| Show communication territorial TE AUDITOR to ghe the honorable the speaker and members of the house of representatives gentlemen in compliance with resolution of the dinst that the auditor of public accounts be requested to report to this house whether or not there has been any demand made upon him by M T Pt patriek patrick trick united states marshal for utah for funds to defray the thu expenses of the district courts for the years 1870 nad and 1871 if so when and whether or not he has paid any expenses of those courts on marshal patricks order orders and if so what amount to and whether or not any suit has hag been commenced against him to test lest his right to hold that office if so when and what fg ib is 19 the condition of that suit also whether or not he has had any correspondence with mr Z snow attorney general relating to these subs bubs ejects j acts if is sa that he report that correspondence pon dence at his hib earliest convenience with any other correspondence whis which may have passed between him and the executive or any other of the federal officers of the territory on this his subject i 1 I ask leave to submit the following in the month of july 1870 date not remembered united states marshal patrick called on me and made an informal demand for funda to pay the expenses of the united states courts he did not present any written demand neither any order from any court after some conversation on the subject 1 I told him I 1 would take the matter into consideration and advise him of the ro re suit A few day a subsequently in company with honorable Z snow actor ney general I 1 called upon marshal patrick at hla hib office we hada had a very pleasant conversation on the subject in question during which I 1 informed the marshal that the appropriation for expenses of courts was payable only to the order older of J T D mcallister Mo Allister territorial marshal and was explicit explicitly ly so stated in the act of appropriation marshal patrick responded that he could not carry on the business of the courts without funds that witnesses jurors etc must be paid and that he personally could not provide means to td pay those expenses I 1 again stated that I 1 would further con consider sider the matter and communicate with him again thel thal interview i n was cordial and the deportment of the marshal polite and gentlemanly on returning to iny tny my office and weighing the subject in all ali its bearings wishing to do anything to io create unnecessary irritation or give cause lorjust for just complaint I 1 concluded to address a communication to honorable Z snow territorial attorney general Boli bolf eiting citing his opinion as my legal adviser in a gard to the subject in question acaby A co py of my note to the attorney general please find herewith marked A hon Z snow attorney general for utah territory dear sir M T patrick esq U as g marshal has applied to me for funds to pay tho the expenses of the district court for far this thia territory such sueh a as witness raes faes expenses of arresting and board hoard hoarding boarding heg hig prisoners ers mrs serving notices on jurors tc c ao c As aa this la is tho the first time in the history of the territory that a united states marshal has asked for territorial funds to payment of expenses ok 0 district courts on territorial business or otherwise grave doubts have arisen in my mind mind as to whether in the face of existing facts which I 1 will endeavor to enumerate la in part I 1 lean can be justified in acceding to marshal patrick request under any circumstances by issuing warrants on gla the territorial Terri tonal tonai treasury as above contemplated aarbu As are the tho legal of territorial rial officers I 1 have bave con concluded eluded to lay the matter before you and solicit your legal opinion on the subject before proceeding any further in the first place placa an act in relation to marshals Sars hais hals and attorneys approved march manch section I 1 reads as follows be it enacted by the eto governor vernor and legislative assembly of the territory of etab that a marshal marshai shall be elected by a joint vote of both houses of bf the legislative assembly i whose term of office shall be one year unless sooner removed by tle the legislative assembly Ag or until his successor Is ia elected and qualified said marshal shall before entering upon the tho duties of his office take an oath of office and file bonds with sef curit ies les in id the penal buni buna of not exceeding twenty thousand dollars conditioned for i the faithful discharge of his duties which bond with securities is to be approved by the secretary of the territory and filed in his office 11 and in an act prescribing the term of certain officers and designating I 1 ngaw where h re their bonds shall be filed I 1 11 to b drawn ra wn by bv J JD D T mcallister te arito marshal I 1 cannot seo beo that anedis any dis la Is left the auditor in the premise seq but hut that the fund fand if drawn at all must he be drawn by J D DT T MoAl llster territorial marshal marshai marbil la in vouchers vouch drs td be approved by the auditor of public accounts 11 being very desirous that no act of mine shall expose me to the merited and aud just juat censure ot of the legislative assembly who are the representatives ot