| Show preliminary examination of warden bickwood rock Hock wood wooi and marshal arshal BI mcallister As stated in yeater yesterday dayts dayos NEWS the preliminary examination beford before associate justice hawley of the case of warden A F P Boek wood and city marshal NI mcallister cAllister charged with resisting the U B S marshal in the discharge of his duty in refusing to deliver to lle tle lie latter the convict Kill kiil killfoile toyle foyle ie wit without holit aru pru an order of court was commenced yesterday judge morgan and mr Bas babkin baskin kiil kill were the counsel oia on the ilie part of the prosecution and HonorA blesZ biesz snow thomas fitch and forth forthia defense I 1 f 1 most ot of the I 1 nom bom ten to iti cy twelve was 6 occupied ceu oed oled pled b bythe prosecution theon the only lk facts elicited being made a demand on warden IS and latterly upon mr wr mcallister for the 1 p prisoner prisoner th the 6 former refugia refusing 1 to accede to the demand without an d order of coa cou court urt anu the tho latter refusing until an order af warden rockwood rock bock wood was presented for ham he be beld held ibb the prisoner all ont rif which wis vis wab was conceded by the defede defense judge morgan 1 alluded I 1 ingi ng authorities 0 aa the che babis basis for a e cori 0 vict viet diction tion ton i the act of cong conk congress ess of january lotti lotu 1871 act oruo of or ua congress 5 n kress gress A april pili pill in section act of f v egrets d d 10 opi I 1 1831 chap 29 section au U S statutes at large narge act of congress may M 1870 section uon von 11 pa page 9 e laws of 2nd and session and section 93 page 58 68 laws of utah I 1 the be court adjourned at 12 and m met t agai agal against nab nat two when thearg ment was opened by r judge morgan I 1 will say by way of df preliminary that 03 as as 03 an attorney I 1 have been called on in this case to see that the laws are vindicated a duty devolving upon me as an officer of court and not nov only to see that the laws are vindicated eat d but that the individuals in the case have a just ajust and proper trial these are the duties of an attorney whenever called upon to act in a case us as I 1 am in this one now i I 1 call the attention of the court not only only to the laws of the united states but also to the law of the territory and whenever a law is violated by an officer by any one holding a position of authority in which be he bauld bean be example before the people it is 12 worse than if he had bad been a more humble bumble humble individual in this case if there has hag been any violation of the law and the testimony shows that these parties charged have been guilty of this thid violation then it becomes the duty of the court to administer the law however unpleasant it m may ay be and no matter who are the parties coming before your honor here is the law which I 1 will read in the statutes of this territory and if it is found that these men haye violated that law they are amenable to it as if they had violated any other law or any law of the united states counsel read section 93 page 58 laws of utah gent G n t emen eme n no doubt wll wil take the position oel t ic t hat that this officer resisted here is audited timatea officer in the execution of his duties as a united states officer and that they are bot hot amenable but he ian isn office officer rot of court couf t a territorial as aa dif eif weir well iba lda as a united states officer and if any person dball resist him as an officer of luit bult buit in ilithe the exeda t tr tian of ht Y duk daf F I 1 X kp por pot i blino therl their then they alq abe ar am amenable e fi abiel to the iam ism law lam counsel read front froid f the ife lie law of april 30 W 1790 with regard to ina resisting officer Grent gentlemen lemen may complain aln because we e refer to beveral several statutes and do not 0 confine I 1 I 1 Q I 1 ourselves particularly to any on C of them I 1 will bay say to the gentlemen i bat b at a party may be guilty of fences of agal agai against hist fist the laws of a S state tate and against the laws lawa of the united sta states for instance A man may maybe be guilty of robbing the mail when his offee offense offence is uly not t only oue one against the laws of states the state law for larceny Jar ceny in ih taking money that may be 66 in id the mail or in the cabe case of a eunicy municipal at t cor corporation 1 ra tiona tlona a person may be amenably bettt both to 0 a state and a municipality under derthd the license law and be guilty of two i of fences in the same act either of which mayi be charged against him and he bb bp punished lidd for either or both after afie reading the law agafon counsel sa sad bad it will be contended probably that we have not shown sufficient authority in this person the plaintiff lo 10 entitle entill e him to what the law would esteem a protection in other words to make thas abie able to the law for it ls id 14 admittedly the counsel for the defendants tha thab he ia Is the Me marshal manbhai irshal for this territory we find there was a warden appointed un derand by virtue of the law of this territory by the act odthe of the legislature indirect in direct violation of the organic act which specifies fles fleg that all officers of that grade are