| Show jurisdiction OF PROBATE COURTS ETC opinion of lyon lion Z snow territorial attorney general ATTORNEY ATToRN FY GENERALS OFFICE SALT larm LAKE CITY february ath 1874 honorable honorable orson pratt speaker of the house of representatives sir ir your communication of the ath dinst came duly to hand you say the house on the ath lust just passed the following motion 1 I move that attorney general for this tills territory be requested to furnish this house with nis hiis written opinion on the jurisdiction f ris of the probate courts of this territory and such other matters of legal jurisdiction and alleged malfeasance of certain officers char charged 9 ed by his excellency the gok Goi governor Vernor in in his special message vetoing the memorial to congress against the legislative BD body dy as encouraged by them and pra practiced practised ct ased by the various officers of the territory by this motion emotion it is at once perceived that to understand what is desired the message must be ex i his excellency the governor in his message uses tho the following language and in view of the fact that I 1 as governor required as I 1 am by the organic act and by my official oath to see that the laws shall be faithfully executed 3 have been continuously confronted with open violations of the laws of congress without the ability to enforce obedience thereto because of defective and inimical legislation and have as duty required represented the facts to federal authorities and to the legislative le assembly of the territory to ask or expect me to join you in condemning my own official acts by pronouncing them absolutely untrue and mado ma dewith with malicious intent is a sad commentary upon the judgment and good taste of those who ask it that I 1 cannot do so is certain the charge that there exists insubordination and other viola lations of the constitution and laws of tho tha united states in it this territory is true or false let the facts be submitted all will agree that the finai final object of the govern overn ment is the protection of tie the citizen in i n his rj rights ats IT that hat the laws of this tins territory as they now stand are inadequate to accomplish that end cannot be denied there has not been a jury im panelled panel led in this territory for more than three years whose verdict would have been valid nor uon can there be under the laws now in in force such are the decisions of br the district and supreme courts of the territory and such therefore is the law life liberty and property are at the mercy of the lawless and dishonest without the possibility of protection you have been called upon to furnish the remedy the power to do so is in our hands if we do not give the needed legislation congress must or anarchy will ensue again in the ath section of the act organizing the territory congress gave to the governor the power by and with the advice and consent of the legislative council to appoint all officers above the grade of county officers 1 in more 2 77 gard of the rights thus hirthe governor the legislative assembly by enactment have usurped that power by making all such officers elective by tho the joint vote of the two houses of that body independent of the tho governor that this usurpation has caused much of the existing difficulty and confusion cannot bo be questioned in my message to the til legislative assembly at its last session I 1 called special attention to these obnoxious statutes asking their repeal and nd the enactment of laws upon that subject which would bo be in conformity with tho organic act but my recommendations went for naught and the persons thus illegally elected including all of the territorial officers were continued and are now in office in effect obstructing ting the administration offus of justice and preventing the correction of eki eil existing sting evils again it has been repeatedly held by the district courts and affirmed by the supreme court of the territory that the probate courts under the organic act have no equity or criminal jurisdiction and yet in contempt of such decision the probate courts throughout tile the territory exercise a jurisdiction concurrent with the district courts determining questions in equity issuing writs of habeas corpus in some instances discharging persons held by the district courts for felonies noab il lable and im panelling nellin t grand juries and putting persons dersons upon trial for liberty and life again in 1862 1802 the congress of the tho united states enacted a lay law lav making plural marriage a crime and yet it cannot be denied that plural marriage is now practiced to a great extent in this territory in direct violation or of that law it is not sufficient clent elent to say that the tho law is unconstitutional the supreme court of the united states has not so decided until that is doneit is the law of the land and should be obeyed lin in cin my message t to the legislative tj ve assembly at its session in 1872 I 1 called attention to tho tile violations of this act and urged the enactment of a law prohibiting it in the tile fu future tu re E but u t I 1 regret to say nothing was done can we in truth state that no law of the united united states is violated in utah or ask congress to investigate aud inquire into the truth of that which no