OCR Text |
Show Tpolygamods" children! ! Tie Territorial CuA Sijs Tfiej J ttarota-eittfrontte Fatter. jiPPEAL TO THE UMTCD STATE! i MTKEME tfllKT. i 1-p.m 11k- Opbio- .r t!.P Olhcr. I JJi-- ll'UrHnni lli'-mt-. ! At the ioa of the .upreiae Court, yitterday anercoon, after the XEWS-wciit to pre:, tire WSolMng deciiion wasreiider."!. SuiimcCeBrt, rUh Territoo-. In the msacr of the etateof Cf-orge IUtl!ey, deoca'ed. ITenuerson. J. . Jie.iuejwiu . r The applicant, llulh A. tvhu, Itcujaium T. llamlkv, furry U lllaudleyand rjawh '.. Chapman, Ietitkml tlre'TrAjate court fora dk- Itrioutive lliare of the estate of Ge"Wja llaudlty, deceasetl, as his heirstit-law. Tluir .-UlIou was denied in the prolatecnurtaml they appealed to tlie ili.-tnet court, where thejudgnient of the irlt. SJurt wasaflirnted. andihnv ifptaled to this court. The fa5 iu liat (ieerge llami-levilV llami-levilV t intrrtate on the loth day of May. 1874, leaving an estate valued atSi',W. He left surviving him his wife and eiht children, named n -hpecliTclv, John Handley. WUhain Handiev, -harles J. Handley. Km-mi Km-mi N. Handley, May K. Handley, Ituth A. Newsoe. Itenjamiu T. ) Handley asd Harry . Handley, ; thelatthrtTjof Trhoni are peti"iiu-; era and applicants herein. Thefictt i four chlhncJi above named nc all children of the decead "nil KliiM-lielh KliiM-lielh Haudley, hf'?.ful wife, and the latt four ".-ere ciiildren of the ta:d deceieu and riarah Chapman, his piural wife, married to him according ac-cording to the tenets and rules of the Mormon Cliurcli. and were the fnlit of that polygamous relation. AH these children are (-till living, except ex-cept Mary, oue of the jilygaiuous wife's children, who died sole and intestate September :, liiS aud her mother S irah A. Chapnnn. ha succcede.1 to her Interests. The petitioners pe-titioners nml appellants, therefore, there-fore, are tlie xdyganions r il-legltiniRte il-legltiniRte ciiildren, 'and the -lygauous c'litdli aud iIyganiuUs wlfetlrel.tr.'r claiming a heir of her tJceatnl daughter) of the deceased, de-ceased, and the only jueitiou pre- ' tented by the record is u hether the surviving polygamies or ilitgiti-mate ilitgiti-mate children are heirt-zt- aw of tlie deceased and entitled to share in his esite tin: same ks children born in lawful wedlock. The aiijielhiats base their claim upon the provisions of an act uf the Territorial Iiegis lature, approve.1 March 3, '&2, Com. Law, 1S;, is-er 5C5 aud 2S, section tJST. wh'c". riads as follows: ''HlciriUni'.ts children and their mothers inherit In like icaiiDer from the father, whether acknow'-edged acknow'-edged by him or Hot, pruvidot tl shall be made, to apjear to the satis-faction satis-faction c?Uieco"rtt;it lie w.t; the father uf the ilicgitiaiatc child or j children." Thfa statute, so far as Territorial ; euaetmeiits are concerned, was the one in format thetimeofdec-Jeiits death. On tin- part of the resnd-nits resnd-nits it is contended, first, tliat this -tatute was auniillui by tlie an'J-f an'J-f olygamy ai of Congress, ypnt-urcd Julyt,ls!2. Sepoml, tliit thr apt is against public poiipv, and therefore there-fore void. Tilts aRti'ifilygaiiiy act above referred to Is as follows: " 'T it rnacted by the Penatn end House of Representative of the United States cf ASKjJca, in Congress Con-gress assembled, that every icrsaii having r. husband or wife living, who shall marry any ether rson, whethermarrieil orsingle. iuatorn-tcrj- of the Unitt-d States, or other place, over which the United States have txclusive jurisdiction, shall, escept in cat srcc'.fied in the t.roviur).f t!i Sets ticn, be a.ljudgnl guilty of bluny, and upon cor'.MM!: thereof shall I iuni:b4 t-y a tine not exceeding fiveiiyndrcl dollars and by imprisonment impris-onment Sir a term nut excelling five years; provided, nevertheless, that this t ection shall not extend lo any person by rea-on of any former iiania:ewlioH-huslQnd orvrifebv (such marriage shall have len al-nt al-nt for five suceessive years, irtU, ut lieiug known to hicIi i-ersan TlMiln that time tn be living; nor ItoanyfertHer Carriage which shall Iiave Lvsa uiFsolved