Show perri perrl DERBI mory TOBy A a SUPREME COURT evl ell before the kop hon J 13 mclean mckean 0 J i 0 af sr 16 v i aej jr TP 6 F strickland Stricklan dJ I 1 I 1 cr cronyn 0 il V pearls fc r rl I 1 Ir A ra Appeal ar e W a from f thel them thel I 1 vs I 1 F third j W chigley GHi gri gley gloy J district coart ther iii in this case shows that the plaintiffs commenced hn an original suit against the defendants inthe probate court in salt lake county upon a 1 promissory mote hote given by the defend defendi i ante tbt tor the to this suit the defendants appeared and without tronto the jurisdiction of the probate Court filed an ati ails alls answer afterward the tho case was tried before a jury which je ze bulted in a verdict and judgment foi fog the e p plaintiff a naiff from this they took an au aop app SOP ani ari peal ii but failed filled to perfect it in time after the appeal was dismissed the district i court of the third judicial DI brict triet on the application of the d 3 fe dw ants ante issued a writ of certiorari which brought the case to the district courts 1 anthe oa the hearing bearing the district court hel held that the ther probate court had not jurisdiction the judgment was therefore reversed and the suit buit dismissed an ap jceal brings bringa the case chao to this court the only ohly question involved Is have the courts in this territory jurls juris im civil cases at common law this thi thia question qu Patton is to resettled balde de term lhing ahing the true truo meaning of r r sll sli r the tho organic act acts TT j these questions question jhb 1908 dative power of the Gd governor vernor kernor and legislative assembly of this Ter territory X shall examine first the act of utah h i J sec see 23 v 30 of the acts of utah pro vides shall be a judge of probate in each county within this terril terri ferij i to tory iby iry whose jurisdiction within his court in all bases arises within thelt bifid taws bf the territory sec seo 29 p 31 of the sama same bame act says the q C ate cou courts arts in IV I 1 their have power to exercise both civil and criminal I 1 fand as well weli jrz chancer chancery yi as at law I 1 when liot by J Legle enactment and they haf hadjie hay lye pye Jie got goi governed mined dined by the same bame general genei genel tule jule sand as ai to practice as is ahe he distri other parme parte of tho the the same A act rt provide ife for a bealon Be alof crutti court the keeping g of a clerk anad by these courts with a sheriff to e execute 1 l they are aro and petit jurors thu for them all the common la law requisites ora ofa of a court of record seo sec 1 p 34 of the utah laws provides that all hii all ail the courts of this territory s shall a ave llave leave latr jaw A and nd equity jurisdiction 1 ja civil cases anid arid the mode llode of cioce procedure ar shall ba in baid said courts 11 no not perceiving any ziny ambiguity pr uncertainty in the meaning of these statutes I 1 must conclude that if the legislature had power powen to confer this jurisdiction on these courts it has been done ethere I 1 therefore pass to inquire whether there is the requisite legislative power in the Gov ernar ern grand drand and legislative Assembly df utai utah to confer this jurisdiction to deter deters mine this I 1 shall look to the Organic id act abt and examine it in connection wity t the constitution and laws of t theunis theU nih nin ed states and with the debmon decisions of the supreme court the night right and aud the duty lot lof the legislative department bof all jm m 1 pdt en ts when not restrained b bya i constitution to provide cour courts sand andio to fix or set bou bounds s d to their judicial judicial powers thi constitution st ilu irwia of the united states art 3 sec 1 I ls bays ays the judicial power of the united states snail shall be ees gea vested veste cea di one supreme cour court ta and in such inferior courts as the Congre eq may from time to time ordain and ea esi ta cablish tab blish liah 11 by chist thisie it appears that con grosses charged with the dud of providing vid iby aby iab lab islar lay firis lis lib ils its legislative power gor for r limiting limion 01 fixing the number nu niber af judges af pf 01 supreme court and of bing 0 law lir the number of inferior Co courts u r taw erlof their thel j judges u d ge s andhor inq aej hel original and appellate jurisdiction of or each as ag aswell well weli as their exclusive on arcon con po we ys and babel late jurisdiction 1 odthe of the z ehe Ar article seo see 2 P eiffer sti statin ting gj the een aen of cases eases tto fco which th e judicial pa we r united of there are eleven elevon fand tand stig stating ting the classes in which thesa the tiesa av i prem eap urt hail hali ball have original durrs dures s diction i adds that in all iother cases eases it ita shall ha ap po I 1 late J vrisida his hns ris act on poth bothi as daud dand joac P w except t as thel shall ri all ail tt I 1 hete e we find 10 it 5 is not on only I 1 1 r tha A oti the duty of congress to limit by 6 y law the appel appellate jurisdiction u r of ot the supreme court to C create fa ate inferior courts and to confer upon them oil original gibal jurisdiction which may be exclusive or cong coup I 1 atthe at tho kho discretion of Coil congress gress by bk the act