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Show THE ENQELBRECHT DECISION. DECI-SION. We give space this morning to the important decision of tlie supreme court of tho United States in this case, which we clip from the Cincinnati Commercial; Before putting it to press we had it carefully compared with the certified copy of tho decision received last nigUt, so that it may be received as correct. Supreme Court of tlie United Stales. No. o'). December Term, 1S71. Jeter Clinton, T. J. D. McAllister, A. Kurt, lirighnni Y. Hampton, C. Kingwood, W. G. Phillips, Wm. Iiyde, Charles Livingston, Charles Crow, J. Heading, J. Toms, A. Jlurt, K Curtis, D. W. Leaker, J. iMcliae, J. W. Sharp, P. McKen-run, McKen-run, Thomas Burohell and K. Smith, plaintiffs in error, v.t. Paul Englebrecht, Christian Rehmke and .Frederick Lutz; In error to the supreme court of the Territory of Utah. JJr. Chief Justice Chase delivered the opinion of the court. The principal question for consideration consider-ation iu this caso is raised by the challenge chal-lenge of tho defendants to the array of tho jury in the third district court of thsi Territory of Utah. The suit was a civil action for the recovery of a penalty for the destruction destruc-tion of certain property of the plain-tills plain-tills by the defendants. Tho plaintiffs were retail liquor dealers in the city of Salt Lako, and had refused to take out a license, as required by an ordinance of the city. The defendants, acting under Iho samo ordinance, thereupon proceeded to the store of the plaintiffs plain-tiffs and destroyed their liquors to the value, as alleged, of more than twenty-two twenty-two thousand dollars. The statute gave au action agaiust any person who should willfully and maliciously injure or destroy the goods of another for a sum equal to three times die value of the property injured or destroyed. Under this statute tho plaintiffs claimed this three-fold value. Tho act of the Territorial legislature, legisla-ture, passed in 1S5), and in force when the jury in this caue was summoned, required that the county court in each cunty should make out from the as-segment as-segment rolls a list of fifty men qualified quali-fied to serve as jurors; and that thirty days before the session of the district court, the clerk of that court should issue a writ to the Territorial marshal, or any of his deputies, requiring him to sum morn twenty-four eligible men to serve as petit jurors. These men were to be taken by lot in the mode pointed out by the statute from the lists previously made by tho clerks of the county courts, and their names were to be returned by the mar-i-hai to the clerk of the district court. Provision was further made lor the drawing of the trial panel from this tinal lUt, and tor its completion by a uew drawing or summons in ease ot non-attendance or excuse from service, , upon challenge, or for other reasor. for the trial of the cause the record thows that the court originally directed a venire to be issued in' conformity with this law, and that a venire was iued accordingly, but not served or returned. The record also shows that under an order subsequently ur.de sd open vcLiic was issued to the federal tuui w a.cli was served aud re-iuri;.d re-iuri;.d with a parx-l of eighteen petit jurors ani't:xi.d. These jurors were mild men ei from the body of the county coun-ty at the discretion of the marshal. Iwelve jurors of ibis panel were placed in the jury bos, and the de-itud:ims de-itud:ims challenged the array on the around that the jurors bad not been telecte 1 or summoned in eontbrimty with the laws ot the Teiritory and with the original oeder of the court. 'I his chahenge was overruled. Exception Ex-ception was ukcQ and the cause proceeded. pro-ceeded. Both parties challenged for cause. Each of the defendants- claimed peremptory challenges. This claim was also overruled and exception was uke-u. 0:her exceptions wore also taken iu the progress of the cause. Under the charge of the court a verdict ver-dict was rendered for the plaintiffs, under which judgment was entered for liny-nine thousand and sixty-three dollars and twenty-live cents j'J,-ji.