| Show jurisdiction OF PROBATE COURTS ETC I 1 opinion ofelon of lion yron Z snow territorial attorney general CONCLUDED the second cause for the challenge was because the jurors had not been summoned by the tho theu U S marshal marshai the judge go said that in the early days of the territory when brigham young was governor and judge sno w V was on the bench theu 1 S marshal served all processes from the district courts and for fon one and a bair balf years sears McKean lie ordered the clerk of his big court to issue venires kenires for juries to the united states marshal his associates did the same in their districts and in doing so they followed theeb the example of their predecessors under tho the acts of congress the clerk was forbidden to issue a venire until ordered by the judge he formerly acted under the laws of congress in the englebrecht case the supreme reme court of the united states E had bad ad decided that the united states marshal was not the proper officer to sum non a jury to try cases arising under the laws of the territory ind he mckean humbly bowed bowed to the decision but the supreme court had not overruled the deci x ousting mcallister meal lister llster from the office of territorial marshal while the englebrecht decision said it was not lawful for the united states marshal to summon juries it ft did not say that mcallister was the proper person to do so the supreme court had bad held hold that the acts of congress did not gove govern rn tile the courts of the territories but that the laws of the territories governed the courts since that decision he had obeyed it strictly had not ordered the clerk to isue issue a venire venire for the law compels him to do that the judge had apportioned juries to six the territorial law gave him that power but further than that he had not interfered in the matter mattei efforts had been made to induce him to again act under the laws of congress 3 but he had always refused tile the law said that the clerk should issue the venire to the territorial marshai marshal and if mcallister was that officer the clerk had done ills his duty anyhow the clerk could not issue it to the tile U S marshal it looked to the judge very muchas much as if tile the legislature haldone had done ablit all alt it could to oust the U S marshal members of tile tiie bar might say affairs were in a vexing dilemma but they could not bo be helped the courts were not the legislatures he next went to the third point of the challenge that the jurors were wele welo not summoned by any officer but by a private citizen efin if in de elding the englebrecht case tile the supreme court had gone further and said that mcallister was the proper person to serve processes in the district court then the difficulty would have keen been been sett bett settled fettled led but the judge did not understand that the decision said that mcallister was the proper officer many were of the opinion that mcallister was nota not a legal officer for two reasons first that the legislature had no right to create the office and second after creating it it could not be filled except on the nomination of the gov governor erbon erbor while lie was was wag now of the opinion that he had llad been wrong in in holding that the legislature had not the right to create the office lie was also of the opinion that had the case of on off vs mcallister been carried to the supreme court odthe of the united states that tribunal would have held heid that the office of territorial marshal marshai must be filled by tile the nomination buthe of the tho governor he would be glad it if lie could hold one term of court without having such vexed questions to pass upon upun but ho he supposed it could not be so he sometimes erred in ills his judgments but he was consoled by the tile fact that in states where tile the judges were learned lear in the law and where almost everything was done by precedent errors were sometimes committed A grand jury ina inn in a territory had a twofold two fold duty to perform to investigate crimes against the laws ot of the territory and also those against the united states he could conceive of a case where tile tiie jury would be illegal for the united states and legal for the tile territory mr cary had llad challenged on behalf of the united states and not for the territory tile the jury might t be held hold to against the territory but no sooner booner would an indictment abe be presented than the attorney for the thiu indicted party parts if he did his duty would challenge the array of and raise the same questions raised by mr air cary he felt differently when it came to the question of the life or liberty of a person than ho he did on the trial of a civil case if the gentlemen were willing to raise no objections to a petit jury and were willing to have their suits tried by twelve men he would not object but in regard to the grand jury her he felt he would not be doing his bis duty if he did not discharge it he would therefore sustain the challenge and say to the tho jurors you are discharged I 1 judge snow informed the jurors that the territorial marshal would pay them for expenses in coming from and returning to their homes time was given him to examine into the subject and to conclude whether lie he would appeal from tile the