of sept 1789 congress ebere exercised ased its unquestionable right to create infer inferior foi loi courts counti to limit their juried jurisdiction I 1 action and to regulate the appellate jurisdiction of the supreme 8 court these those are referred to not bej be bel j 1 cause thy thoy bettle settle the question now be before us but iut because they theil establish what every everyone one must concede that it is a rightful subject of legislation to limit to giad fo to fh fix and to bet set bounds to j judicial power powen and if need require to create new courts and abolish old ones when not restrained by a constitution or a paramount law it has been claimed that the organic act Is a constitution for utah a claim which by po no course coarse bf reasoning can ba sustained yet if it ft I 1 settle bettle question of legislative novt it may be observed tuat that thele there U iet 4 plain iain lain andl and nee necessary ess ebs a ry distinction to be drawn bei be i the tho constitution of the united states and the f h astarb aSta tB or an organic acton aci act of a T territory r r I 1 to Y in iti ra rei re i ration to thet of I 1 je I 1 j dative powers on ed I 1 helli helit the tha h consa constitution aution of the hued aued hav i ing been beon given by the states for alna aina supreme law Is understood to td construed be strictly thatis that is tw tautau au nui i i theorize the congress to legislate isgate oni on such subjects andon only bun cue buch such ch subjects subject a as are expressly or brne by necessary imell 1 cation therein contained the i aution of a state and an organic act ac arld arid are boll bolli bollito ltd p construed ed III ill liberally that is to 1 0 o alith authorize orize brize legislation on all ail aright l ful fui subjects of bf legislation unless it bet be on subjects by it prohibited prohibit ea this is in harmony with the he theory if not with the practice bf the american states that all just powers af th tha q gavar governors ors hie dle are derived fram ilie itie cois cols consent ei I 1 he governed before proceeding to the thel organic act I 1 will redy redi remark ark that neither the constitution or a law of the united states limits or attempts tot limit except in a very few babes cabes cases tho power either 0 of the exec ive lve or legislative pi the T territories ek ft I 1 foes and that no law of congress exists which defines limits fixes or beta sets bounds hounds to the judicial power of the probate courts in thia territory organic act sec see 41 the the tho legislative po wenand authora authors ity of said territory shall be vested in the mon mog and aud legislative assem i bly sec see 6 says I 1 the legislative pow wa j er lf of bald fd territory shall extend to ali all rightful subjects of legislation conj con conk J biste sistena ift with the Constitution 1 of the united states and nd the provisions of 11 then thea ic follow liow certaI certain 4 gions am among which the adria jurisdiction diction oi of he bb probate courtais courts Court sis is not mentioned directly or ih indirectly directly we iu iii i guage nind find this legislative power exi ex 4 i pressly given if it it be consistent with the constitution of the united united states and andla ibbe a a rightful subject of legislation i which 1 F trust J X have before bufore shown conclusively that it is anace an act is consistent that is nob not inconsistent when the constitution bays says nothing 9 upon a subject of power idaer of a court not therein named a statute naming the court and limiting 4 tion must be consistent with the con one ono statute nami aga nga boura without seeing settin bounds bolts is not inconsistent with another statute naming the same bame coult coutt and betting 15 td hip fly wh when eli ell aval aufa ah tha dhority iffy is expressly given h in a i 1 tibt an jq g to a legisla i tive d e art n acta legislate g on all night right ful fui r u iasu subjects ts such a power ought not to be neutralized by othen other wards therein unless these other wor clearly showed such an mm intents intent or at lea iea heastan stan intent to ihrl maket enn eft hp cabean caspan ex caption n to a general p power ower it is no not ta the various aun aud ejects 4 t e a a ti v AAs pa si s 4 i rae rne t bibly may ex 1 eroid 10 its 14 1 lawful brur u rowers powers nor nur tor tot enumerate d exceptions to 6 1 right it is ih qui e e ti nough bough h for our pur to show has beford defor beni deen a shawni w ip that the legislative power fixing givin giving gf limiting or settin bettin setting betting i bounds to judicial powers is a rightful dub nuh jov jot of or daleas ua less leas clearly m power dower land that i in n the case at bar no higher power has restrained it passing over several mat tera contain contained dd in id abdel constitution and the organic act relating to inhibitions i gumti on congressional 1 and sud nd territorial r 0 rial legis powers not necessary to be nam named lecause not ine eme affecting 1 the at barl bari bar 1 I proceed to fo tiie tile thenintha the ninth ya the abt say Bay payA AThe iThe j judicial ud adial power b 0 of ahall be vested id a fru supreme preme oreme cour IlAt flo fla colad opha in JusUp gawf gauf qa Sf vf llyn the m P peace ce vee uee the jurisdiction Q of fa ral courts herein provided