by the decree of a competent court; coto aiiyfor-Imer aiiyfor-Imer marriage whieh shall have lieen annulled or pronounced v.,bl y the sentence or decree or a coe.:-peteiit coe.:-peteiit court on the ground of the nullity oftliemarriagecovenaut. Sec. 1". A n J be it further enacted ibat the following orJinau.if of the provi-ioual governtnent of the state f Drteret. so called, naniily: "An ordinance incorporating the Church of Jesu Christ of JtterlaySainb!" asFod February S, in the year Ib33, and adoptol. re-jtiai-tij. aud m'sde valid by the govx-moraud 'eul-lative assembly of the territorj. or Utah, by an act assed January l!t, in the year lvw. entitled '-An a-t in relation rela-tion to the compilation and revision of the laws and resolutions in force in Utah territory, their iblK-atiou mil di-t'ibutioii'and all other aits and jiark of acts heretofore Ossed by the said legislative as-embly. of liie territory of Utah, which cMali-lisli. cMali-lisli. supjArt, maintain, shield or oounterK'iicciioIygauiy I, and tlie same hereby are disapproved and annulled, provided that thi act shall be so limited aud construed ss aottoaQVct oi interfere with therigbt ofprojvrty legally acquireil under the oidiuance heretofore mentioned, uor with the right '-to woriip Cod according to the dictates of on-cience. on-cience. Ijt to onlv annul all a.t ana laws which establish, maintain, protect or countenance the practice ufiolygamy. evasively calleil t pirit-ual pirit-ual marriage, however dicuisl by legal or ecclesia-tical solemnitlfc., sacrament, reremony, consecration or other contrivances." I!y the organic act approved St-i -tember !). lb-VI, relating esially to Utah, Congres- conferre-J ii.n the territorial legislature the right to legislate uin "all rightful snl jects of legislation.'- but reserved to itself the right to disapprove aud thereby annul. Cougre-s beiug the supreme legislative authority over the Territories, Terri-tories, it .vould have thi.-, right of di-aproval aud to annul any Territorial Terri-torial law. whether it wa reserved or not. (National Hank va. Countv or laukton, lnl, u. S.. 129). If. tlierefore, the territorial statute alove quotiI or that part of it which p-vides that illegitimate i-uiklren inlierit from their father was disapproved disap-proved and amended bv the anli-lolygamy anli-lolygamy act, alove liiioted, then the petitioner's claim was proper! v denied aud this question i-solved by determining tlie character of the territorial acL Is it an act or "part of aa act" which establishes, uiaiutains.sbJelds or countenances polygamy? I u determining the diameter and meaniug of a legislative act, the surrounding circumstances existin" attheUmeofitsia-sage, as shown by couteuieraueous hktoo "bould becon'idered. Fudlich.lnhis work on the interpretation of statutes, sec. , , thus states the rule: ! "The interpreter, in order to mi. i derstand the the subject matter aud thescoiwaud olject of the enactment, enact-ment, must, in Cojie's words ascertain ascer-tain what wa the mi-chief or de-' T.tSfur,Wlli,d'.':,e Uv 1,aJ " I'm- ' 'li; !al if' Uv mu't ra to hh ' ad all thoe external or historical I facts which are nei-c-arv for that purpocand which letl to the enact- ' meriL He must refer to the liMory I of the times to ascertain the reaM.ii I for aud the meaniug of the provi-iousol provi-iousol the statute and to Uiegeneral state o. opinion, Kiblic, judicial and legislative at tnc time of the eaa-t- I ment. . , j- i this purpose, the court, in interpreting interpret-ing the statute will take judicial no-tice no-tice of contemporaneous history, or i other authentic works of writing.-' . In determining Uie meaning aud ' effect of this statute, theretnrp v.e are U consider that at the lirae the sUtulo was passed the terriiorr tir.d but itcently btt-n settleJ and or-t!l;-J: lljq n wa iuhabiled al f mrat cxdu-ivelv by i yU vtf l- , , JtercJ in , " rT-""' J PIilrali.,rr ?' ' wirt-iaai fon.