| Show jurisdiction OF PROBATE J COURTS ETC opinion of orron yron territorial attorney general CONTINUED the governor must nominate and by bar and with the tiie advice and consent of the legislative council appoint this officer of this opinion were governor H rardin hardin 91 gov shann shaff br and gov woods the other governors whatever may have been their opinion have acquiesced ced in the election I 1 am ignorant ofa of a single exception to t this is statement statements the tho cas case e of the united states vs mcallaster McAll ister lster arose in lri territory march 1870 0 the cam case was argued on two to points crl ill 1 was he th the ministerial officer of the court in cases referred deferred in the act or was that the tho duty of the U US S marshal marshai Mar shai i 2 should he be W elected or appointed J it was decided 1 against the marshal it speaks for itself I 1 I 1 heard the opinion read but I 1 have nevee seen it since so so I 1 can not furni li it I 1 herer herewith i th fl filba I 1 q a cerul cerui certified fl ed copy of all the proceeding in it which I 1 am able to nind find of record there was however i dd demurrer filed and after the judgment of may igi 16 1870 it was waa appealed to the supreme court of the territory and the supreme court affirmed tho the judgment the tha territorial MAR in a te tie district court of the third district of the territory tV of utah ulah coulty of salt zaka lake ilabe tho the united states of America on the relation of joseph ba M orr vs J D T STATEMENT ON A APPEAL be it remembered that on the day of march 1870 the relator relater filed his bis complaint in ili said court against said respondent in words and figures following to wit The United stated in the third of america district court on the relation I 1 of utah terri of tory regular jqseph joseph M 31 orr ili ISI march arell terina vs D 1870 hon J D T mcallis C C wilson ter J judge T eil III 1 I joseph lyl orr the above relator IV tor being first duly dworn upon oath say that U S grant president of the united states by virtue of the authority conferred upon him by law an on the day of september AD A D 1869 sut suspended josiah hosmer hosiner from the the office bicci or of marshal of the united states for the territory of utah until the end of the next session of the senate of the united states statis and on said day designated joseph M orr to perform the duties of such suspended officer in the meantime and on the same day dixy a commission duly issued to the said relator rehi reLi tor all of which is mom more fully shown by the exhibit hei hel cunto attached y marked A that thai afterwards but several months previous to the date hereof said relator duly qualified himself according to law jaw to enter upon the duties aforesaid by taking and subscribing the he oath a certified copy of which is is hereto attached marked exhibit B and filing the same with the clerk of the supreme court of said territory and also forwarding a certified copy of the same to the secretary of the inte ri orand also aiso by executing the bond a certified copy of which is hereunto attached and marked exhibit 0 which bond was duly recorded in the office of the secretary of said territory that by reason of the premises it became and still is th the 11 C luty duty and right of the said relator under and by virtue of the laws of the united states to execute all processes issuing out of the district and supreme courts of said territory of utah or directed by any judge thereof to do and perform all and singular the executive business of said courts and to have and enjoy all and singular the fees and emoluments of the same that one J D T mcallister as territorial marshal of utah terni Terel territory tery at the present time assumes to have the right and authority to do and performa performs per forma a portion of the aforesaid du duties tle tie s 3 d evolved devolved by reason of the prem premises ses upon the said relator and tolt toli to i have and receive the ahe fees and emoluments of the same and the said J D T McAllist mcallister cr so ass assuming such right has for forsea sev eral months last lust past within the jurisdiction of this court wrongfully unlawfully and without any legal authority executed most of the process of this court and has done and performed the executive business of the same in almost all aes cases in which the united states has not been a p party arty and has received to his own uso use almost all of the fees and emoluments pertaining to the same in violation of the rights of the raid paid relator and the said J D T mcallister still assuming said rights still continues within the jurisdiction ot this bourt court wrong full fuli fully yand and unlawfully and without adv any warrant or authority of law edw to execute most of the processes processed of this court to do and perform almost all of the executive business of the same and to receive to his own use the fees and emoluments pertaining to such service an violation of the rights of the said relator I 1 wherefore said relator prays that an Jn information formation may be filed against the said J D T mcallister according to law and that he may by the court here be required to appear and show by what whai authority he does the matters and things wove above specified the territory