-0), md OQ appeal was affirmed by the supremo court of the Territory. A writ of error to that court brings the cause here. It i.s plain that tho jury was not selected se-lected or summoned in pursuance ot the statute of the Territory. That statute was, on the contrary, wholly and purposely pur-posely disregarded, and the controlling question raised by the challenge to the array is, whether the law of the Territorial Terri-torial legislature, prescribing the mode I of obtaining panels of grand and petit jurors, is obligatory upon the district courts of the Territory. It was insisted in argument that the challenge to the array was waived by the defendants through the exercise of their right to challenge peremptorily and for cause; and we wore referred to the judgment of the supreme court of New York, in the case of the People vs. McKay (IS Johnson, 217) as an authority au-thority for this proposition. But that case appears to bean authority for the opposite conclusion. "We are not ol opinion," says tho court, "Lhat t the prisoner's peremptory challenge of jurors ju-rors was a waiver ol' his right to object now to the want ol" venire." in that case there had been no venire, but the . jury had been summoned in a mode not warranted by law. Ln the case before be-fore us there was a venire, but if it was not authorized by law, it was a nullity; and we arc not prepared to say that the efforts of tho defendants to secure as far as they could, by peremptory challenges chal-lenges and challenges for cause, a fair trial of their caso, waived an inherent and fatal objection to the entire panel. Wo aro, therefore, obliged to consider con-sider the question whether tho district court, in the selection and summoning of jurors, was bound to conform to the law of tho Territory. Tho theory upon which the various governments for portions of the territory terri-tory of tho United States have been organized or-ganized has ever been that of leaving to the inhabitants all the powers ol' self-government self-government consistent with tho supremacy supre-macy and supervision of National authority, au-thority, and with certain fundamental principles established by congress. As early as 1784 an ordinance was adopted by tho congress of the Confederation, providing lor the division of all the territory terri-tory ceded or to bo ceded, into States, with boundaries ascertained by tho ordinance. or-dinance. Thcso States were severally authorized to adopt for their temporary government the constitution and laws of any one of the States, and provision jvas made for their ultimate admission by delegates into the congress of the United States. Wo thus find the first plan for the establishment of governments govern-ments in the Territories, authorized the adoption of State governments from the start, and committed all matters of internal legislation to the discretion of the inhabitants, unrestricted otherwise than by the State constitution originally origin-ally adopted by them. This ordinance, applying to all territories terri-tories ceded or to be ceded, was superseded super-seded three years later by the ordinance of 1787, restricted in its applications the territory northwest of the river Ohio the only territory which had then been actually ceded to the United States. It provided lor tho appointment of the governor and three judges of the court, who were authorized to adopt, for the temporary government of the district such laws of tho original States as might be adapted to its cirou instances. instan-ces. But, as soon aa the number of adult male inhabitants should amount to five thousand, they were authorized to elect representatives to a house of representatives, who were required to nominate ten persons, from whom congress con-gress should solcct five to constitute a legislative council; and the house aud council thus selected and appointed were thenceforth to constitute the legislature legis-lature of tho Territory, which was authorized au-thorized to elect a delegate in congress, with the right of debating, but not of voting. This legislature, subject to the negative of the governor and certain fundamental principles and provisions embodied in articles of compact, was clothed with the full power of legislation legisla-tion for the Territory. Tho Territories south of the Ohio, in 1794; jl U. S. Stat. 123; j of Mis-sisippi, Mis-sisippi, in 1799; Ibid, 549; of Indiana, Indi-ana, in 1800; 2 U. S. Stat., 5S; of Michigan, in 1805: Ibid., 309; of Illinois, Il-linois, in 1S09; lbid., 014; were organized or-ganized upon the same plan, except that the prohibition of slavery, embodied embod-ied in the ordinance of 17S9, was not embraced among the fundamental provisions pro-visions in the organization of tho Territories Ter-ritories Bouth ot the Ohio; and the people in the Territories of Michigan, Indiana and Illinois were authorized to form a legislative assembly, as soon as they should see fit, without waiting for a population of five thousand adult males. Upon the acquisition of the foreign territory of Louisiana, in 1803, the plan for the organization of the government gov-ernment was somewhat changed. The governor and council of the Territory of Orleans, which afterward became the State of Louisiana, were appointed by the President, but were invested with full legislative powers, except as specially limited. A district court of the United States distinct from the courts of the territory was instituted. 