| Show FLINT vs CLINTON defendants ATTORNEYS tle tte BEQUESTS TO CHARGE third district court for 1 the territory of utah f kate flint vs I 1 jeter clinton et al requests to charge on behalf of the defendants 1 by the common law bawdy houses housea are common nuisances they are such by the statutes statu tes of this territory and by a valid or ordinance of the gity of salt lake said laws jaws and ordinances authorize the removal and suppression of such aces by abatement A it is within the compe competence competency tene tenc of the legislature to prescribe or to authorize the common council of salt lake city to prescribe that a house 1 and personal property in it occupied and used directly in the maintenance of a bawdy house shall be forfeited or destroyed 3 the ordinance of salt lake city which has been put in evidence relating to bawdy houses is valid 4 A justice of the peace of balt bait lake city in 1872 had jurisdiction bobear to bear hear and determine complaints of the keeping of a bawdy house with a view to the punishment of the keeper thereof and abatement of the nuisance also to determine whether a house so complained of was or was not a nuisance within the meaning of said ordinance that on determining a house so complained of to bo bu a nuisance for elainee eink being a bawdy house such justice had jurisdiction to adjudge that property used directly in tiie tho maintenance ten alilce attice thereof should be destroyed as a mode of abatement ia 5 tha the proceedings against kate flint before jeter clinton as justice of the peace which have been phu pot in evidence show on the face a valid exercise of such jurisdiction under said laws and ordinance if the jury find that said clinton was then a justice of the peace of said salt lake city that by the complaint warrant of arrest arrest of said kate flint and her presence before him by means of such arrest said sald justlee justice obtained jurisdiction of the person of said kate and the subject matter of said complaint nt which was waa a jurisdiction to hear evidence and determine whether she was guilty of keeping a house of prostitution a as stated in said proceedings ce cd and what property properly should be destroyed to abate the nuisance 6 A general judgment otherwise valid that the nuisance of a bawdy house kept by the accused at a designated place be abated and aawar a warrant otherwise valid in bi like general terms to execute such judgment are a lawful judgment and warrant to authorize such acts as the jury find were reasonable ad and necessary to becom accomplish allah the breaking up of such illegal business at such place 7 if tha the jury find and that kate flint mentioned in said proceedings before said justice is the plaintiff in this action that said justice ia is defendant linton clinton C then said proceedings before said justice are evidence of the things done which are embraced in the issue being tried fried in this cause and aud said baid defendant anu ant clinton is entitled to a verdict in his favor and if the jury nind find that any of the defendants who actually took part in destroy ing her properly property were marshal deputy marshal or other officer of said city or other persan having authority officially to serve process issued by said sald justice or br surjeet to be called by such officers to aid therein the warrant issued by said eaid justice to execute his judgment in said pro ct edings was a full j justification to them for all acts done by them or either of them in pursuance of the commend of said warrant so far as shall find said acts reasonable and necessary to the abatement of the nuisance maintained by the plaintiff by keeping a bawdy house at att the place mentioned in said warrant 8 the marshal and police pollee officers of salt lake city and any persons assisting them therein by their request have authority to abate abato public nuisances in said city and are fully justified by tile the law in doing all reasonable and necessary acts to effect such abatement and can cati not be held heid liable for any incidental injury summered buffered by individuals in consequence thereof therefore if the jury find that plaintiff in this action was keeping a bawdyhouse at the time and place when andr andy where the injury complained of is alleged to have been commit committed fed fel and that the defendant sas marshal deputy mar marshai marshal or police officers of said city or in aid of them i by their request destroyed the pr property in question to abate the nuisance of said bawdyhouse then the jury must treat them as not liable for the destruct destruction lun iun of any property directly used in maintaining such nuisance nor for any acts which the ohe jury shall find were necessary and reasonable to accomplish the abatement of such nuisance 9 this action can not net te be maintained by less proof then would be required to convict the defendants odthe of the criminal mentioned in the statute referred to in the complaint that ia Is the plaintiff can not recover units unless the ilu flu iury jury ry are satisfied beyond a reasonable doubt that the defendants injured ared or destroyed her property described in the complaint wilfully and maliciously ou lly ily and a mere preponderance of evidence is not sufficient 10 the jury are not authorized to nind find the defendants or any of them guilty under the statute mentioned in the complaint or liable by virtue thereof if it the acts severally done by them were done in good faith in an honest belief that they were lawfully required bylaw by law and the warrant of said justice to do 0 said aid acts 11 the word maliciously used in the statute referred to in said complaint makes it necessary for the plaintiff to pro prove proe e that the acts complained com p bained of were done out of spite hatred oi or fil ill will against the owner of the property injured or destroyed 12 under the complaint in this action the plaintiff must prove that the injury complained of was waa done wilfully and maliciously forsbe or ashe can not recover atall at