Show THE compensation there was considerable change in the usual order of proceedings in the church case came at the session of the territorial supreme court feb 12 11 chief justice sandford Band ford and associate justices boreman and henderson were on the bench united states attorney hobson jf A colorado who is special assistant to attorney general garland in the suit of the government against the church for the property of the latter was present and as that suit was to be called up it was understood that mr hobson would express himself in the line indicated on a former occasion this he did and it was conceded by those present that his speech though not very extended was an able effort the ball was opened by the court calling the case of the united states vs the late corporation of the church of jesus C christ of latter day saints mr William sIf if the court please cloase last lafit october a motion was made for this court to fix the compensation of the receiver and his attorneys attorney ir it was referred to judge sprague and the the testimony was taken and the report returned I 1 move the court that it now proceed to fix the compensation pensa tion of of the receiver and his counsel and order that they be paid there are some objections by the government and I 1 also have a few considerations to present judge boreman I 1 understand the court was to wait for the report by judge harkness on the charges against the receiver mr williams the matter may be taken under advisement until that that report and then determined MR MB HOMON HOBSON sald said in substance under the order of the court to take testimony I 1 understand der stand there is no need in chancery practice of filing exceptions one rule in chancery courts is to refer the matter of compensation to an examiner whose finding is final another course is to have the examiner report the testimony to the court in this case this was done this leaves it as though the testimony was taken in open court that is the condition here and we have a right to make a showing without filing exceptions I 1 have hate however to save a point filed exceptions which I 1 will read in the as 8 supreme cpr court of the territory for q of utah the united states of america vs the late corporation of the church of jesus christ of latter day saints et etal ai and now comes the united states of america by counsel and files the following exceptions to the report of E T sprague special commission er of the above entitled court filed in said cause on the day of 1888 said report having been made under and in pursuance of an order of this court entered the ath day of october 1888 and the same having been concerning the compensation to be paid frank H dyer receiver and counsel and concerning other matters set out in said mid report 1 the said united states excepts to that portion of the report of said commissioner which recommends that an allowance be made to frank H dyer receiver receive of the sum gum of for the following reasons to wit that said sum recommended py the commissioner is excessive aho i unreasonable that under the law governing the allowance of compensation in cases such as this said receiver should at the present time be allowed a reasonable compensation by the year or by the month since he was appointed the same being proportionate to the duties performed by him and the responsibilities under which he ahas lia been abeen placed that uny compensation which the receiver should receive at this time and whilst this cause is pending n ding in the supreme court of t the re united states is undetermined should be out of the income and receipts which have accrued from the funds in the hands of the receiver during the time that he has been in office and should in no wise be taken from the body of the fund that the compensation allowed to the receiver as assumed by the commissioner is upon the basis of per cent whereas from the nature of the services performed and from the fact that in managing and handling said property r erty said receiver has practically my been under very little responsibility his compensation pensa tion should be estimated not on the basis of per cent but u upon pon the basis of a fair salary to be paid him and lastly for the reason that whilst said receiver charges for his services in regard to the gathering in of the estate and fund in his hands it appears from his accounts rendered that the real labor connected with the matter has been performed either by his attorneys or iry by subordinates whose salaries and expenses have been paid out of the funds in in his hands 2 said united states further excepts to said re report 0 rt and to that portion thereof wl which ch recommends an allowance of to P L williams Esq attorney for the receiver and to george S peters esq attorney for the receiver for the reasons alleged against the allowance to the receiver which may be applicable to this charge and for the additional reason that the services of said attorneys are not yet completed and said allowance appearing to be made in fu full I 1 settlement of their services already rendered and which are to be hereafter rendered such cannot be done u under U der the law as laid down by the supreme cl court ourt of the united states and the subordinate federal courts of this country that while the said