-.ues.a'a jartof their n-ligtLUsfa':ii,aad that its practice was roaru' c ami ttg tlitm; that the le'Utlvc Iiodles elecUtl by thtsc iieoMe MJight to support, up1. maintain and countenance Jr. Tny result T p-ly-'-v ? a plittice wouki be ha"; would In? known to Ihelt-v as Illi-gitimate children: iii-ts1 iii-ts1 that would U; Its fruit; there was no provision of law by which these ;,iFgitlmste ciiildren or their jintliers eould inherit from tht father. This m tbc uin;urstioliod condition v( Ihi Tirntory when this statute v.a eia'tf.'. sn'J !n I view of it I ItHTi W doubt it wss inlended to VJ HJ fend to suprt, ma' ii' is and countenance Iyg-alny. Iyg-alny. imagine a wcuian approached approach-ed with a proitlou of jiolygamy under such clrcuBtauc, no untie un-tie sentiment against it to deter or hinder, the anxious inquiry would be as to the "eral Ebtu int lights cf her1 fud children by thl- sfttute they were provjfted lor lit it is contoudul that it would deter men from entering into olygamy and would tend to create h senti-iueut senti-iueut against it on the putt ot legal wives, but this would not le soasto -tioliellewin it. It cannot ! duaj'i'd tliat if wlygamy Ws rfht, this ctfiihl lie a proitr prsvisiou and it-, advocates inu-t so regard it. 1 1 is further contended that the provisions of a territorial terri-torial statute in favor of illegitimate children ia proper measure lor the protection uf c:i unfortunate and luucceut (lass of persons, and that Uie act of Congress should not Ik- J construed to pre vut i l;an J thai it was not the ntentioc of Cocgres, o go beyohd; theguilty iartics la iiii-iuginaltits iiii-iuginaltits or iiiliietliig punisl:-menls. punisl:-menls. 'i ills view has been urged uio-t eluenlly aud with great anility anil-ity by tile iearniti cauutel for the aplhiiits. It luiisthc understood that Cougrewas legislating agalust polygamy :s an InsUtutiun, that it intenaeii to disappmve of all that tended to establish, support, eonnt-enaiK-ci ruiaiutaiii it;il sought to lessen less-en aud prevent iilegltiinatechildren by breaking up and destroying tile system that supplied aa 1 produced them. Innicnogani'ius communities, s is well understood, the invar-Sable invar-Sable moral s?::t!mtut makes a nlain distluetiori between the "ill begotten" begot-ten" and the '-lawful lioru." ami however much we may pity and sympathize with (he innelit suf-terers suf-terers from this seutiiih-nt, it must lie acknowledged that its existence is one of the potent factors ill preventing pre-venting v cial aud sexual irregularities. irregulari-ties. Cimgrcs-. lias recognized the potency of denying to illegitimate children tlie rigiits of legitimacy and inheritance as a means uf breaking up and discouraging !ly-gaaiy. !ly-gaaiy. 'In bieactsof ISSi and ISS7 12, stnt. at large, 31. S, slat, at largo, o.'iTJ !t is pio-.iJed that lllegl-timatefhildren lllegl-timatefhildren begotten thereafter I shall not Inherit. And H em)hittic I is tlie IcDguage of the latter act tiiat I it may w.-li be dpattrd whtilier j testamentary provision air be made for (Mini. (" ic .rgument it was cont'.1-ie'I hat the law of 1SS2 J sCp.a pruvi.itd tliat i'-'nitnnte children lv,.ttv-ii thereafter should not inherit, and this would have been unnecessary If Congress Con-gress liad. as contended, In 1 2, annulled an-nulled the territorial act. and this is claimed r.s evidence that Congress j old not so coti-trae the law ot ISi, J hut it will I -.-en that the art ofj !SS2IeHImtesjlygamouscli!IJren heg.'tlea l-frv: lis nsage. If, uu-j der the territorial iaw. they already I iuheritcd "i:. like m inner" a- legitimate legit-imate children, W.s wi:hJ have been unn-- 5iy. 'io my mind, all thl- T. only eUience that Con gress intended to legislate Un all these sutjects (or I'-eif primarily, and without nference ti'tfce territorial terri-torial enactincnts, excel t to diajp prove and annul all a-ts or jaris of acts thereof w hu-h t-nd to eac.ur-age eac.ur-age or coun'.cnat.i e lygamy. 1 1 is contended Congress ii'.l n.it iuteud j to annul Hit- tt i htorial provision and did hot Vegard it aa cue of Uie j ads luat cnnteu3'.cI mci prob-ct- j ed imlvgamv. 