fone one denies I 1 can not again it is well known that a large number of homicides have been committed in this territory and in many instances no attempt to bring the persons charged with such crime crimes to trial has been made indeed such are the defects of tile the laws lawa that no legal conviction can be had from this and from the motion I 1 am to give a written opinion or fall fail to comply with the request it appears to me opinion I 1 have or may give is 18 only extra official as neither his E excellency xcell ency nor tho the courts nor the legislature are bound by iland it and muo muc much less is congress notwithstanding this I 1 deem it a duty to say that during my short official career as attorney general I 1 have as often as required expressed opinions on le legislative judicial U dacial and executive power tho the i harmonious harmonious working of all which is essential to good order in in I 1 any government but before entering bu brn the subject of my views as to the jurisdiction of the probate 0 courts in civil and criminal cases and the subject of the election and appointment of officers for the territory I 1 will lay down a few rules which commend themselves to me F dinst birst an act of the legislative department within its legislative powers is absolute it is is the law and all within its provisions are bound by it but it maybe may be ambiguous uncertain and difficult to understand by reason of accident or omission it then has to be construed or interpreted if it is not within their leg legislative alsia gisla tive powers the act is void SECOND thea judgment of ofa a court of original jurisdiction in a case when it has jurisdiction of the subject matter of the suit and of the person is the law of that case however erroneous unless on appeal or writ of error it be reversed but it does not establish a principle timid the judgment of a supreme court that being a court of last resort is conclusive it is binding on all it is equally as binding on the governor and president and the legislature as on individuals and other t otist 5 it setti settles s that case anait and it also settles the principles upon which future analogous cases are to bo be g governed over ned until the law be changed or the case overruled FOURTH the act of the president 1 or the governor in his gubernatorial nat orial authority and within his lawful rowers powers pow bow erm cre is also binding on all by a little reflection it will be perceived ercel ved that it may sometimes happen appen that powers conflict particularly ticul arly among legislative departments like ilke congress and the states and territories and their statutes seemingly conflict these involve very intricate questions whenever they are met they must be solved and a conflict of views will always arise denoting as I 1 think healthy action on a correct under understanding stan ding of these three powers depends the solution of this entire matter whenever either of these three branches of government whether through error of judgment or by accident or by design paralyzes any other branch a jar in the machinery ensues the opinions I 1 entertain on these subjects being the right of electia electing or appointing officers and the rig right t to confer on the probate courts civil and criminal criminal jurisdiction have long since been expressed and given to the public which remain unchanged no recent argument has thrown any light on the subject his excellency the governor in his message on this point has not even indicated an opinion much less expressed it his language is it has been repeatedly held bythe by the district courts and affirmed by the supreme court of the territory that the probate courts under the organic act have no equity or criminal jurisdiction and yet etc whoever examines the otil section of that act will find that the organic act does not attempt to create or give jurisdiction of any kind to the probate courts but only authorizes th orizes their creation by the territorial rit orial government and authorizes their jurisdiction to be conferred the la language 11 1 u age of the act jn in section 6 is the legislative power of saia sala said sald territory shall extend to all ail rightful subjects of legislation consistent with the constitution of the thel united states and with this act then follow a few inhibit none nond on the subject of the jurisdiction of the court in section 9 before referred to tho the language is the jurisdiction of the several courts herein provided for meaning the supreme district and probate courts and justices of the peace both appellate and original and that of the probate courts and justices of the peace shall shail be as limited by law at that time there was no provision in any law of congress noi is there thero yet any provision applicable tp tile tho jurisdiction of the probate courts in this territory the inference therefore is irresistible that the words limited by law deanta meant a law of the territory the act of utah creating the probate courts and prescribing their jurisdiction was approved february ath 1852 and is ia as follows t sim SEC six 1 2 3 3 1 there there shall shail be a judge of probate in each county awitin within the territory whose jurisdiction within his court in all cases asery rt arises rises I 1 within their theli