Show THE ESCHEAT CASES j The Supreme Court of Utah Rules In Them 1t t t PERSONAL PSOPERTr SECURE Ij j I 17 Interesting Points and Features of the Decision j Deci-sion Delivered by Hon C s Zine Chief I Justice of the Supreme Court j I In the supreme court of this territory L on Saturday tho unanimous decision of the justices wasdelivered referenco to II the suits of the United States of America vs the Church of Jesus Christ of Latter I day Saints Chief Justice Zone delivered the opinion of which the following is a synopsis After relating the history of the litigation litiga-tion his honor quotes from the decisions of the Supreme Court of the United States and the findings of the master in chancery shows what avo tho rival claims of tho plaintiff and defendants and says Tne scheme that would devote the fund to he aid nnd assistance of the poor mom tars of the churcii and their families and t the erection and repair of Its places of worship would limit it to objects within tho II 4 scope of tho intentions of It donor J Tho other would devota and appoint it ton I to-n use not intended by its donors and to 4 which it was not dedicated i i t This tho fhi brings us to the question can court appropriate this fund to a charitable ooject not intended By its contributors and t which it had not been dedicated 1 w 4 i The legal title and all equitable rights to the real estate forfeited and escheated because I be-cause held contrary to the law of 1SG2 vests in the government to be dealt with and disposed of according to law While the personal property cannot bo so forfeited for-feited and escheated and it must be disposed dis-posed of according to the law of charities wmte the decree gave the possession and custody of the personal property to the receiver re-ceiver to be held subjott to tho further order or-der of the court the use was to charitable objects lawful in their character within i the general intent of the donors The opinion does not say that the control over II 1 the personal property is absolute that it was regardless of the purposes of its dedication dedi-cation I Decisions of courts bearing on the question ques-tion are referred to A loadiug and prominent principle prevailing f pre-vailing in them all is that property devoted to a worthy and charitable object promo two of the public good shall be applied to I the purpose of its dedication and protected from spoliation and diversion to other objects f ob-jects Though devoted to a particular uso it is considered as given to the public and I is therefore taken under the guardianship I of the law I it cannot be applied to the I particular use for which it was intended 1 either because the objects to be subserved have failed or because they have become unlawful or repugnant to tho public policy I of the state i will be applied to some object I ob-ject of kindred character so as to fulfill in substance i not in manner or form the purpose of its consecration i + It requires a careful examination of the opinion to dlslinuisn the powers held to be applicable to te forfeited and escheated property from those applying to the property prop-erty not forfeited and escbeated and also to distinguish the powers held to pertain to the court in the exorcise of its ordinary jurisdiction with respect to property dedicated dedi-cated to charitable uses from those belonging be-longing to tie sovereign in a monarchy with respect t such property or to the lawmaking department in a government based upon the Trill of the peopla one in which they are sovereign fr V t The doctrine of cy yrcs is only a liberal rule of construction to ascertain the inten constructon I tibn of the donor and all the rules relating 4 thereto are intended to aid in ascertaining I and carrying out as nearly ap may be the true intention of tho donor His intention should be the aim of the court A number of authorities are here cited to sustain this position and the court goes onto on-to say From these authorities we may deduce the general rule that courts of equity in the exercise of their ordinary jurisdiction cannot devote any portion of a fund dedicated dedi-cated to charitable uses to any object not I contemplated by the donors that when i property given to a class of objects in general terms and also directed to be applied ap-plied to one of them in special terms i its application to that one becomes unlawful or impracticable the doctrine of cy pres authorizes the court to devote it to one or more of those embraced in the general intent in-tent most analagous t the one specially named that the genera intent may not be expressed in explicit terms i the device or dedication in the lght of the circumstances authorize tho court to infer that suoh was the donors wish in that event The same rules apply wheu the charity is the result of contributions by a large number of people peo-ple It Is plain from tho evidence before us that the members of the Church of Jesus Christ of Latter Day Saints contributed the fund in dispute expecting it and wishing wish-ing it to bo applied by the first presidency to church purposesto objects promoted by the church We cannot find from the evidence before us that the Mormon people who contributed this fund intended or es period the fund or any part of it would be appropriated to the support of the common a fools of the territory In common with nonMormons the Latter Day Saints are taxed to maintain the publio schools and to take the money that they contributed for church purposes and devoted also to their I support would be unequal and unjust Were it simply a matter of discretion with us we would not be disposed to assume as-sume superior and peculiar wisdom and cay to these people that we will devote the contributions made by you for church purposes pur-poses to a purpose that you did not intend itto the support of the common schools because wo think that a more