1 vajseit has at iea-t lm made similar provisions. Iiu: the acts referrt-i to only legitimate dilklre. Ur.i b fore ami witiilu a -.hort ptril nft. r Ibc passage of tlie act. The oi j-'.;on cf extending the provision tot-hil .rcn born witi.in a few months afu r the ?ct. placing them on an eijui.ilty with those born before, is ton obvious to n .,uire mention. Suls4antic;iy, liiiWarLs I only kgittmate chllilren U-gottell iinortotlieirptssngeantlp-.ibll-.atiou. it is a vciicession in favor of illegitimates il-legitimates then U'gctten. ar,J as lefo.-. su.tci, tli! is i-oupled iili a provision denying Use right of in- , In ritacce to litose iiegotten therc- after. The Urritorial ait, on the "ontrary. esUUIihei a continuing ' rule Uiat run with the future. In I this respect there is the same .litler-ence .litler-ence --tween the territoilal and federal acU that there wcula be ltwt.-n a jordou granted for a st oilense ami a cianmission to go forth and commit an offense In the future with im4inity. I am of Use opinion that the territorial act was disapproved and annulled uy theanti-iiolygamy act above referred ", and that tlie judgment appeaied from should lie nlrirniid. Zaue, C. J. concurs. llli: DIBSBSTUIU OPINION. Territory of Utah, in Supreme Court. In the matter of tbe estate of George Handley, lii-ceased. Opinion l.y l:!aekUuu. judge. I am comiiellej to dlsscm from the opinion uf the ciari. Tlie facts are not In dispuU-, Imt are as stated. Tito only question is, Was Uie law such in IsTt, when the decedeat uie 1, that an iilegiti'jiate or K)lj-gamous cbiM was entitled to share in his father's estate? iiy the law of lb ! of the Territory of Utah illegitimate ciiildren inherit in like manner from the father whether acknowledged by him or not. provided pro-vided it shall le made r tlie satis- fnetion of the CHirt thai h- was the lather of such illegitimate child ir children. In like maimer (referring to I other portions of the act) means, a. legitimate children. Thero is no question made. u..r could ativ 1 sui'vessfuliy made, that "the right o illegitimaU; children H a rightful sulject of Kgisl.iO.io. Therefore, if this law was in force at tlie lime, in I-sT-I, when the decedeut diil. there can bo no doubt that tbe appellant was entitled en-titled t . a sin'.- of hi father's estate. es-tate. It was in force, so far as any act of the Territorial Legislature at tliat time was concerned, for it had not been repeal'.. ; or euangea by that body. Hut the contention of the respondents res-pondents is that it was annulled hy the act of Couirrc-.-. of IS ij, found in 1 C. 1.. of Utah. p. Hj. Sec. 1L which annuls the act of the Territory Terri-tory of Uttb incorporating the Church of Jeu Christ of Latter-day Latter-day SaintK. and all other acts or parts of acts heretofore pak-u bv said Legislative Asse.ublv of the Territory of Utah, which establish, support, watnUiu, shield or coan- , tenarce polygamy aud the -ertion closes by providing that the pur- liwsenf this apt shall be only to au-uul au-uul all ads and laws an-i parts of laws which itabiib. maii.iain or countenance the nrrtioe of tolyg. amy, eva-ively cafled Ky-ritml marriage, mar-riage, however dLsguUed by legal or ecclesiastical sacGUttenls. cere-minirs. cere-minirs. conseciations or otner contrivances. con-trivances. It Is cuateaded that act of Congress Con-gress annuls the act of the legislature legisla-ture ot Stall giving the right to illegitimate children lo share in th.- father-'s estate, lecuse such right o! inheriUnee sup:n, milatains aad encoungis pclygamy. The purpose of tlie act of Congress Con-gress of lso"2 was to dVline and punish pun-ish lolygamy nu i to annul all laws of the ls.-rr..iry ill any way miking it legal or giviug it countenance and support. Nothing is said in tbe act of Congress in reference to Uie rights ot illegitimate children, and if that subject wa in the mils! of Congres. it w.-iild lias.; be, -i expressed ex-pressed -.ud !..-. Irfi in I'oubt or u--ert-Mity C. ir'. .i i: -t fiver tLe , repsa! (! !iis v. !, ' rfi n and I U v i -lu--- . -t- - 'cpeal f.rmc !'.- .