decision of the court in discharging thea the jurors brors or not court adjourned till wednesday morning at ten 1 A grand jury was called in the second judicial district in june 1873 and in the first judicial judici a district in the fall and winter of the same year in each indictments were found one man is in the penitentiary and sentenced for thirty years t sentenced on the indictment so found others are yet pending I 1 therefore think I 1 ought to be excused from expressing a more definite opinion in my judgment it isa is a rightful subject of legislation in this territory to limit fix and set reasonable bounds to judicial authority in this territory and regulate tile the mode of procedure both at law and in equity including the mode and manner of appeals from one court to another and to provide officers either by election or appointment if the supreme court of the united states shall rule agai ngai against nattlie tile civil and criminal jurisdiction or of the probate courts then our co code dewill will need modifying so as to permit appeals from justices of the peace to the district courts As to the act of C congress angress referred to I 1 have only to add that no act of any state stale or territory is necessary in aid of an act of congress every statute af a state or of a territory in aid of an act of congress or to hinder or delay its operation Is ia unconstitutional and void but this remark is not designed to apply to a statute that only incidentally effects it As to crimes that go unpunished I 1 have to say if the probate courts have not criminal jurisdiction and if the territorial government can not confer it and if tho the district courts set aside boffl onnic ers of the law may be excused if crea cres crimes goes oes unpunished As g there ere is a difference of opinion about the election and appointment of certain officers and as is I 1 have formed an opinion for myself I 1 will proceed to present it the seventh section of the organic act as above quoted is ambiguous in its terms and for that reason admits of construction or interpretation the act as a whole ewas was designed to prepare for a state to be admitted te into the union aud and therefore should at all ali times be construed with reference to that on object act it gave full powers of legislation subject to only a few inhibitions and subject to the tho supremacy of the united states to be exercised by a disapproval of the laws enacted it provided for a governor a secretary three judges jud es au an attorney and a marshal of ne the united states for fora a legislative department ail all and for a delegate in kon uon congress longress gress with wit such an act let lct tet for such an object it it is easily to be perceived that many officers were to be provided for not therein named hence the seve seventh nth section of the act was introduced the first clause of this section includes in terms all township district and county officers and these by the express language a u guage d may bo be elected or appointed appo anpo ined as may be provided by law the next clause includes all officers not provided for and these shall be nominated and by and with the advice and consent odthe of the council appointed heme here it will be seen by the words all q officers is included the township county and district off omm meers officers which which are in the first clause therefore there must be some implied in exceptions to the last clause those who maintain that the tile governor must nominate are forced to introduce in this clause the words with the exception of township district and county off omm meers officers so as to make the language of the tile last clause read thus and with the exception of town township district and county officer officers 8 the governor shall nominate and ana by and with the advice and consent of the legislative council appoint all officers not herein otherwise provided for or they must introduce other equivalent words in the same or some other part of the section this exception cep tion however is not in ibe ibn statute in terms if there nt it all it is implied sti still if these words were in the terms of the section it would not render the statute unambiguous As there is not any legal unambiguous definition of the word distri district dt which is included in the first clause with their construction st it would have to be introduced trod in the exception of the last clause I 1 have before said the section requires a construction or interpretation so those who maintain that the off omm meers officers may be appointed or elected are necessarily forced to fla fia nind find iid tid a solution of the question I 1 they claim that as the questions arising out of it are of a political nature involving the poi pol poe por e ennor of the territory it is one properly rj submitted to the political ban branch cg of the government which is the Gover governor norand and legislative Am assembly embly and that as some exceptions or words are implied and must be so implied it is their right to supply this omission the section may bo be read with equal plausibility as follows that all township district and county not herein otherwise provi provided for shall be appointed or elected as the case may be in such manner manneh as shall be provided by the governor and legislative