by and with the consent of the legislature to be appointed by the governor and to tor receive their commission here a legislature has taken the power into its own hands and said ire will ignore part of the authority of the united sames states antl and exercise thia this power within ourselves they refuse to recognize the executive or at least his nominating power powen and and they proceed to nominate a man in violation of the organic act now the question Is isis is that man under any circumstances an ad officer to have control of the prison suppose pose a man appointed by tha the governor should demand possession of ithe t hb although though not con armed ormed by t the he house housa oy by the council who WO would U id bavel have right to take johess possession on of thad that property could the legislature take uke daway it away from the executive or br would the executive power be paramount r if the ex executive cutia liwer uey bey i greatest intha lathis 8 territory t A ha ja beihl fiak an dil officer 0 the t zun mun united ded states and having within h himself tho ta power to administer and abed to bee see that gib laws of the territory are administered would not rhe the th pow power ei lexer diere d behim be pe paramount I 1 contend that it would phd pod that there the legislative control cel cei ceases ases andia ana and if the to violate or ok go the organic act they undertake to ove override over kide alde ride the gin ern ment meat jentof of the united states toi extent in other words they sen sek aside the power of the tho government of the united orned states in a territory gry dry where we hig are only in a condition of tutelage I 1 know that my friend snow dalma daima a sovereignty lor for the people of 0 this te territory but I 1 disagree with him in that particular and maintain that a territory holds the same relation fo to the U united n cited state states a government that a municipal corporation holds to liia the state government such powers as may lie he conferred upon a municipal goveia ment they may exercise and add they at ale aie protected by the them state therein 7 now berease ber here eare are arb certain powers confer 1 red upon the people of thib thia territory which the united states government say may be exercised but in nothing in conflict with the laws of the united stater slater or the organic act which oon confers these powers the people now if there be a reserved power in that organic api agi athen achen 4 the people af this territory exercise that power such T r the court holds and sudia bubin believe tabe tue arp per construction tab ot aven to th elay blay a and to the extent either power and authority acquired und under er the ge general gemeril government ern ment this being the case the tho legislature egi egl slature of this territory has at tempted to exercise an am authority that is not conferred upon it it is without law au and aud id without walthou jug jus justification bi bation Gation another point suppose that t thib thia aib ala officer the territorial warden Warde ii had bad been regularly nominated and had entered upon the duties of his office that he had proceeded roce eded in conformity to the law and had complied with every requisition of the law lawi and that the power co to appoint him was actually possessed by the legislature and in the we exercise of that power they had put hinl hini in this position then what he would continue to exercise that power up to the time when the united states should interpose an authority greater counsel read from the reconstruction act of lot january loth 1871 now we will begin with the con conflict filet illet of right the warden of the prisons we we will suppose is properly and lawfully there and that the united states enact a law that the prison shall pass into the hands and into the keeping of the united states marshal of lof the territory in conformity to the instructional dional rules and regulation of the attorney general of the united states and here I 1 will refer the court to the tact fact that the tha marshal had instructions to take possess possession lonor of this prison as the property roper tV of bf the thia united states bud and hud accord according hig to the evidence that he had possession e in august he 11 is further instructed to make arrangements range ments if a any ny ard are are necessary with the governor br or proper authorities of olf the torri terri Territory joryo to take tase and keep kepp the ners belon belonging 9 gitig to the territory in tha that thai frisoni under an agreement en terpe into 11 between the government or united states statts authorities the attorney general acting in thi this capacity as the rightful agent of the government an agreement ment is made between betwee 4 these two wo parties and that agreement is ratified on the part al 0 the Rovern government ment now the question isherw is where is this authority lodged forgiving for giving over to the marshal Marsh idof of the united states for this territory the custody of these prisoners there la Is nothing in the statute thadde that thai defines where it is lod iod lodged ed the statue simply gives to the war warden iwen the tho control of the prito prisoners ners and provides what his duties shall be nothing is said in the law with reference