- i ' tn- r . are sol repugnant that they cannot both be ' administered and allowed to stand. U. S. vs. 07, Packages, 17, How, S3. Ked Ilock vs. Henry, 106, V. S.. M3. , . t ps Parte Crpfs Do-, lr t. c. Chew Heong vs. United Stales, 112, V. S., 33. And certainly the same course of lutein talk n applies witbiqua If not more force to tlie annulling of laws. The law of the Territory was before thu Congress, at) J haw itiuhll easier It, .-vo'al'J have been toapaul tie Territorial act by name, if it had intended that, than to have left j its annulling to judicial intcrpieta-tioa intcrpieta-tioa hy a sweeping clause that nadi more like the rounding up of sentences in a stump speech than a soleniu set of the highest legislature ot the nation. This law of inherit-1 aricTj Tr-a before Congns, and If the meaning i-i to be given totheje general words claimed, it clearly al -dlcated its functions and left to the courts to make and annul laws by judicial interpretation. I lean not be cupixxeil Congress Intended any filch thibg. Courts are like man and sometimes not overburdened with wltlcni. and it would be, if such a thing can be supposed, n most dangerous exercise of legisla-tivo legisla-tivo authority to frame laws so as to leave to judicial interpolation their enlargement aud annulling. Where tlie law would 'liegin and when it would end, would bo left to conjecture conjec-ture and uncertainty. The law is uncertain enough Interpreted a? bast it may be hy Hie courts, and if the Interpretation contended for was given, conjecture and uncertalnty would be vastly Increa-od. It is a!-' wajs to lie presumed that Uio legislature, legis-lature, when it c-utcrta!nsau Intention, Inten-tion, will express It, aud that in dear and explicit terms. (Potter Devaris;!0.) If tills Territorial law is annulled a right is taken uuy and all such laws are in the nature of a iienalty and are strict Laws, and are nut to be extended by Intendment. Another course of construction in such statute is tliat where general words follow thu enumeration of particular cases, scch geneil tronrt urehekl to apply to cases of the samekind as particularly mentluued. For example, an act of Parliament provided whoever stole sheep or other cattle should Iv deprived of tlu benefit of clergy anil the court" held that rther cattle only meant sheep." (Potter Devaris, pace ItS to J29.) Tile wonls of the acts of Congress tliat i: ijfliimed annul thu act of the Utah legislature, ami which "establish, support,mainbiin, shield or cou n tenauce polyg imy, " i tc. A f-terwards f-terwards theie are worus of esp'aua-lion,lut esp'aua-lion,lut words of e. planntlon cannot enlarge the meaning of the words they arc intended to explain. These wonls are to be interpreted accord-Ing accord-Ing to their common or ordinary tueanlug. Allowiug illegitimate children to Inherit from their fathers does not establish polygamy, .Ices not support it; does not -M",ntIn it; does u"t ..em tt; does lwt countenance it. For it i3 consistent with tlie severest punislmient of wlrgatny and its entire overthrow that III -gltlmate cJiiMrcu should inherit fmni their fattierx. Therefore, do not think it repenis , or annuls theact of the Territorial I legl-lature giving to illegitimate j children the right to inherit. Iain strengthened in thisoiiinion ly tlie act of Cohgreis cf lb-? calhtt the Kdmunds Act. Section 7 of that act shows that it wx net the inten-tkm inten-tkm of Congress to disinherit jily-gamoiis jily-gamoiis children, fur it sr.ysall ioly-famous ioly-famous children born before the tirstilay of January, SX shall I legitimate, making it char that in the mind of Congress, nothing was intended by the act of ls-;2 to disinherit pol.vgami.os children. The act of the ltgl-hUureof Utah says nothing about ilygamou: children;, it only says illegitimate children." Hut the act of Congress goes further and says Iy-cauious Iy-cauious children shall he .'eiri- tinnte. If. therefure, the te:-ritorial te:-ritorial law, by inference, encouraged encour-aged and countenanced polygamy, much inore did the law of Congress and tliat idea cannot be entertained enter-tained for one moment. Again, theactof Coi'gresisof lhs7, in the 11th section, provides tliat no illegitimate children shall