worthy object ob-ject Wo cannot adopt the scheme presented pre-sented by the plaintiff and reported by the master We will now consider the scheme for the spplication of this fund presented by the defendants Their plan would vest this property In the first presidency of the churce now coneistlng of Wilford Woodruff Wood-ruff its president and Georgo Q Cannon and Joseph F Smith his counselors and their successors in office in trust to apply the proceeds thereof and to limit its Use to the relief and assistance of the poor of the church and to the building and repair of convenient and necessary places of worship for its members It appears ap-pears from the evidence before us that this fund was very largely applied to these two objects by tho first presidency prior to the time it was taken from their possession and control But we are also authorized to infer that at the time this J case was tried in 1SSS and prior thereto the teachers of the church and its missionaries taught by its authority that the practice prac-tice of polygamy was right and that tho church in that way propagated it and that a portion of the property in dispute was Used to aid and support such teachers and missionaries and in that ray was applied to an immoral and unlawful end The c scheme under consideration however < would forbid the use of this fund for any ouch purpose it requires it to be used for tbe benefit of needy members and to be applied to the erection of houses of worship wor-ship for the Latterday Saints The relief of the needy and distressed of whatever faith cannot be immoral or unlawful Nor can we Bay that the expenditure of i money for tie erection and repair of convenient con-venient Rfd necessary houses of worship I for the Mormon people is devoted to an immoral or unlawful purpose I In the legislation of Congress with respect L re-spect to polygamy houses of worship parsonages 1 par-sonages and burial grounds are reserved to I the church and the decision remanding this I case affirms so much of the decree of the trial court as set such property apart to 4 the church i We now come to another question Can 1 this court in the exerdiee of its ordinary i chancery jurisdiction vest this fund in the I first jjr sidency to be applied to the two purpose that we have seen arc lawful This property as the evidence shows was given to the church authorities named to be applied to church purpoiee In their dli I Q Q < e cretion Assuming that a portion of it was soozponded bysuchauthorities as to pro jiagato polygamy can the court now limit the proceeds of the entire fund to the relief of tho poor and to tie erection and repair I of houses of W9rshlp two lawful objects and the Ones to which the larger portion of tho fund has always been devoted I I We may presume that the contributors expected and intended that the first presidency presi-dency would their gifts to such apply ttelr gifs purposes pur-poses as they might deem practicable and rl lt and i they should deem any object impracticable and wrong that they would I devote the whole wrong such of the objects ob-jects deemed practicable ana right The church authtrities now propose to apply the entire fund to the two purposes uamed I which mst be conceded practicable and lawful and they on behalf of the entire sect pray the court to decree that they I shall devote i to theso two lawful purposes pur-poses and that tbey may be prohibited from I applying it to any other Wnen the dedication is broad enough to I allow the trustee to apply th fund to unlawful un-lawful as well as lawful purposes the court will limit its application to lawful I II ones When tho terms of tho gift authorize i author-ize the trustees to devote tho fund to either uf the two subjects ono legal and the other JI I illegal its application will be confined I to the legal purpose and the illegal I ille-gal one will be rejected The principle of I these cases seems to be the same that although al-though n valid charitable use should happen hap-pen to be joined by way of alternative I alterna-tive with one which is Invalid no matter how the manner being altogether indifferent indif-ferent the former will not be prejudiced j I by its connection with tholatter Boyces Law of Trusts p 232 Other authorities are liberally quoted and the coUrt continues It appears from the evidence before us that tie contributions contribu-tions to the fund in controversy were made with the understanding that they should I I be applied to church purposes but that it was optional witn the erst presidency to which object and i to more than one tao I amount to each The donations were to all or any as those church officers might determine andthe court is asked to hunt the application to two church purposes that are lawful We have no doubt that the court in the exercise of its ordinary chancery jurisdiction may limit the application cation of this fund to the lawful purposes Defendants solicitors also insist that the report of the master and accompanying evidenco show that the church abandoned the practice of polygamy by the means of and in obedience to the manifesto of its president and a resolution of its general conference adopted on the Cth of October sop Quotations are here given from the manifesto mani-festo and also from tne testimony given by the Mormon presidency before the master in chancery and the court thus proceeds I the uncontradicted testimony and evidence evi-dence before us can bo relied upon it proves that the church authorities and its members regard the manifesto and its resolution of Oct G 1890 as prohibiting the practice of polygamy and that they regard this prohibition prohi-bition as tho law of God to them That within the pale of civilization where laws exist against it the practice of polygamy is wrong but tuat outside of this limit it maybe may-be rightfully practiced Assuming that they believe that the supreme