assembly the governor shall shail nominate and by and with the advice and consent sent of the legislative council appoint all ali officers not herein otherwise provided for which by bylaw lata latu are required to be tius thus t ug appointed arp app or equivalent word words in some other part of the Leec section election tion one of these thebe im implied plied piled clauses clause will restrict legislative power the other does not bri enlarge large largo it but if it did it harmonizes with the tile rules of construction i I 1 I 1 I 1 in eon con construing the tho powers of congress under tg the constitution of the united states the rule is as these powers are nil all delegated none is given except what is expressed and what is necessarily implied in what is expressed in construing state legislative powers under u their c institutions institutions every power is held to bo be given except theao those expressly prohibited or necessarily implied prohibition in fil what is expressed afi if I 1 am correct in holding to the same rule in a territory as in a state the legislative power is over this subject because not prohibited this view harmonizes with the language of section 6 latter clause ali ail all laws passed by the legislative assembly and the governor shall be submitted to the congress of the united states and it if disapproved shall be null and of no effect this clause is equal to saying shall be effectual if not disapproved it also harmonizes with the tho opinion of the supreme court of the united states in the clinton and engelbrecht case and in my cap cn cne c again I 1 have said it is albig tous ious in that the section contains tile the word dettrict district ct in connection with the words township and county off omm meers officers townsil township ill liy and county are words well unde understood r t embracing subdivisions of it a state or of a territory but the word district as the law now stands has no definite signification so I 1 will examine its meaning wharton defines I 1 dla dis diA district triet to bo be a circuit within which a per person peron on may be compelled to appear appeal 21 wha Wh whartons artons rt ons L D p 29 D this then may be the whole territory or a certain part less than the whole bouvier says sass it is a certain portion of the country separated the rest for some special pui purpose I 1 bouvier L D p this makes it less than the whole with an ail extent to be defined by law it may be a count county ya a city a township a school or an election district burrill is more lengthy he says it 15 ls is derived from the latin worl word wora district district oi from dest ringer signifying to d distrain is tra tn la law w frene french ii distresses di from to distrain in lit old law a circuit or territory within which the power of di straining or other coercive authority might be exercised I 1 burrells Bur rills L D burrill proceeds ceede and says in modern law a portion of territory as of a state cout county ity city or town defined by bv lawi law within which a certain jurisdiction or authority maybe may be exercised a civil divis divit lon ion of a state or county for judicial or other purposes any limited extent of territory by successive extensions of meaning this thia word has gradually lost its original and peculiar signification and is now constantly used in ordinary language to denote ang any extent of territory for any purpose webster mee seq see this word in websters unabridged dictionary after giving its as burrill says all that space within which the ord lord has the power of coercing and punishing A defined portion of ef a state or city for fon legislative judicial fiscal er elective purposes any portion of territory of undefined extent a region a country YI with these definitions then it may baand be and for some pur purposes poses posea it is 18 the whole territory as for instance the election of it delegate to congress the exercise of gubernatorial or legislative power the exercise of judicial power by the supreme court for other purposes it is a subdivision of the territory as for instance the election of members to the legislative assembly the exercise of judicial power by the district courts and the probate courts then follow the county courts in their sphere of action and soon buffone but bul none are districts until defined by law when therefore any law is passed by the governor and legislative assembly defining a district whether that be the whole territory or a sub divis ion of it it becomes a district within tho the meaning ot of that wo word adi and by the express Jan language guage used the of fibers officers may be elected or appointed as the jaw rany may provide how then stands this question in 1852 the governor and legislative assembly passed a law providing for an attorney general and a marshal to be elected by the joint vote of both houses under this law these officers have been elected from that thit time till the present and until about 1862 or 1863 no governor ra raised ased an objection then one raised the objection but the legislative assembly stood firm from that time till 1870 it was acquiesced in by the govel Gotel governors mors each of whom had the same but no more adre legal authority than those who have since presided in 1870 the courts here ruled against this |