hereafter I inherit froln their parent, and annuls an-nuls all laws of the territory in lef-ereui-e thereto, Imt continues the lower to inherit to all children liorn within twelve months after tl.e is-sageof is-sageof this act; so that if allowiug illegitimate children to Inherit from their lathers encourages ilyganiy. Congress is guilty of fo-tering tliat institution. FortheperimI ofgetta-tlon ofgetta-tlon is nine mouths; that leaves three months fur men to beget illegitimate ille-gitimate children, ami encourages lolygaroy for that length of time. liutdoes. in the nature of things, the rmissioii of illegitimate diil-dren diil-dren to Inherit of their fathers encourage en-courage or countenance jiolygamy? If so, how? It would certainly increase in-crease the hostility of the lawful wife to polygamy and the opposition of her children, fur it would Icsn ttieir iniieritaniv; and it would not increase the man's i-sIou.-. or his love of leche-o and dl solutencss. 1 1 only takes troni the Illegitimate the stain of liostanly, and pla.-cs It on a plane where it will not bo an outcast out-cast without reeognUetl relationship or family. I-ookmg over these statutes and rememU-riiigtheconditionof things in tiiu Territory of Utah at that time, I am forced to the opinion that the act of Congress ot Im.j did not an-mil an-mil tlie act of the leghl.ture of Utah of 1S.V2, allowing Illegitimate diii.lren to inherit. It (crta'inly did not In term, and cannot be made to only by an Interpretation that amounts to judicial legislation. Why should Cougre-s leave to the courts to hunt i-ul the laws of the Territory it intended to annul, w hen the laws of the Territory w i re liefore it? Whose duty was it to point out the laws that maintain and encourage polygamy? The Congress or the courts? If Congress Con-gress iwlnted them out, the quittion was definitely settled. 1 f left to the courts, uncertainty would arbe, end dillerenees of interpretation wouid invariably occir, an.l the admini. tratkm of the law wouhl be rendered rend-ered uncertain. These remark only on-ly riiow that it could not have ln-en ihe Intention of tho Congress to leave to judicial acumen the'llndiiig of those laws of the Territory that might lie thought to maintain and encourage jiolygamy. It Is said, however, that that art of the law which allows the mother of illegitimate children to inherit clearly encourages lolygamy that question is not in this case and If courts decide the questions before them they will lie busy enough. But it may lie remarked that it does not follow that because the mother moth-er of Illegitimate children are allowed to inherit, encourages polygamy, that tlie inheritaui- of their children would and does encourage en-courage that vilo practice. The Congress may have had the allowance allow-ance of mother of illegitimate children chil-dren to inherit when It ued the -xHvssion parts of Livvs; I do not think it folio xs that Congress, when it ssed the jaw of IMS, had ill mind the right of illegitimate children chil-dren to inlierit from their futile., a encouraging and supporting polyg. amy, because it was well kno'wu at thst time that it was extensively practice I in Utah Territory. Therigbt of illegitimate chiljren to Inherit from their fathers has been universally upheld and permitted per-mitted from ISii until now, and the title to much property is based upon its validity, and courts will and o. gut not to declare that law invalid wilh-ut weighty reasons. 1 think the law of the Territorial legislature of 1SS2 was In force at tha time George Handly died, and that the appellauti are entitled to share lu their estate. In the caeof the estate of Thomas Cope, in which the same question was involved, Judge Henderson announced life! as the case was tried before Judge Anderson and as Judge Zane appeared as coune, It I wa submitted to himself and J udge l!!a. '.Vim to decide. They could j n t agree, hawever, and the Judg. went of the court l!oir, denying I the right of the children to Inherit, was affirmed. Judge Judd at once gave notice of an unpen! to (lie Supreme Court of the United Stairs. |