2 U. S. stat., 283. The rest of the territory was called the district ol Louisiana, Loui-siana, and was placed under the government gov-ernment of the governor and judges of Indiana. Ibid., 287. Jurisdiction of cases in which the United States were concerned, subject to appeal to the supreme court of the United States, was, for the first time expressly given to a Territorial court in 1805. 1 2 U. S. stat., 338. The Territory Ter-ritory of Missouri wasorganizedjin 1812, 1 2 U. S. stat., 743, and upon the same plan as the territories acquired by cessions of the States. In the act for tho government of this Territory appears for the first timo a provision pro-vision concerning the qualifications of jurors. The sixteenth section of the act provided that all free white male adults, not disqualified by any legal proceeding, should be qualified as grand and petit jurors in the courts of the Territory, and should be selected, until un-til the general assembly -should otherwise other-wise direct, in such manner as the court should prescribe. The Territory of Alabama, in 1817, I I3stat.; 371, was formed out of the ' Mississippi territory, and upon the same plan. The superior court of the Territory was- clothed with the federal jurisdiction given by the act of Ja00. The Territory of Arkansas was organized, organ-ized, in 1M'. 3 stat., 4'.'3," in the southern part of Missouri territory. The powers of the government were distributed as executive, legislative and judicial, and vested respectively in the governor, general assembly and the courts. The governor and judges of the superior court were to be appointed appoint-ed by the President, and the governor was to exercise the legislative powers until the organization ot the general assembly. The act for the organization of the Territorial government of Florida made the same distribution of the powers of the government as was made in (he Territory of Arkansas, and contained con-tained the same provision in regard to jurors as the act for the Territorial government of Missouri. In aJi the Territories full power was given to the legislature overall ordina- , ry subjects of legislation. The terms in which it was granted were various, but the import wad the same in alL Except in the acts relating to Missouri Mis-souri and Arkansas, no power was given to the courts in respect to jurors, and the limitation of this power until the orcanization of the general assembly assem-bly indicates very clearly that, after such organization, the whole power in relation to jurors was to be exercised by that body. In 183G the Territory of Wisconsin was organized under an act, which ;cems to have received full cousidcra-'ioti, cousidcra-'ioti, and from which all subsequent acts lor the organization of Territories have been copied, with lew and incon siderahle variations. Except those in the Kansas and Nebraska ads in relation rela-tion to slavery, and some others growing grow-ing out of local circumstances, they af contained the same provisions in regard to the iojMaiature and the legislative authority, and to the judiciary and the judicial authority, as tho act organize ing the Territory of Utah. In no orti-ol'them orti-ol'them U there any provision in relation rela-tion to jurors. The language of the section conferring confer-ring the legislative authority in each of these acts is this: "Tho legislative powur of said Territory Ter-ritory shall extend to all rightful sub jects of legislation, consistent with the t constitution of the United Stales, and the provisions of this act; but no law shall be passed interfering with the primary disposal of the soil. No tax . shall be imposed upon the property of the United States, nor shall the lands or other properly ef non-residents be taxed higher than the lands or other property of residents." As their is no provision relating to tho selection of jurors in the Constitution, Constitu-tion, er the organic act, it can not be said that any legislation upon this sub ject is consistent with cither. The method of procuring jurors for the trial of cases is therefore a right ful subject sub-ject of legislation, and the whole matter mat-ter of selecting, impaneling and sum moning jurors is left to the Territorial legislature. The action of the legislatures of all the Territories has been in conformity with this construction. .Iu the laws of every one of ihem, from that organized under tho ordinance of lTs.7 to the Territory of Montana are fuuud acts upon this subject. And it is worth while to remark that in throe of the Territories, Nevada, New Mexico and Idaho, the judge of probate has j been associated with other officials in the selection of the lists for the different differ-ent counties. This unilbrmify of construction