of utah t halt salt lake county S s I 1 joseph at orr on the aforesaid relator being first duly sworn upon oath ath says bays that the matters and things before stated and to which he h has subscribed his name aro are true true as he verily believes s signed J 0 rn sworn isborn to and subscribed bafo before re mp me this day of march maich A D 1870 IS S A MANN clerk ENDORSED dist court 3rd ard dist utah Uta bJ united states on fe relation lation of J lii ISI orr ads J D T mcallister affidavit of relator and commission filed march 1870 IS S A MANN manx clerk afterwards to wit on the day of march A D 1870 de defendant feild felid by his counsel appeared and filed with the clerk of said sald sa d court his answer which is in words ana and figures following to wit I 1 the united states 1 bachas H hemp territory of stead attorney of utah 3rd ard the united states in the territory of triet couri utah oil on the rela march term tion of joseph at 1870 hon orr vs john D T i C C afi nhi wil wll mcallister terrison marshal for judge 0 utah territory now comes the above named john D T mcallister in his own awn proper person and says he admits that his excellency U S graut grant at the time and in the manner mentioned in the relation herein filed suspended josiah hosmer from the office of marshal of the united states in ili the territory of utah as alleged and that lie he designated and commissioned the said joseph M orr to discharge the duties of that office for the time and iti in the manner set forth in the relation lati iati orl and that the said joseph orr took the oath and gave the bond required by law and did and performed all other things necessary to be performed to enable him to dis charge the duties enjoined on him by law as such united states marshal but as to the legal conclusions drawn by the united states attorney for the district of utah lie he refers the same to this honorable court without himself admitting or denying them or any of them to enable this honorable court to understand and be informed as to such legal conclusions and rights and duties of the said relator and of himself ho he herein states and informs the court that pursuant to the act entitled an act in relation to marshals and attorneys approved march ad 1852 and of the acts amendatory thereto he on the th day of january 1866 was duly elected by the joint vote of the legislative assembly of the territory of utah tilen llen in session to the office of territorial marshal and that between that day and the sath day of the same month he took the 0 oath at h and gave the bond required by law and that on the said day of jan AD 1866 his excellency chas durkle durkie then governor of utah territory issued to him a commission as such territorial marshal which oath bond and commission are now here to the court shown afterwards on th the tho 0 same day he lie entered upon the duties of said sald offee office and lie has hay continued to dise discharge harge the duties and receive the fees and emoluments appertaining to the office of territorial marshal for utah territory he further informs this hon honorable or court that on the da ily liy of february A D 1870 lle lie wase wasye elected to said offee office by the joint vote of the legis begis legislative active assembly or the territory of utah then in ili joint session and that afterward on the day of february AD 1870 70 he took the oath eath required by him before william clayton clay ton a notary public and filed the bond also required quit ed by law with wm wirl clayton auditor of public accounts and and that afterwards on day of february it in the r his excellency S A mann acting governor of utah territory issued a commission to him as su h terri marshal which Is 8 hlll still in full force and virtue ai h oath bond and corni fils fris sion sidn are liw iw here to the court shown from time until the filing tiling of this relation he be has hay discharged the executive duties of this honorable court and served the process issued by it as lie lawfully may do when this honorable court has been exercising its jurisdiction in cases not arising under the constitution and laws of the united states and when hen it has not been exercising lill lili it jurisdiction as a circuit and district court of the united states and he further says he denies th allegations in relation th athe the abe the defendant herein assumes at this time or at any other time lie he has assume assumed dj to have the right tight or authority to do and perform any portion whatever of the duties devolve ed on the relator by reason of the premises set get forth in the relation or to receive any of the fees or emoluments of the tho office of the united states marshal of the territory of utah and he denies the allegation that hey he this defendant isnow or that bo be heretofore has been in the exercise of arly any executive bebenin uty duty orthis of this Iron honorable brable court or of the supreme court of this territory or of served any process whatever which has been issued by either of sala saia acala courts br any judge th thereof emOr that could lawfully be served or the duty could lawfully ibe be discharged by bv alid relator as united states marshal marshai for utah territory and mand that he now herein disclaims and at all times heretofore he has disclaimed