of the people I 1 appeal to your honor and solicit your legal opinion on the subjects named herein for my future guidance and protection and trust that you will favor avor me at as early a day ay as po possible isible very res respectfully acl trally yours WM WH CLAYTON CLATTON auditor of public accounts salt lake city july 1870 i tha the attorney generals reply dated july 1870 will be found herewith marked B attorney GENERALS opy OPS ICE salt lake lako city july 2 hop william clayton auditor at 0 public accounts sir sin your youir communication of the dinst is before me you say that you have baen boen applied to by bv mr 11 T patrick U S marshal for funds to pay the expenses of the district court of this territory such as witness fees expenses of arresting and boarding prisoners prisoners serving notices on jurors etc etc and say this thia Is tha thel first time inthe in the history of this territory that tho the united states marshal has haa asked for territorial nit rit orial funds to disburse in payment of such expenses you ask whether or not you can be justified under existing facts in complying with marshal patricks request you call my attention to sundry laws of the legislature of utah to ans your inquiry it will be proper proper for me to examine the laws of the united states in connection with the statutes of utah to which my attention has been called congress by an act approved sept 24 1789 entitled an act to establish the judicial courts counts of the united states see seo statutes at large vol leago 1 page pago 87 after providing for the supreme circuit and district courts and dividing tho the united states into circuits and districts provided in sec see 27 a marshal shall be ba appointed in and for each district district whose duty it shall be ba to attend the district and circuit courts when sitting therein ana and also the supreme court courtin in the district in which that court shall sit and to execute throughout the district all ail lawful precepts directed to him and issued under the authority of the united states stales and before he enters on the duties of his office he shall become bound for the falth filth faithful ful fui performance of the same before the judge of the district court of the united states with two good an and d sufficient sureties inhabitants and freeholders of such district I 1 to be approved by the district judge in the sum of twenty thousand dollars and shall take before said judge the following oath I 1 t do solemnly swear that I 1 wl will faithfully ex execute acute all lawful precept precepts 5 directed to the marshal of the district of tinder under the authority of the united states and true returns make etc etc by another act of cou cau congress gress grehs approved loth april 1803 1903 see sec I 1 see ad statutes at large pago paso in giving further farther rules concerning these bonds bonda says bays the bonds heretofore given which may be hereafter given by the marshal of any district for the faithful performance performance of the duties of his office shai shar shall shail be filed and recorded in the office of the clerk orthe of the district or circuit court sitting within the district for which such marshal shall have been appointed and copies thereof certified by the clerk under the seal beal of said court shall be competent evidence in any court of justice by an act of congress approved may 8 1792 sec 1 statute at lai lal large laige go page prow proa visions are made for defraying the expenses of the United states courts and the united slates spates marshal is made the disbursing am officer it is therein provide dafter darter stating what what expenses shall be paid and included in tha mafs Mafi halys haiss account in which the tho ex pense the territorial courts when ax ex excising their thoin jurisdiction in cases not arising under the constitution and laws of the united states are not included and end therefore excluded and the same having been examined and certified by the tho court or one of the judges of it in which the services shall have been rendered shall be passed in the usual mann manu erand erana the amount thereof paid out of the treasury of the united states by the act of congress approved february 26 1853 relating to fees of officers see statutes at large vol 10 page pago hee hec 3 I 1 it is made the duty of the razo rage marshal larsha 1 among other united states officers to re report rt semiannually to the secretary of ehrl the tha interior ilter lor in whose office his accounts are to to be examined seo sec 10 of the act to establish a Terri territory territorial torl tori il government for utah approved sopt sopa 9 1850 after providing for the judicial power of f tho territory amon among g which aie are are a supreme court and district courts says each of the district courts shall have and exercise the same jurisdiction in all cases arising under the constitution and laws of the united states as Is vested in tb the a circuit and district courts of the united states and by sec 10 of the same act found in utah statutes page 27 it is enacted that there shall be a marshal appointed who shall execute all processes issuing from said courts when exercising their leils lEiis jurisdiction dic as circuit and district courts of the united states he shall perform tho