attorneys should be allowed a fair and reasonable compensation for their services yet at the present time and in the condition in which this cause la is they should only be allowed a reasonable sum on account to be paid out of the proceeds of the fund in the hands of the receiver 8 the unite states further ex cents to said report and to that portion thereof which purports to pass upon and approve the accounts of frank H dyer receiver settled by him and recommending that the same be approved by this court for the reason that whilst it was proper that the said receiver should make statements and settlements of 1 I his the same should not be approved and passed upon at the present ann ami or until this cw case is nally finally 1 I disposed dJa posed of when his entire accounts should betaken betoken up and passed upon together 4 the united states further e excepts to said report and to that portion thereof which approved of the accounts of the receiver filed as portion of said report and recommends that the same be a allowed him this exception extending to the following items of said account to which objections are set out as an follows item 5 caleb W west clerk 25 cc 9 ct cc 50 1 t CC 27 CC 6 50 ct 33 ac cc 50 cc 38 c CC 50 cc 47 cc cc jis cc 50 cc 67 cc CC 50 cc 77 CC 50 cc 88 ca 50 cc 99 cc ac 50 for the reason that said items appear to be charges for clerks hire whereas assaid said receiver has another clerk cleric and bookkeeper book keeper at a salary of a month and in view of the nature of the duties and services of said mid i receiver said charges for an additional dit ional clerk were unreasonable and unnecessary item 3 8 J sudbury 25 2500 00 7 A G dyer 11 8 W mccurdy 2500 0 cc 10 E Bip 4 forthe for the reason that said sald charges T appear to have been wages paid to watchmen over real estate and whereas the same were not newer sary and the amount paid out is UD reasonable item 63 P F E barker 11 71 P L willi williams ams 1637 11 85 F E mcgurrin 16 forthe for the reasons that sald said charges appear to be for services of stenographer ogra pher and typewriter and IU in view of the fact that said receiver had a regular clerk and bookkeeper eri the same was unreasonable and unnecessary N and for th the e further reason I 1 1 al that the amount charged for stenographers gf og fees is unreasonable mr hobson I 1 desire to say that I 1 have no confidence whatever in the charges against the hecei receiver ver and hla attorneys prom from a knowledge of the facts upon which th the la charged are based I 1 am satisfied a and u I 1 think the court will be that the re beiver and his attorneys have in all ah things acted properly I 1 say dortho benefit of the public that mr peters action was approved by tho attorney general and I 1 concur tw with him in that approval ifcher if the Y is any blame it should be laid to the attorney general and to mm me I 1 ide dw sire to say that I 1 think such charge hardeo as have been made in regard d to tn should not be taken into considers tion in determining the cornix compera com Ds tion of peters and williams al xv my view and the decided view of ray ay official su superior ajor the attorney gi general of the united states ii 13 that me we question of compensation should be postponed till the supreme court or of the united states passes on the claw fuestion of the constitutionality of us law and the validity of this proceeding which is now before hem if they should say the pro dewing ee ding is unconstitutional and void and that this court and the government had exceeded its powers every severy dollar in the hands of ac the receiver would have to go back to the church without compensation to receiver his counsel or anyone else from that ferid nd I 1 refer to the authorities on kha J matter they say that regard would should be had by the court for the idea ea whether the fund might go 90 ack to the party from whom it was taken on the ground of the illegality ot of the proceedings roce edings it would be un tk ut CT IF if it were otherwise if the higher 9 er court should decide that the ft faiver beiver iver had been illegally appoint w od costs cosla would be taxed against the 1111 unsuccessful successful party c my proposition is that if the supreme court of the united states should decide that this whole preceding ceding is null and void this court oart would not havethe have the right to py ill one dollar to the receiver or Watt to attorneys orneys from this fund no one is more anxious to break up this ft mp ration oration than 1 I insomuch as it its ceniu nete are contrary to law but we w must conduct ourselves within the e law therefore this matter hould not be disposed of till the court S of last resort shall determine the e validity of the law that gov orm eds this case until this is done ader no circumstances should the beiver or the court be allowed to dimin sh this fund but the reviver should meet his current ex auses ases from the receipts of the lurid the real estate does not b be 1049 ong to the government but be longs nga as much to the church and its successors in interest as it ever did d and your honors have no right ta w paa it to the receiver or to any ollie else there is also a large amount of personal onal property perty which was es cheated cheated C the question of the validity