Show HE raily MIMI USE CASE hearing before the supreme court AFFECTS ALL PROBATE COURTS judge sutherland C S varian at torney tornay general rind john 21 zane appear hinges on the construction co st of the constitution as 13 to expiration of the term of office court coart orders and notes tho the question ns as to iwother or not tho the terms of 0 office of 0 the various probate judges throughout the state slate ot of utah expire upon th the second monday in january as a provit provided led in tho the constitution or whether they alicy expire only at the epI expiration ration ot of the term for chien hlen the incumbents incumbent were appointed by the president was presented to the supreme court yest yesterday erlay tho the matter came caine before the cobit chui coui t upon it a general demurrer to the quo carranto warranto warr war aoto proceedings recently instituted against probate judge mcnally by the state ex rel re attorney general bishop shop the ruling of 0 the court however will apply to all probate judges now holding in the state judge sutherland Su thorland and nd john II 11 zinc zatic appeared for judge jude cNally iI and C S varlan varian slid and attorney general appeared tor for the state OPENING THE ARGUMENT the opening argument in the lite case was made by judo judge sutherland who aid in n parti tho the respondent holds in the presidents as aa probate judge of salt uiko county for two years it INCAS anti and dated february Fetnia rv 13 33 IEZ and will 0 o ill not expire until l r 13 23 aw by the ho constitution Z art I 1 vill VIII see 7 tile district courts have all ait matters oh clel if and criminal not exempted in that instrument nor prohibited by nw liw this thin Is in broad enough to include tho the probate there are exceptions in I 1 n tile the constitution to this general grant arant of jurisdiction the provision in the bill of the iho judiciary article in regard record to justices of tho the pens pence in an exception see sec 9 of the schedule contains another as aa to tho the jurisdiction tills came cae invokes the question of tho the extent of this latter exception THREE conclusions tho the three conclusions aro are by that section I 1 tho the transfer of the probate jurisdiction on the iho second monday of january ahw depends on the terms of onico of the probate aroh ditc itc judges having then llen expired 2 ahn section expresses the intention that au ail lite probate iio judges con to everel e that jurisdiction until tho ex ion of their terms of onlee onice AA 3 alio T hp anti hon 0 O or of tv tho district court mentioned mention til in that section a a continua continuance nee of th tho 0 probate ju jurisdiction often in the probate judges what is in the legel import of the ahme ahne expiration t ion of the term of twice mim occur occurring rinK in this thin atton te rm of office Is in tho the axed and determinant period of time for naich any regular incumbent to la elected or appointed to hold the officio iho time fixed by low law for his incumbency cum uni bency tency under ono one election clo cllon or appointment tho the expiration of that term tann la 18 its lu termination by the iho flux of ahrie atit natural ra I 1 conclusion tito tho khoory of th fill attorney gereral I 1 Is it ecea mrily that respondents term of a of fl alco a lias has boon been suddenly cut ot off at tho the dato dale mentioned in this that would in be not orly a violent expiration hut but a i intent construction the word ex cx pir atlon can hover hever bo be aror oily used to a ernly tho the bringing to on end anything h having vh az vitality aaa illy by ex I 1 rinsie mean this ecklon aon pr roa ollea met not that lite terms of onico office of I 1 tho g probate judges shall expire on tile tho second monday in january M MC C but for or A tr trant anfor fer of the probate ewes with their records and the power of decision to the district courts court upon tho the expiration of the term of bolneo binco of the probate judae on oil the second slon iton ISK it not an absolute legi slathe transfer it depends depend on that even the lue expiration of tile the term of office of 0 the probate judge if that thai event ban not this provision does docs not become operative for tho the transfer tho the conel din g sentence een of this thin section confirm this interpretation an am tho the fiordi ord and until tho the of tho lite term of office allies of the probate judges much probate judges ahall perform tho the duties now imposed upon them by tho the laws lane of tb taft territory the section then dox that tho the district courts court shall nn an appellate and nal jurisdiction over the d tho the probate audr until such auch latter courts expire by limitation 11 robeo V Pro balo audres and tailor latter courts ar are avnon normous non so expiration of terms of 0 and expiration by limitation mean the ho same VARIAN roll roil TUG TIIE STATE C S varlan varian for the state followed judge jude sutherland and so said ld tb phlen intent of the th constitution la is to abolish probate Iro bato courts al as much auch it vests vents tho ilia judicial power in ill the senate nt its a court of impeachment in roo 0 courts in fix district courts tit in justices ill of f tho the pence and other interior inferior courts that may lie bo established hy