I su-preme lawgiver in a revelation to Joseph Smith the then head of the church sanctioned sanc-tioned polygamy and in another revelation about forty years afterwards to Wilford Woodruff then its head prohibited its practice within the limits mentioned it follows fol-lows that tbey believe that that lawgiver sanctions polygamy where the sentiments of civilization are not against it and where it is not prohibited by law but where there were such sentiments and laws against i it is wrong that the Almighty regards the sentiments of civilization and the will of human lawmakers as expressed in obedience obedi-ence to their reason and consciences as binding on the people within their jurisdiction jurisdic-tion that ho requires obedience to the law of the land The theory of civil or municipal government govern-ment as expressed in the declaration of independence in-dependence is that it is based on the will of tie people expressed according to the dictates of their reason and conscience This theory the most of us believe in and i the Mormon is right God has in a revelation reve-lation to them recognized and sanctioned this theory as sound Assuming that there is a supreme being who i the source of all power and wisdom many of us believe he does so express his will so far as human government goes through the reason and conscience of man kjndjn constitutions and laws Importance is attached by the Master in his report and counsel lay stress upon the statement of the president that polygamy is right but that it is wrong to practice it when the sentiments of tho people and municipal mu-nicipal law is against it According to his statement he has an abstract ab-stract belief in polygamy where laws exist against In other words he believes in the principle in the abstract under such circumstances cir-cumstances but does not believe in i in the concrete The government is not autborlzed to deprive de-prive any person of his property against his will except by forfeiture or escheat according to law or by appropriating It to the payment of public taxes in the mode the law prescribes or in pursuance of tho law of eminent domain with just compensation compen-sation It cannot divest any individual or any class of people of their property or deny to them the right to control it or to devote It to any object they may choose simply because they may entertain wrong political or religious beliefs the doing of either would be a plain violation of those principles of civil and religious liberty which underlie our whole political underle poltical system The intent and tho resulting act may together to-gether be defined as crime and punished but the intent alone cannot be The perceptions per-ceptions the feelings the beliefs or tho consciences of mankind cannot be regulated regu-lated by human laws Such laws would transcend the power of all just governments govern-ments We do not reel autnor zed to withhold from the Latterday Saints the right to devote de-vote their property to charitable objects simply because we may think they have wrong beliefs or to undertake the eradication eradi-cation of such beliefs by denying to them the right to the enjoymentof their property or the right to appropriate it to lawful purposes pur-poses Polygamy having been abandoned by the church the remaining purposes to which the personal property in question has been dedicated and to which it may be applied by the church appear to be lawful And in view of this the writer of this opinion is unable to understand upon what principle of law this court can deny to this church the right to appropriate and apply this fund t such purposes He Is of the opinion that it should be vested in Wilford Woodruff George Q Cannon and Joseph F Smith its First Presidency and in their successors in office tho agents selected by the church to be devoted and applied to them to those purposes according accord-ing to the will of the church and the wishes of its donors A majority of tho court however is of the opinion that it should be vested in a trustee selected by the court and in his successor or successors to be appointed ap-pointed by the court to bo devoted exclusively ex-clusively to the support and aid of the poor of the church and to the building and repairing re-pairing of its bouses of worship and that he should bo required to give a bond before entering upon his duties sufficient to secure tbe amount thet may come to bis hands and bis performance of the duties of tho trust and that he should barequired to report re-port to the court on the 1st day of January of each year his action as such trustee A decree will be entered by the court in accordance with this opinion LEONARD O HAHDT APPOINTED TRUSTEE After the decision was read Judge Zano asked the attorneys i they had any suggestions sug-gestions to make as to who should be appointed ap-pointed trustee Mr Richards requested that Bishop Preston be named To this Mr Vnrian made no objection saying that as long as the fund was to go back to the church ho would not object even to President Wil ford Woodruff Mr Richards thereupon asked that Bishop Prestons name be withdrawn and that of President Woodruff Wood-ruff substituted The court announced the appointment would be taken under advisement until unt the afternoon In chambers during the noon recess the question o appointment appoint-ment was fully discussed and it was decided de-cided that on account of his great age President Woodruff would not make a satisfactory trustee although In1 every other way perfectly competent Mr Leonard G Hardy was then decided upon and appointed Mr Hardy will accept tho trust and will at once Jllo his bond and take charge of tho money and property Mr Varian had noted by the clerk be X1J fore adjournment of the court his exception excep-tion to the decree and also filed notice of an appeal to the Supreme Court of tbe United States |