by so many Territorial legislatures of tlie organic acts in relation to their legislative legisla-tive authority, especially when taken in connection with the fact lhat none of these jury laws have been disapproved disap-proved by congress, though any of them would be annulled by such disapproval, dis-approval, confirms the opinion, warranted war-ranted by the plain language of the organic act itself, that the whole subject-matter of jurors in the Territories is committed to Territorial regulation. If this opinion needed additional confirmation it would be found in the judiciary act of 1789. The regulations of that act in regard to ihc selection of jurors have no reference whatever to Territories. They were framed with reference to ihc States, and can not, without violence to rules of construction, construc-tion, bo made to apply to Territories of the United States. If, then, this subject sub-ject were not regulated by Territorial law, it would be difficult to say that the selection of jurors had been provided for at all in tho Territories. It is insisted, however, that the jury law of Utah it dcl'ective in two material mate-rial particulars: First That it requires re-quires the jury lists to be selected by the county court, upon which the organic or-ganic law did not permit authority for that purpose to be conferred. Second That it requires the jurors to be summoned sum-moned by the Territorial marshal, who was elected by the legislature, and not appointed by the governor. We do not perceive how these lacts, if truly alleged, would make tho mode actually adopted for summoning the jury in this ease legal. But we will examine (he objections. In the first place, we observe that (he law has received the implied sanction sanc-tion of congress. It was adopted in 1S51. It has been upon the statute books for more than twelve years. It must have been transmitted to congress con-gress soon after it was enacted, for it was the duty of the secretary of the Territory to transmit to that body copies of all laws on or before the first of the next December in each year. The simple disapproval by congress at any time would have annulled it. It is no unreasonable inference therefore, that it was approved by that body. In the next place, wo are ol opinion that (he making of the jury lists by the county courts was not a judicial act. Conceding that it was not in the power of the Territorial legislature to confer judicial authority upon any other courts than those authorized by the organic law, and that it was not within its competency to organize county courts for the adminstration of justice, we can not doubt the right of the Territorial legislature to associate select men with the judge of probate, and to call the body thus organized, a county court, and to require it to make lists of persons qualified to serve as jurors. In making the selection, its members acted as a board, and not as a judicial body. JNor do we think the other objection, sound, viz: That the required participation partici-pation of the Territorial marshal in summoning jurors invalidated his acts, because he was elected by the legislature, legisla-ture, and not appointed by the governor. He acted as Territorial marshal under color of authority, and if he was not legally le-gally Buch, his acls can not be questioned ques-tioned indirectly. But, we repeat, that the alleged do-fects do-fects of the Utah jury law aro not here in question. What we arc to pass upon is the legality of the mode actu ally adopted for iui panne ling the jury in this case. If the court had no authority author-ity to adopt that mode, the challenge to the array was well taken aud should have been allowed. Acting upon the theory Lhat the supreme su-preme and district courts of the Territory Terri-tory were courts of the United States, and that they were governed in ihc selection of jurors by the acts of congress, con-gress, ihc district court summoned the jury in this case by an open venire. VVc need not pause to inquire whether this mode was in pursuance of any act of congress, for, if such act was not intended to regulate the procuring of jurors in the Territory, it has no application appli-cation to the case before us. We arc of opinion lhat the court erred both in its theory and in its action. The judges of the supreme court of the Terriury are appointed by the President under the act of congress, but this dons not make the courts they are authorized to hold courts of the United States. This was decided long tinec in the American insurance company com-pany i-it. Canter, (1 Peters, 5 io), and in the later case of Benner vs. Porter, lOllow. 235 ) There is nothing in the constitution which would prevent congress from conferring the jurisdiction jurisdic-tion which they exercise, if the judges Wifcon.