by law the provision of see sec 9 ot at tho the schedule operates as AL a proviso or by way of limitation initiation for convenience it la 14 pro idd 1 that tho the incumbents of tho the onico allies of probate judge cuilo continue to exercise tho the thereto however ox ex C filed by 1 y probate court C r t aunill un t if tho the eipl lallon of his big term duh which i e h Is fixed don dell for the second monjay monday in january thin provision relative to the term of offee does not refer to tho the term ere abed hy by congress or the territorial log prior to ilia admission of tho the state stale when I 1 on the state was born all of ile facea ea and terms were at on out cut oft off in continuing under tho ilia constitution it la 13 by irlue of the constitution itself and abo tho tann e of nit all ahlm er eining their f n ct fons under tile com monce with tho the sta t 0 government and expire na as pro filed dod in the const constitution 1 tut ion As to nu ail officers but the provision in if that thy they hold bold az and d elito their offices until under the constitution con t I 1 aution that Is until tho this persons to nil fill the offices iovaldi d for in tho the ca constitution ution aro are elected or and qualified expiration DEFINED AJI AA to probate juda judem however ho the ter initiation ml nailon of uie the tom lo in expressly fixed this for or the reason reanon doubtless doubt legs that oth amise ci banc and it if tho the contention conte rAtIon of respondent c rt I 1 can be maintained the terms of tho the d fr orent probate judges throughout tho ilia state expire at milnes in this elate oi of tho case great confusion con furton would exlus in ono one county or moro more lei in a district tile ali terms of the probate judges having onam all probate matters and bending in such counelia count coun lia tits would forthwith forthal lit puia put into the jurisdiction of thu the district court for that district white while as aa to other counties in the th mine mante tho the probate judges would continue to exer ahm jurisdiction the construction consi ruction we contend for elvea acs effect to the entire instrument nt and lit a in harmony with tin its ricus intent and pur ta pones lACS VIZ f to do 30 away with tho the pro rc anto to court ani ami vet lr its jurisdiction in the tha district court jn ill view ot of tho lite conus con fullon lon that would follow froni from contin uhic abobo judges to for ins ino full time for or which each was ap appointed pp led it aas n provider provided that on a day certain of their terms should expire att attorney anel general bishop took subs tanti ally the he same eam view as that hat expressed by mr varlan being of tho the opinion that the ternie of omee of the probate judges expired on tile second monday in january as aa provided in tho the constitution A large number of au thorit les arc also cited by both mr varlan varian and attorney general bishop to benr bea r out their contention CLOSED BY J M ZANE the argument was closed cloned by john ar zane on oil behalf of judge mcnally mr zane baldit may bo be admitted that the admission of tho the state tale un an end to tile the territorial tor 1 al organization and only tholo laws lawa will 1 ile b tn tit rope force arf are continued byi by I 1 the he state MoM vu vo I 1 Tf trollis Ilo ollis llla 32 pao pac 03 and lit in tills llila coma w WB look only to title tho mc hodula anti and C 0 1 I ilea for illg halit ht upon this sue boea 2 of this thin schedule fiche dulo saya ya all laws law of D L tho he territory of utah now in 1000 not 11 ro n 1 11 1 to 1 0 thin nIt ution shall remain botn 1 fa 1841 in n foro r until aa eliy 4 al ir e b by y ill their e 1 r ow own ll 11 limitations allm Ha tlona or oro are a altered il ored p or r 1 lj 11 by y the h a hence the nn so olo a I 1 inquiry in ill regard to a low law ot at iho he territory in a or riot not it in r 1 I to tho he constitution if it Is not repugnant ll it in continued in forre force the doctrine loc trine alart implied repeals rope alls irk ini the axne e ot an contrariety n r t in ill its full tor force eta which t I 1 h d doctrine 0 t L ya la t in d down in the thal ease of cop va cope united states W CM 1 it Is i not enough to ILS KIIl BJ an the th state domi oes hero here thit that it Is in consistent with th the other lons of tho the that hat the territorial laus laua ft As to probate jud it CIA should not hir tin force hut but tho ilia burden tit in on tho the slate tirre here to show that thai there in in an all absolute lanance bt those laws a we of lite territory providing tor for a court ant anil the iho or of lan constitution the ali law tit tins 0 Pro prosanto lAnto court no last enacted Is found nt at I 1 C cp comp p baws and in odber law of the territory thin rhia alk par alar law was TRI raymd murch 9 is after tho the edmunds cuir law iv had lon paz josd aled on march 3 ia 7 I 1 it t too took k the plato place of tile older en cn act ments on I 1 the he th tho F on tucker law see sec 19 29 yani thit that lh the judge judco of in tach ach county within the iho territory or 11 of utah provided for hy by laws thereof shall bo be appointed by tile and so much of tho the nola of 0 said buld territory as provide for tho the election of such ouch judge are arc di disproved and