respective counties under the laws of the territory said judge bo be elected by the joint vote of the legislative assembly and commissioned by the governor they shall hold their offices for the term of one year aud until their successors soM are elected and qualified led they shall bo be qualified and I 1 d sworn by any person authorized to admirl administer ister lster oaths and give bonds and hild security ty in the sum of not less than ten thousand dollars to be bb approved by the tile auditor of public accounts and tile the auditor shall give th the eperson person filing bonds a certificate that such bond jia has been approved by him and filed in hiis h is I 1 office lc Tho the jurisdiction is thus defined see SEC 27 the tho jud judge jude e of probate has jurisdiction of tle tio the probate of wills the administration of the estates of deceased pem pen persons oll oil and of the guardianship of ini minora nors idiots and insane persons SEC 28 the probate records si laii be kept in books separate from those of the other business of tile the court 9 SEC 2 29 rhe the phe several probate courts la their counties have power to exercise original jurisdiction both civil and criminal andas and as well in it chancery asat as at common conlaw law when not prohibited by legislative enactment and they shall be governed in all respects by the same general rules and regulations as regards practice us as the district courts the act also provides for a sheriff a clerk a seal of court and the keeping of a records record also for grand and petit j junies juries urle uric giving them all the common law requisites of a of record ecord Ji with appeals to the district courts by tills this your honors will see seo that the jurisdiction of tho the probate courts depends not on the organic act but in the laws of utah passed pursuant to the authority therein given and the only questions are did the legislature of utah in 1852 exceed its legislative power in in conferring law and equity e jurisdiction on these thike courts court 8 or has congress given this jurisdiction by authorizing tile the legislature latu re to confer it under the maxim of law that what one does by another ho he does by himself or has congress by not disapproving C the act affirmed it these all are principles entering into the solution of the proposition in n relation to them the hon john titus in the case ease ng FInst salt lake city in 1665 1865 said the power reserved in congress by itself to disapprove devolves upon that body the duty of revising the tiie legislative acts of utah and the presumption as cited is that this duty is performed congress therefore not having disapproved must be presumed to have approved the act this was decided concerning an act which had been passed only about six years the act on the subject of the probate court jurisdiction was passed twenty two years ago and congress has not yet disapproved it the supreme court of the united states in the case of the nii miners ners bank vs iowa 12 howe ap pp 4 8 expressly sanctioned the doctrine bhatla territorial cawwa law was 9 valid unil til or unless disapproved by congress the court was unanimous in the decision the supreme court of the united states in the case of clinton vs englebrecht leng JEng lebrecht from this territory 13 wall pp ap 6 unanimously ni said the chief justice speaking for the whole court it is insisted however that the jury law of utah is defective in two particulars first that it requires the jury aist to be selected by the county court upon which the organic law did not permit authority for that purpose to be conferred second that it requires the jury to be summoned by the territorial marshal who was elected by the legislature and not appointed bythe by the governor we vo do not see how these facts fact if truly alleged would make the mode actually adopted for summoning the jury in tills this case legal but we will examine the objections adli adil f 1 n the first place we observe that the law jaw ilas has received the implied sance n of congress it was adopted ill in IL za 11 tills tilis tills probate law you remember w as adopted in 1852 1832 it has been een upon the statute book bormore for more than twelve years 19 sy 19 the probate jurisdiction law has been on nn the statute for mome more o than twenty years yeam it must have havo lavo aavo be been en transmitted to congress soon after it was enacted for it was the duty of the tim secretary of the territory to tra transmit urmit to that bod body y copies of all laws on or before the of december in each eacil year the simple simpie disapproval by congress at any am time would have annulled it it t is is no unreasonable inference therefore that it was approved by congress true this language was used concerning the iury jury ury law but it is equally applicable to iho the law creating abing the probate courts and fixing and setting bounds to their jurisdiction ris diction the supreme court in that case examined ried tied the jury law of utah and it valid how then stands so much of this matter as relates to the validity of the jury law in the courts first the governor and legislative assembly of utah in 1859 in construing their legislative powers passed tile the act which irl ilch lich was acted upon from that time till 1870 by every |