sa same bame a duil Auf leibe esbe subjected to thie the same sable regulations and same pe penalties naltie and bo be erl eri entitled titled to the same fees as the marshal marshai of the district court for the present territory of oregon from the foregoing provision of tho united states laws which contain all that have any bearing on the questions sub fitted to tome me by you that I 1 have been able to find I 1 have no difficulty in holding that the marshal of the united states is not required by any of them to file a bond with you and give any security whatever to the territory for the faithful disburse ment of any funds with which he may be entrusted by you when a law of the united states has provided the mannen manner of the qualifying of the marshal and the giving IV of bonds with the place of recon recording ng and preserving them and prescribing his Is dutle duties sas as they have haye doneas done dono as these provisions show it is equal to saying that those these are all ail that more shall not bo be require dand that less will not do he lre is amenable to the tho power that appointed him and must account to the officers which their laws direct and none others I 1 do not intend by this to be understood that he may not andean and can made civilly liable for official delinquency with the provisions of the ath section of the organic act which says that no person holding any commission or appointment under the united states shall dold doid hold hoid any office under the government of the territory I 1 would not anticipate finding logany any law or of this territory macint making the united states marshal its officer but twill will examine and see sod by the act of utah entitled an act in relation to marshals and attorneys approved march soe see utah Law spage 38 it ib is provided that a marshal marshai Mars lial ilal shall be e elected by the joint vote of both houses of tho the legislative assembly whose term of office shall be etc etc he shall before entering on the duties of his office take an gath cath of office and file bonds with sureties in n the penal sum of not exceeding twenty thousand dollars conditioned for the faithful discharge of his duties which bond and sureties are to be approved by the secretary of the territory and fileti filed in his hla office the act of jan loth 1866 by you referred to see utah laws sec 1 requires the territorial marshai mareb alto aito to file his bis cres bonds at your office and to your acceptance see sec 3 of the act before referred to relating to the territorial marshal see aee utah tah laws page 38 requires him to execute all orders or processes of the supreme or district court in all cases arising under the laws of the territory and such other duties as the executive may direct or may be required by law pertaining to the duties of his office the act referred to by you relating to the appropriation for court expenses is evidently in accordance with past usage and was intended by the legislative assembly to be drawn and expended by the territorial marshal he being an officer amenable to the territorial government but even ho be could not draw the money except on vouchers approved at your office I 1 must therefore say by the territorial marshal as I 1 said by the united states Mar marshal marshai shaf that what the laws require of him he must do neither more nor less la is necessary and the same applies to yourself you must draw orders as the law directs and in favor of the one who is authorized by law to receive them and to none others this will leave the consequences to the territorial government from whom you receive your election and which passed the law it will also leave the united states marshal to refer the matter to the government of the united U states from whom he received his authority as united states marshal I 1 yours truly Z SKOW wb on receipt of the attorney generals communication I 1 addressed a note to marshal patrick underdale under dati date august leti 1870 I 1 declining to answer anser his hla requisitions for funds for reasons stated A copy 0 of f bal bai said bald denote note will be foaud here herc willi marked t ICY C f territorial AUDITORS OFFICE salt lake city august 1870 AT T PATRICIC B ESQ Q U S marshal i sir sirs referring to our interview of the uit in regard to paying expenses of courts out oat of territorial funds in vouchers presented by you as aj U S marshal I 1 addressed a communication on the subject to lion hon Z snow territorial attorney general and solicited oli cited his legal opinion as ai to my duty in the premises I 1 am in receipt of his re reely reply dy I 1 from which it appears that the law WT will I 1 not bear me out in paying tho the expenses of the courts only on orders ofa of J D T mcallister callister M territorial marshal on vouchers to bo be approved by the auditor the language of the attorney general after ref referring erring eTrIng to the various laws of the united states and the territory of utah bearing on the subject Is As I 1 said by the united states marshal that what the law requires of him he must do neither more nor norlena less is necessary and the same applies to yourself you must draw orders as the law directs and in favor of the one who is authorized by law to receive them and to none others this will leave the |