all night right in himself i as s uch such terri territorial t adars marshal baito balto to act as the executive officer of the no supreme or Distri district dt court when nhen suell such supreme or district court is exercising its jurisdiction as district ot or circuit court or of the united states or when wilen they are exercising the jurisdiction in cases arising under the constitution antl and laws of the united states but lie he claims as it is his right and duty to claim that by virtue virtle of the laws of the united state states and of the laws or of Utah and b by virtue of the ibe election oath bond bon bou and commission aforesaid he has the rig night right litand and it is his duty to act a as territorial marshal marshai of utah terri tory and as such to be the execl exear tive off officer both of the supreme an anel anil li district courts when such courts are not exercising their Jurls juris dic dle tion as circuit or district courts of the united states nor in cases not arising under the constitution and laws of the united states scho he herein denies that ho he now executes i or at any time heretofore he has e executed any executive duty of either of said sald courts or served any process whatever wrongfully unlawfully or without legal authority tho rity and ir if as alleged he performs performs most all of the executive aties duties of said courts and serves most all of the processes it is for the reason that by law it is his duty so to do and now having fully answered and set his warra warrn warrant varrana nt he prays to be adjudged to continue in said offee office signed jonn JOHN D T mcallister mcalli ster STEB Z attorn attorney ey general for utah territory territory of utah third Judi judicial giai gial district court sitting as a circuit court of the united states hon C C wilson chilson CW ilson lison judge the above named allister makes oath and says that he has heard the foregoing answer read knows the contents ther thereof eor and ana that so much thereof as is set sefa forth therein from his own know knowledge ledie is true and that which is therein set forth from in formation of others he be bellev believes esto 0 o be true jolin JOHN D T mcallister subscribed and sworn to before mel me this day of march 1870 IS S JAMANN clerk clear 11 endorsed the united states on sherela the reia rela tion of J M K orr vy vs johh john D T mcallaster McAll lster ister answer filed march 1870 S A MANX MANN clerk az Z SNOW skov attorney general afterwards to wit on the aith alay ay of way may A D 1870 during other proceedings or of tile court the tile fol rol lowing ap appears ars ans of record which whim la Is in words following to wit in the relation of 1 M orr it demurrer of against plaintiff J D T mcallis sustained ter jer J I 1 i afterwards to wit on may proceed proceedings ings lugs of 0 court ourt the following appears of off ree rec record ord which in words following Is to wit lu in the relation of J M 11 orri orry orr judgment of against ouster 3 D T mcallis entered ter e 0 band baud aud and ordered by the court that said sald respondent turn over within ten days to the thee relator a nil all 11 processes or other papers of this court now in his hands as well as property now in his possession by virtue of any process or order of this bourl afterwards to wit on april apell 30 36 1872 during proceeding proceedings 4 of the court the following ap appeared eared of df record which is in words following to wit tuesday april ia T 18 7 2 court met pursuant to adjournment n present hon 0 F strickland judge 1 J L high ae dept in 8 1 auy atty fra drw A ti 8 patrick k dept ep L U US S marshal J A T tp territorial i r i r giorl a I 1 marshal marshai r 1 drw oua B VV deputy deput 3 ter wm cwm S fa walker clerk Z snow terri terra attry attly general shai marshai court opened by the terru I 1 marshal whereupon the court announced that the territorial marshal and territorial attorney general would be recognized as executive officers of thi tha couri coure for all territorial business con on of bf james 1 ligh esq deputy U S attorney ordered derea that a nalle nolle prosequi pro segui bend bond hereby Is entered as to nil all indictments found by the grand jurors of this court at and since the september term 1870 thereof and that all prisoners held under such indict ments be discharged and that all ail prisoners held under preliminary examination be transferred by the united states marshal to the territorial marshal territory of utah t I 1 SS s county of salt lake J 1 I joseph joeph P F clerk of third thia judicial district court of utah util territory do hereby certify t that thap the tile foregoing is a full true and correct copy of the original complaint answer and court proceedings ings ill in the above entitled notion action on file and of record in my office SK witness my hand and 1 the seal of said courtat salt sait lis ils I 1 LS I 1 lake city this day of october A D 1 1873 jos F nounsan 0 O X al lq clerk by EDWD 13 MCKEAN deputy clerk by rorer reference enee ence to the record in the mcallister mcailster case it will be seen that marshal mcallister McAlli sier was ousted may 11 1870 the case was taken to the supreme court of the territory where in the fall of that year the judgment was affirmed before the argument in |