of r this escheat is now in the higher court urt suppose that court says the 1 ww and the appointment of the civer are legal but the decree of taj court es cheating was void what would be the effect if that proper property tv 18 18 distributed your honors will see atif if the escheat is illegal no boffl yr r of this court has a right to tou touch e h 1 it therefore this court cannot d distribute ls it the next point is checo theco of the receiver ec eer in ansa case of a 9 the receiver uv arto circumstances paid full campen aaion till the he fund is finally distria 4 under the order of the court the 1 l court will allow reasonable ex auses and reasonable compensation y the month but in no instance has 1 compensation been allowed till tho e ease case has been finally disposed of ul mere flere is a receiver with a mil ito dollars in his possession there 28 aae charges against him which which if aej 5 would cut him off from the w wt to comp compensation I 1 have no doubt that the decision will be in his favor but suppose he does in the future violate his oath of office should he be already have his compensation which such an act would cut him out of to pay the full amount at this stage is unheard of in law the is reported and recommended as full compensation not compensation for the current year but full compensation such an allowance would be in violation of all law and precedent in matters of this kind courts never depart from the practice of paying only reasonable con condensation n bation pending the settlement orth of the e ease case it may be urged that 25 is not full compensation if it is not I 1 say it is excessive and for one year more than is paid receivers for railroads and other corporations where the amount involved reaches into the millions I 1 find that all of the experts testify that the receiver should be paid a per cent mr williams put to them a hypothetical question and 1 they all name 5 per cent on the basis of collection of debts courts of equity do not permit an executor of a will involving a miwon million dollars to charge a per cent buthe but he is paid a salary the court will not allow this immense per bent cent the compensation of a receiver should not be estimated on a basis of per cent the uniform practice mece t is the payment of a war fair salary as compensation receivers are not paid a per cent except where such a figure has been equitable even then it h has only lybeer been where the ae circumstances made it justifiable in the particular case the he compensation should be based on his business capac capacity ity diligence responsibility and time devoted to the labors of the receivership I 1 desire to submit a brief on this point in the future the court will not consider the declarations of men who come and say they would not do the work for less than so much but will itself determine what is a reasonable compensation in his argument mr hobson referred to a considerable number of cases in support of the various pro propositions g ions laid down by him in n one case the receivers who had actually handled bandied of a fund of they were paid for three years service less lees per year than is claimed here receiving for their time he further said that until the court knows the final disposition of this fund it cannot pass upon the compensation pensa tion of the receiver and his attorneys then it should be based on the business capac capacity I 1 t r responsibility ae se and nature of we services performed e rt ormed in this ewe case a large go bond nd was required on his bis bond if he was dishonest he was responsible but the court will not consider that an element of responsibility for it if is not the other element of responsibility Is ie the control of the fund which in this case is not great the real estate is rented to the defendants fend ants while every dollar of the has been deposited in the bank and the receiver does nothing but draw the interest if the bank was waste to fail and every dollar he lost loo the receiver would not be held responsible the fact that he be used ordinary care would exonerate him his responsibility therefore has been and is comparatively light no unusual business capacity has haa been or is required of him the recovery of the property depended on OB the learning and ability of his bis counsel where the tale property was not already in the hands handsol of the court in this case it was stipulated that all ali this property belonged to the corporation po ration the corporation was wae declared dissolved and the property placed in the hands of the receiver all he had to do was to go himself or send his deputies and take control of tho the property this he did without any trouble there was no requirement of extraordinary business capacity or responsibility in this at the outset it was stipulated that of property had been distributed to the stakes it is true he sought for this property but he did not have to do it long for b by a stipulation made it was waa agreed that a large amount was beyond recovery and in cash was paid in full settlement of that claim that money was placed in the bank Is I 1 proved approved of that settlement then and I 1 approve of it now the receiver and his attorneys are entitled to credit but there was no extraordinary labor it was mainly due to the sagacity |