on n lied tills this distinctly recognizes what la hia ilin th fuel fact that thai tho the onico and 1 I u tell of rho me probate verv ere created bv ltv the tha territorial tas labib end anil r pimply annul annulled ll hope Us IANs as to the rl cUon but left tho the rest real of if them in to t diio 1 to term of onico office an anil if tile dubics of the iho offic lit in full force in to ranke the territorial nw law consistent with tile iho edmunds luchor law the iho act acl of at murch 8 aw tans as P ilia t act in aln m to tle modo alsed 0 af selection it provides provide that there shall bo be a probate judge in each ach county whose term of of ile alco 0 shall hall be two anra earn it dennes his duties doties to bo be to preside ot at nil all s Boin nylons lons of tho the probate court arid and all mes siong of the iho county county court alq other territorial laws lairs make him film a part of the chuu ty court TUG TITO SOLE QUESTION the palo qu quilon alion lon here Is or not thin territorial law la Is no HO clearly and absolutely rt repugnant to site sc 9 of the iho na a to cause it to be repealed the continuance of I 1 iho ito probate cart court until tho expiration ot of ill taft e term 0 of f office dmeo of tho probate Pro hat judges now holding in 1 consistent stent with SM sec 1 art vill VIII of tile tho constitution that lodges tho the judicial power in a court and dla dim brict courts justices of the peace und and such ouch other courts inferior to tile su dromo court as a a may be ly by PAW liw tho the section does docs not say as mr vartan varian it to a 01 may hereafter be b established by law aw its ll 11 lan ani gilge means a oa may now nou or rally may hereafter bo be established hy taw law and the continuance ti nuance of the probate court Is clearly clearl I 1 a with that tha I 1 meet section ion it afi 1 ao alv 0 I 1 I 1 with sw soc 7 of art 1111 I 1 court th jurisdiction which aich Is 13 excepted ext cep t oil by this constitution AS CONSTRUED elsewhere coming now to see 9 of the schedule we find and for this information we oro are indebted to lo the ret rc research arch earch of judge judd that title this section Is taken word lor for word ward from seeto of tho the washington constitution tion in washington tile tho probate judges corp elected and their terms ml all expired on ail the same flamo day the mccond monday in Jar january luary sit and tho the anten lion on in t tho he washington was to tile the probate rio haie judges to hold field out their full terms of onice our schedule simply nl nelv chantres to aw ls and leaves tho ilia mcdon intact and it probably ban lia ill the same ame end in fv to permit the aho judges judge to hold out their full term wo take it that the th court gilt not un lesa espar hold that tile tho pr bate are le tl abed out of onice office slid and it ft ill also give tuch such a contraction consi cont ruction I 1 to 0 sm sec 9 or of tho the dulo as aa give full fall deflect to all tho the Irn guate of that section if the section cllon ik is 13 read us tile thi state claims it ought to bo be read it would mean upon the tha of tho the torm of collico of the probate judge which shall ho on the second monday in january Ja nunry jsse A 66 and it Is necessary to interpolate the th worda cords bloh shall bi b and destroy the effect of tho the tipon the expiration of tho the term of oiny live W claim that it should bo be read an ai A i tt it standy stands anti and then it makes a double condition first no probate court shall expire until the monday lit in january Ja nunry IF ikc P abid nd until the expiration of the ino term of ofelea of the ilia probate Iro bato J which double provision must be ful fulfilled lied to silo glio full effect to lo this lari gull NO IMPLIED REPEAL see sec 10 ll 11 of the schedule continue tho probate judge in falee place doce hi he ballf a un bor ip r tho the description of a civil oil leer therefore thin law la Is shown to not only not repugnant pu gnant to the pro of the constitution but perfectly consistent therewith and thom Is no chanco for even an implied repeal the territorial statute ates tile the office it faxe fix tile term of and the duties pervill ln ing to the iho office and Is continued in force by tile tho constitution tito the frills efla complained of by tho the state that the term of office of probst probate judge will ex cx sir alre e at different times bonts no real le u ity because it wl will mako make no con anict in n jurisdiction whatever but t thero there la a A great emit necessity that abe tho bup kobata judge bo be continued in office until somo me provision Is id made by law changing the organization of the county court As aa the law stands today tho the probate judge line liaa many and important dult tt to in addition to his duties as judg ot of lie he approves the iho bonds of all corporation corpo rallon off leers ho he posses upon tho the of those papers lie upon tho the ill cloney of the bonds oi of tile the dlf dif ferent county cem 11 ho 0 is a constituent part of at tile ilio county government and much responsibility attaches atla choa to 10 him for tins the correct of the county it if tills llila office is cut oft on the iho monday in january choie la Is no office whatever m vcr ly by tho the constitution ution co to |