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Show OriXIOX OF CHIEF JUSTICE McKEAX. Territory v Utah, March term, Third District Court, J 1S73. Jo-r;.h W. Hx-kios, In ejectment for vt. the Monti zu- Ent'tt W. Walla.J ma filver mine. Tli-' pl-iintiff interposes a chal'cnge to array of the jury, on various jrr' in;d-stated in writing and placed on rile Ti:e defendants controvert some of ih-.e k; ounds and demur to others. , The (ni-iiioDS taken by either pariy will bi sufficiently referred to in the opinion of the court F. M. Smith, J. Ilooborough and Z. co'it, in support of the challenge, cited the records cf this court and of the supreme unurt o . the Tt-rritnry, also the Laws of Utah, p. G'J, Sec 2, etc, laws of 1870, P. 12(5; 1 Peters, 340. C. II. Hemstead, J. Spratt and Wm. Haydon, in oppopitiou, cited 2 Graham ik Waterman on New Trials, 153, 159, 100; Laws of Utah, p OK, Sec. 4; 1 tjrecijleuf on F.v.Sec?. 83, 92 and notes; Sedgwick on Statutory and Constitutional Constitu-tional Ltw.-j, 370 6; 2 Kent'B Com. 295; 3 lilaclfS'one's Com, 77. JIcKean, C. J. It was held by the supreme court of the United States in in the case of Clinton vs. Eogelbrecht, (13 Wallace,) that the United States marshal for this Territory was not the proper officer to summon a jury in a case like tho one now at bar, a ease arising aris-ing under the laws of tho Territory, or cognizable thereunder. It is now oL-jecled oL-jecled that Jno. D T. McAllister, who, acting as Territorial marshal, summoned tho jury now drawn, had not lawful authority to do tho Bame. 1' is shown that on the 12 h day of May, 1870, the Hon. this. C. Wilson, thou the chief justice of tho supremo court of this Territory, and judge of this district oourt. and whilo sitting in this court, in an action pending before him, and of which he had jurisdiction, rendered a judgment ousting tho said McAllister from all authority in this court as such Territorial marshal, and that such judgment was afterward affirmed af-firmed by tho supremo court of this Territory, and has never been reversed. re-versed. Tho office of Territorial marshal is not provided for in the Organic act of the Territory; and the seventh section of that act provides that "tbo govci-nor govci-nor shall nominate, aud by, and with tho advice and consent of the legislative oouncil, appoint all officers not herein otherwise provided for." If it were not oonceded that the assembly had aright to oreato such an office as that of Territorial Ter-ritorial marshal, yet it is o'ear that it is neither a "township," "district," nor "county" office; and neither tho assembly as-sembly nor the council had any right to fill it without the nomination of the 1 governor. And yet under the provisions provi-sions of chapter IX, of the laws of Utah, p. 3S, i he two houses of tbo legislative assembly, in violation of the Organic act, ignored the govornor and usurped authority to elect, and did elect McAllister the Territorial marshal. But if this office, oreated and improperly im-properly filled by the assembly, is vacant, va-cant, can it now bo filled? By "An aot to provido for filling vacancies in certain offices in the aeveral Territories" approved, Jan. 8, 1872, congress provided, pro-vided, " that in any of tho Territories, wherein a vacancy shall happen from resignation ordoath during the recess of the legislative oouncil io any office which, under the Organio aot of said Territory, is to be filled by appointment appoint-ment of tho govornor by and with the advice and consent of the council, the governor Bhall fill up such vacancy by granting a commission, which shall expire at the end of the next session of the-said legislative couociJ," It is evident that tho statute does Lot meet the question under consideration. con-sideration. It will not do to say that because the office was improperly filled by tho assembly, therefore there is a vacancy caused by resignation or death during the recess of the oouncil. If a nomination had been made by the governor gov-ernor to the oouncil and had been rc-jsotcd rc-jsotcd by the oouncil; or if that body had adjourned without acting on the nomination, whether the governor oould then make an appointment to till thevaoauoy, is a different question from that now presented. The jury now challenged was summoned by ono who was eleotcd Territorial marshal without authority of law; he was afterwards after-wards ousted from that office by a court of competent jurisdiction; there has been a Bession of the legislative council sinco such judgement of ouster, and no nomination lor Territorial marshal mar-shal is shown to have been submitted to tho council; and the vacancy va-cancy in the office was not so caused as to give the governor a right to fi:l it up during tho recess of tho oounoi'. The Uuitcd States marshal, it is held, cannot summon a jury to try this cause; wo have no lawfully appointed ap-pointed Territorial marshal; and as this court is hold for a district and not for a county, the sheriff onunot serve the veniro, (See laws of Utah, 1870, p. 126.) Other serious, nay, perhaps fatal points have been raised by the challenge chal-lenge to tho array. But they need Dot be considered. One fatal objection is sufficient. Under existing law, or existing ex-isting construction of law, it would seem to bo impossible to obtain a legal jury in this Territory. But, if there are no jury trials here the responsibility responsi-bility shall not even seem to rest upon this court. Were this a criminal cause, the court might well hesitate to proceed pro-ceed and deprive a fellow man of his liberty or his life. Not so with civil matters. It is far better tbat litigants should have the opportunity to oome here and try their cause oven before illegal juries, than that they should appeal to rifles, pistols aud vigilance committees; far better even though the verdiots rendered here should afterwards be all reversed. And the judgo of this court when sitting in the supreme court of the Territory, will not hesitato to review the proceedings of this oourt the same as though he had never sat here. It is useless to dUohargo this jury and order another; for, as the laws now stand, and are now construed, no jury can bo obtained to wli:h Borne fatal objection could not be urged. And experience renders it more than probable, that it will be far in the fu ture wnen tne muoa neeuca icgisiauuu will relievo us from tho embarrassing dilemmas in which wc find ourselves. What, in this long interim, shall be done? Shall tho mining interests of Utah bo liable to be suspended by injunction, in-junction, and yet indefinitely denied even the semblance of trial io actions of cjeotment ? Shall litigants be ic-I'ortned ic-I'ortned by this court that they cannot havo a jury trial here, even though they waive all technical objections? Shall tho court adjourn sine die ? Must society be thrown into chaos because some oiherdcpartments of government neglect their duty ? Extraordinary emergencies must be met by extraordinary extraordi-nary meaiures. Influenced by considerations consider-ations of pubiio policy, and by such consideration alone, the court overrules over-rules the challenge to the array, and sustains the demurrer. |