in dispute, and are, in brief, as follows: A day or two prior to the 21st day of November, 1910, one William Schubert was arrested by the police in the city of Chicago on suspicion of having committed the crime of robbery and was confined at one of the police stations in the said city without a formal complaint having been lodged against him with a committing magistrate, while the charge against him was being investigated by the police. On the 21st day of November a writ of habeas corpus for the discharge of Schubert was sued out before Judge Scanlan, one of the circuit judges of the said county, who was then holding a branch of the criminal court of said county. Schubert was produced in court by Edward S. Gard, a police officer of the city of Chicago, in response to the command of the writ, who stated orally to the court that Schubert was being held by the police on the charge of robbery and asked that a hearing in the habeas corpus case be postponed to give the police an opportunity to have present at the hearing the prosecuting witness. Judge Scanlan fixed the amount of bail which Schubert should give pending the hearing, but which he was unable to give, and continued the case until November 23d. Upon that day, on the case being again called and the prosecuting witness having failed to identify Schubert as the man who had robbed him, Gard and a representative of the state's attorney's office being present, Judge Scanlan in open court inquired of Gard if there were any other charges against Schubert, or if there was any reason why he should be held further, and, upon Gard informing the judge there were no other charges against him and there was no reason why he should be further held, an order of discharge was entered by Judge Scanlan discharging Schubert, and Schubert returned with an officer to the jail. As he left the jail Gard re-arrested Schubert upon two warrants which Gard had sworn out of the municipal court of Chicago on November 22d, charging him with vagrancy and with living in an open state of adultery, which warrants he had in his possession at the time Schubert was discharged by Judge Scanlan in the habeas corpus proceeding. The matter of the re-arrest was immediately brought to the attention of Judge Scanlan, and upon investigating the matter he caused formal proceedings for contempt of court to be instituted against Gard for falsely stating to him, at the time the habeas corpus proceeding was disposed of, that there were no other charges against Schubert and that there was no reason why he should not be discharged. Gard appeared in the contempt proceeding, filed a formal answer, and upon a full hearing he was adjudged guilty of contempt of court and ordered committed to the county jail of Cook county for 60 days. Thereupon a certified copy of the order was delivered to the relator, as sheriff of Cook county, and he arrested Gard and confined him in the jail of said Cook county. Within two hours of the entry of the contempt order by Judge Scanlan and the incarceration of Gard in the county jail, Gard was released from imprisonment in the county jail by a writ of habeas corpus issued by Judge Petit, one of the circuit judges of Cook county, who, upon Gard being brought before him, admitted him to bail on his own recognizance, and subsequently, on February 11, 1911, entered an order discharging said Gard from imprisonment by virtue of said contempt order.

The petition and return filed in the habeas corpus proceeding before Judge Petit showed, upon their face, that the contempt of which Edward S. Gard was found guilty was committed in open court and in the presence of Judge Scanlan, and that said Gard appeared in the contempt proceeding before Judge Scanlan and filed an answer in the contempt proceeding and was fully heard and was present at the time he was adjudged guilty of contempt; that is, that Judge Scanlan in the contempt proceeding had jurisdiction of the subject-matter of the contempt and of the person of Gard at the time Gard was adjudged to be in contempt of court by Judge Scanlan and committed to the county jail.

Two questions are presented for decision upon this record: First, did Judge Petit have jurisdiction in the habeas corpus proceeding before him to discharge Edward S. Gard from the contempt order? And, secondly Gard having been discharged, if his discharge was wrongful, has this court, by mandamus, jurisdiction to direct the respondent, as sheriff, to re-arrest Gard and enforce the order in the contempt proceeding against him by imprisoning him in the county jail?

[1] The writ of habeas corpus is a high prerogative writ, and when properly issued supersedes all other writs, and by reason of that fact it should be confined to its legitimate office, otherwise an ignorant, reckless, or partisan judge, by usurpation, may through the writ work a great wrong to society and the state by discharging offenders who have been lawfully convicted and sentenced to imprisonment by other courts while legally exercising co-ordinate jurisdiction with the court granting such discharge. It has never been the office of the writ of habeas corpus to operate as a writ of review, and we take it that no well-considered case can be found where it has been held that the writ may properly be used to review the judgment of a court where the judgment sought to be reviewed had been rendered by a court which had jurisdiction of the person and subject-matter of the suit in which the judgment had been rendered. Ex parte Smith, 117 Ill. 63, 7 N. E. 683;People v. Allen, 160 Ill. 400, 43 N. E. 332;People v. Jonas, 173 Ill. 316, 50 N. E. 1051;People v. Murphy, 212 Ill. 584, 72 N. E. 902;People v. Superior Court, 234 Ill. 186, 84 N. E. 875;People v. Strassheim, 242 Ill. 359, 90 N. E. 118;Martin v. District Court, 37 Colo. 110, 86 Pac. 82,119 Am. St. Rep. 262; Ex parte Parks, 93 U. S. 18, 23 L. Ed. 787;Kaizo v. Henry, 211 U. S. 146, 29 Sup. Ct. 41, 53 L. Ed. 125;Harlan v. McGourin, 218 U. S. 442, 31 Sup. Ct. 44, 54 L. Ed. 1101.

In Ex parte Smith, supra, Smith was adjudged guilty of contempt and fined and ordered committed to jail until the fine was paid for refusing to answer questions before a grand jury. He filed a petition for habeas corpus in this court. The writ was denied. The court said, among other things (117 Ill. 65, 7 N. E. 684): We regard the petition in this case as a mere attempt to review and set aside a judgment at law for an alleged error in the proceeding where the court clearly had jurisdiction both of the person and subject matter of the suit. This cannot be done. The petition shows that the petitioner was regularly brought before the grand jury as a witness, that he refused to answer certain questions propounded to him, and that the court thereupon imposed a fine upon him. Whether the court was authorized, under the circumstances, to impose the fine, was a matter which the law authorized and empowered the court to determine, just as in any other case of alleged contempt. While, for the purposes of the argument, it may be conceded that the court erred in reaching the conclusion it did, nevertheless its right and duty to pass upon the question was clear beyond all question. If the judgment was erroneous, as is claimed, the remedy was the same as in the case of any other erroneous judgment where the right of appeal or writ of error is given. We regard the order directing the defendant to stand committed till the fine and costs were paid in the nature of final process-a mere means of enforcing the payment of the judgment-which would have been suspended by any order staying the judgment itself. If, as claimed, the judgment is erroneous, a writ of error was the appropriate remedy, and upon that hypothesis we must assume the reviewing tribunal would, if asked, have made the writ a supersedeas, which would have suspended the order of commitment till the case could be disposed of on the merits.’

In People v. Allen, supra, the petitioner was indicted, tried, and convicted in the criminal court of Cook county. While in the penitentiary under sentence he filed an original petition for habeas corpus in this court. In that case this court pointed out that the criminal court had jurisdiction of the person and subject-matter, and said that while there might be some question in regard to whether the judgment...

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    ... ... Eisen v. Zimmer, 254 Ill. 43, 98 N. E. 285, Ann. Cas. 1913B, 876; People v. Petit, supra; People v. Smith, supra; Swager v. Gillham, supra; People v. Shurtleff, ... ...
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