to this change nothing of the kind was anticipated by tiie the legislature but there ia is a change created by the superior power of the united states government and it wll will not be contended I 1 apprehend that the inferior 1 power powen can control the superior I 1 apt whenever a law aft s passed by congress conflicting with jhb he law ofa law of a territory ayat at onca gives way and the ladof is immediately in farce 86 bu so 86 then this law layr being in force foree f the Govern governor dr T who is 1 the executive tive live boffl officer eer of the merri verri territory who business it is to see that the laws are properly administered f has the right to deal with the government of the united states in the abs absence elice brice of any ex express law th tho the ivard warden an could dould not mot have the power foy for his dutle dutie sare bare atie strictly by laz taz law and h among M lis his its are none nune sd sueh such chas as the one we havo have referred to certainly ii jt cannot bettne directors arthe athe prison who have faid power to ta do it where is this ger Ser W ro 0 lodged bd e d if it n not 0 t in the governor rbra he is the tho uly lly only onix pirson person thab that oad oan oan can contract ath ith with the bhe government of bif united states alid and ai la Is his duty daty to do it we find the marshal marshai in itt possession of the prison raaon rison by dired direction tion of the un united cited tate kom gom government umen and he contracts with the ithe governor to keep territorial convicts there thera in what whai manner mannen they are to abd at what expense to the territory and arid oflus chiat thiat the governor is they who has the power to maker thi thib contract cont rapt and enforce the 1 law lav bavli 1 li bhail shall the marshai marshal a do he hab has authority to act not nob coming from the inferior but directly from the supe fiur power there is a law here your hondr honor that I 1 will lii ili read redd showing that thai if be he did not do mertain certain things what the penalty would world be counsel read from abet act 1860 vol 12 page 69 gg thatis that is fon for an afi of flence flance of omission as well as commission sion bion awili be bald said that bedad he had bad iio ilo no right tn in Ws bis position to act as he be did let net ina see when an officer is required 0 to o do a certain thing and an orden orr court has once gone out which dasheen sheen ha delivered to him or to his ajr predecessor debes it matter matters not noi whether J wa j i aider lider belo beio the hands hird person it must be executed for I 1 iu lita vitality yand and power continue i J the nou not ean controvert that position now here liere id iel a I 1 martial in ta tei tej M possession POs elsion of A I 1 prisoner boriess ehas been Arr antof anhof of co in m iiga baich js Is bedore before your honor that a rant of i was in the hands handa of a party who perhaps was properly there at any rate her was waa there exercising the power powen po functions of an hu officer now if the thal that caperson upon another n othel manthei pow elswith Vs wit h which he was clothed that afian man must 1 the thu dutle duties a of ot the office thus conferred upon him hima he ia is clothed with the power and mad authority of the other ather and must exercise them amenable to td the law for any omission he is guilty of afina ehte man mr brockw rock Bock woody iod dod cla cia claiming to hare been men the warden Wardeh of bf the prison sort and aud a nd we come to a point where there th ere qua laau laiu oon gor goe conflict bek bet between reen veen ibi jowls of tha terri terra officers and oud the powers powen of the government on officers leers iders the solm former claim tha that t by virtue of the powers corf cort conferred erred by the legislature they am are properly in possess possession fon of the prison and the prison prisoners ers if ther they misapprehend the law ana and offend against the law it the law presumes that every maan man shall understand it and if they take a position in co conflict liffiCk with the law tand band nd viol violate ate it whatever thein their intention may be it is isbone none th the eless less lebs a crime and all people should understand that whenever there is a criminal statute ignorance of that statute fa Is no I 1 defense NeverthelesS i there can be no ques question tion as to the intent lw ini the tho roase cage there is no excuse set up onlie on he part of the defendants 1 counsel that they have acted ignorantly of oi unintentionally have acted aced with a full tuil unde under r that if they are wrong they are arvan amenable abla to the law jaw and with the positive tia tie belief that they are right this being the case they haye have c certainly artal hiis fily by he evidence put themselves elves la in direct violation to the law of the united State gas sas well weil aa va to the laws of the ter TOP powe jart lii arld arid and I 1 catl call your sour attention onoe once t more wore jicie fo fa this fact that the process proceed af few lew jaw under consideration la Is actually ii tho marshal marshai mar shai he being the fue proper pe person rat rai in to td have iho pho custody t f a altbuch all ali 1140 such Buch eix CIA areli areis as well aa as the ous custody 9 af pf r laanum |