-in, ortaniicJ AjtiI 'J .1 l" Stat.. 1". Xo it j, organized Juno 1-, l-i, .". U- S- Stat-. OrcKon, oriaa'iiel A usual 1 1, 11 U-St.vt., U-St.vt., '. Minnc.-oia, organized March 3, l-l'.'.'.'U- Now Moxioi. orgmisd September W 'J V. S. Stat., !4. Utah, organized September'-', lvJJ, .' I". fi. Nebraska, orgini.ej M jy J, U - I, In I (.'. s. s-.at.. 1 Kiniju. urciied Mjy J), 1S.V,, 10 U. P. lVjjhiE.Tt"n. orsankel March 1 "'J, 1" .Colors k organised Fobriury l-.'d.U XevadV.' orini-ed March 2, li-1, 11 U. S. DjLata, organizsd 3Iarc.li UHIiU.S. Sut.. J K Arizona, organized February Jl, 1-j, IU U-5. U-5. Su;.. '"!. ' , Idaho, organized March , 1-"".. LI U-5. i iluntaafc ornini-el May St, Iv'l.l'iU. S. 1 stat., -O. J were elected by the people of the Territory Ter-ritory and commissioned by the governor. gov-ernor. They might be clothed with the same authority to decide all cases arisiug under the constitution aud laws of the United States, subject to the -amc revision. Indeed, it can hardly be supposed that the earliest Territorial Territo-rial courts did not decide such questions, ques-tions, although there was no express provision to that effect, as we have already seen, until a comparatively recent re-cent period, ' There is no supreme court of the United States, nor is there any district court of the United States, in the sense of the constitution, in the Territory Terri-tory of Utah. The judges are not appointed ap-pointed for the same terms, nor is the jurisdiction which they exercise part of the judicial power conferred by the constitution or the general government. The courts are the legislative courts of tho Territory, created in virtue of the clause which t authorizes congress to make all needful rules aud regulations respecting the Territories belonging to the United Stales. (American insurance insur-ance company w. Canter, 1 Peters, 5-15.) The supreme court of the Territory was doubtless misled by the inadvertent use of tho words "Marshal of the dis-1 trict court of the United States for the Territory of Oregon," in the Organic law. 'This act defines the duties, liabilities liabi-lities and lees of the marshal for the Territory by reference to those of the marshal of the district court of the Liuited States for the Territory of Or-cjiou. Or-cjiou. On rclcrence to the act organizing organ-izing that Territory, we find that the duties of (he marshal were to be the same as those of the marshal tor the district court of the United Stales for the Territory of Wisconsin. On reference refer-ence to tho act organizing the last named Territory, (he duties, liabilities and fees of the marshal were described to be the same an (hose of the "Marshal "Mar-shal of the district court of the United States for the northern district of iNew York," Hence, the words "Marshal of the district court of tho United Slates" have crept into the various acts organizing these Territories. But the description of the court which was proper in a State would be improper in a Territory. The Organic act authorized the appointment ap-pointment of an attorney and a marshal mar-shal for the Territory, who may properly pro-perly enough bo called the attorney and marshal of tho United States for the Territory, for their dutios in the courts have exclusive relation to cases arising under the laws and constitution of the United States. The process for summoning jurors to attend in such cases may be a process for exercising tho jurisdiction of the Territorial courts whon acting, in such cases, as circuit and district courts of the United States; but the making up of the lists and all matters connected with the designation of jurors arc subject sub-ject to the regulation of Territorial law. And tins is especially true in cases arising, not under auy aot of congress, con-gress, but exclusively, like the case in the record.under (be laws of the Territory. Terri-tory. 'There is nothing iu this opinion inconsistent in-consistent with the cases of Orchard vs. Hughes (1 Wall, 73), or of Hunt vs. Palao ( I Howard, 5S9), properly understood. I he hrst ot those cases went upon the ground that the chancery chan-cery jurisdiction conferred upon the courts of tho Territories by the Organic Or-ganic act was beyond the reach of Territorial Ter-ritorial legislation; and the second, in which the Territorial court of appeals was called a court of the United States, wa3 only intended to distinguish it from a State court. Upon the whole, we are of opinion lhat the jury in this case was not selected se-lected and summoned in conformity , with tho law, and that the challongc to the array should have been allowed. This opinion makes it unnecessary to consider the oiher Questions in the case. The judgment of tho supreme court ofthc Territory of Utah must be reversed. |