the appellate and be as limit ed d by law by what law A law of congress Con gress gresa or adlaw of th the territory tory A law then in existence or a law thereafter to be passed none others are possible I 1 certainly not a law of congress no nor non r a ladof law of the territory then them in aex jex clalence for there was none nor cau can it be a law of congress for none has his been passed Is it not then evident that it weans a law jaw of the territory thereafter to bep bey be passed assed if in this I 1 am it is impossible for me to perceive my error then here I 1 find the tho legislative power expressly given as if the power mentioned in see sec 6 was again thought of and again affirmed or re enacted it has been again suggested and it may again be suggested that the words as limited ty by law implies a law then in force as aa the word limited Is in the past t tense ense enso which I 1 c 0 beede neede isn ignot atwith with force fored it would have great torce force if there had hid been any law of the united states or of the territory then in force on this subject but as there was waa none indas and as congress has haa not since passed any for this or buy any other ter tei excepted seq bee act of congress of march I 1 1867 1667 p j and as the organic act of the territory of wisconsin passed 1836 oon contained con taint d the sa bame same me w fprd ard in this thib B rs respect beet sas Tas s obrown ou rown an and d ai as congress ess neven never passed any law lawi for that territory the conclusion Is ir that congress used used ased the word limited with reference to future terri i ip it evaa hm brids the supreme court in the case of th the ins co vs canter canteri zil and in the dred scott case 19 howard pp ap 1 that Congress rin in the terri territories i orles had haa 1 1 tha he combined powers gho ghe 0 the phe depeal government and of a state rovern govern debt if so then thlen does it IV not follo foll as a 4 logical deduction deduct ion ibn that by ap seo sec 4 ofee of the organic act congress conferred on the governor and legislative assembly ahat that part of its ita power which as a state it ouid exer exercise cise ciBe Is it reasonable to suppose teat congress by declaring that the legislative power shail shall be vested etc and shall extend to aily ally all ali ri rightful hatful s ejects of legislation I 1 intended within any i arrow er or limits than the fair and reamona reasonable ble bie import of their thel r words would im imply ply any more than it kt intended to extend those thos powars powers BO as to include lef leg 1 tion on subjects properly national nation allf ought these theme words to be restrained so as to limit this power to subjects less jesa thair would itutaua ItU it utah tasa tala I 1 will look a little farther further to bec bee 9 19 la P which bic I 1 fond find when speaking concerns i ing jurisdiction a proviso that justices of the tho peace have jurisdiction of any matter in controversy where the 1 tit title leto to or pt land may be in di ll 11 dwite or where he debor or sum ea claimed a mat maa el shall exceed one hundred dollars which Is esthe the only limit limitation atlon when speaking concerning jurisdiction llon lion we find in this section and that I 1 is confined to justices of the peace bud aud and therefore has no nb re fereno ferene joany to any of the other courts if to this we apply the maxim ot of expression unita est altemus it will include in the territorial legisla 4 i tiyo tiye discretion the jurisdiction of all til the courts couta ea except justices of the peace ant aul and aut ft it will also include them with the exi exl ex 4 i 0 of f the oases cases expressly nam named ed the proviso proceeds and bays saya and the said supreme and district courts respectively shall possess chancery as well as common iv law jurisdiction jl without this clause it i would have been v to have conf conferred errede he whole territorial judicial power on the other two courts viz the justices of thel thet peace and proba probate te courts but with it thereisa there is a further I 1 limitation of discretion which is the supreme lei let courts must possess common law and chancery chan cerv ta thi this cannot be taken fram tl them sa bub but ft not notwithstanding w withstand withstanding notwithstanding not it isato be b both gohd appellate p p ell eil me and original it ilis ills Is laito to be edi eai exercised as ab it shall be limited boy toy law it has been claimed that the maxim above mentioned expresion the thing Is the exclusion of ail alt others dp apa plies in this phrase to the jurisdiction of the courts inasmuch as it expressly names district courts and does doeg not df name h m e the Pro probate blite courts and aad justices 0 of r the P leae I 1 nut proves too much as it entirely excludes justice justices loathe resides before thep in the theace ame section the power po er to limit or prescribe the tion of sil all the courts is ls expressly kiven given the naming of the supreme and dis triet gor POr tsIn this proviso sayi bayl ig theys han haK possess ess chancery as well as common law jurisdiction is to be understood der stood as I 1 hav have e before said as ex tha he power of ahel the legislative assembly to take from these two courts common law aee giving weh bho chancery a nc |