all ail that there is a presumption of innocence and unless this presumption is overcome n respect to the motive of malice mailee be beyond yonda a reasonable doubli the j jary jury wry pry should find for the defend defendants dependants an ti 13 to entitle the plaintiff in any event to recover any damages she must show by evidence what articles were destroyed or injured ared and the value of the same plaintiffs ATTORNEYS BEQUEST request TO CHARGE 1 tomake to make the act of destroying the them plaintiffs property lawful it must a appear that the warrant tinder under wh which ica the defendants 2 j justify was legally issued by a proper officer otherwise the tha acts of the tho defendants fend ants were unlawful 2 A justlee justice of the peace in 1872 had no jurisdiction to issue a writ oy ot warrant for the destruction or demolition moli tion of property or premises where the value of the tho subject matter was more than one hundred dollars and if he did so both himself and all parties engaged fri the act of destruction acted un unlawfully I 1 awfully and are liable as trespassers to the persons injured organic act ninth section 11 ll bouvier section 2369 i 3 the warra warrant n t under which the tho property was destroyed in this case by the defendants was void on its face because it was not authorized by any law or ordinance of this city chy see bee ordinance sees 45 and 9 4 public officers are presumed to know the law under which they act and if an officer executes a writ void on its face the law will presume malice and the same presumption attaches to all who aid or abet hinr bin in the unlawful act 2nd and bouvier dinst sec 2369 I 1 CHARGE OF JUDGE MCKEAN TO THE JURY gentleman of the jury july in the case in which you have been sitting BO so many days the tho counsel for the respective partie partle shaye haye have requested me in writing to chargo charge you on certain points of law or which they have supposed was law these propositions are numbered 1 2 3 sj etc by the respective counsel some ome of tho tha propositions are brief some are more extended some of these propositions contain a few lines that are correct while the other part of them is incorrect now where a proposition is expressed in say twenty lines if there are nine teen of these lines which I 1 think are right and only one line that is wrong I 1 have to refuse the whole proposition I 1 must give it as a whole or deny it as a whole if I 1 think there is one defect in ita it I 1 must deny the whole proposition I 1 may perhaps if the time aid rid admits mits explain to you why I 1 deny it as a whole or I 1 may simply say eay yes or no 0 counsel in drawing up these propositions are supposed to regard them as law and if they are la in doubt about it or if they suppose i the court erred in giving or refusing any of the Instruct instructions luns they savo eave the point and reserve the right to have it revised by a higher court I 1 am asked to say to you on the part ef of the defendants first yes gentleman I 1 say a so they are so declared to be by statute law and at common law they are declared to t be nuisances and a nuisance may be abated by bi processor proc process essof ef law more of that here t after however i second 1 there la Is a request to state io to you what it is compe competent for the legislature to Ao do it 19 is 19 not a request to say to you that the legislature has done so yes yen cesi gen tien tiem tiemen ien len it is competent tures adres whether they be state terri arri tordal or national to do a great many things which they do not see fit to do hardly any leg legislative isia isla tive body has ever exercised all the power it has I 1 say to that proposition asa as a whole yes it Is competent for the legislature to do so or to enact any other laws which would be for forthe ahe public good I 1 am not asked in jn that pr proposition to say that 1 it 1 has been so I 1 might refuse to ao say that as it involves a lecture on law counsel might ayk ask me tomy to say a tb thousand usand things to you which 1 I might refuse for the reason that I 1 am nob not trying all the cases inythe world still I 1 say yes to that pro position as a whole third eird no gentlemen I 1 cant say that that is a pretty voluminous i ordinance and there is much in it that is all right and valid and andi some things which I 1 do not believe areso abeso are so the counsel in this apropo aaion have not called my attention to any particular sentence or section but ask me to charge ai aa to the whole ordinance I 1 say vao lao no in v relation to the whole ordinance y fourth gen gentlemen tiemen tl emen a justice ot of tl the peace has luuis luris jurisdiction diction anid arid jeter Teter r clinton cllnton inton as US a 06 justice of the tile peace had the right to issue process upon any person complained of by affa da vit in the proper term ferm for keepin keepings kee pinga ii bawdy house and investigate that 7 question he had a right to p pass as sentence upon any person convicted of that of fences before him he had a right to finland nine fine and punish sueh such person he had a right within the limits of the authority vi vested sted in him to abate such nuisance but a justice of the tho peace has nob not all power ower he has but limited juris jurls diction A justice of the peace leace could not order all ail I 1 kj kinds n of an ces to be abated by ordering all the property connected therb therewith with to id be destroyed A justice of the 06 peace is an officer of inferior i jurisdiction uris diction and must act within certain ertain limits limiti s and must not go beyond thesa these limits if he does he ia Is liable for the purpose of illustrating this let ua us suppose that if some person building a house W were F ere to obstruct the street by piling his lumber or other ether material in front of his proposed ing he might go so far as to be guilty guilly of a nuisance supposing in the erection of or a nevi new building buil bull dlug diug on main street the party erecting it might haul his lumber arid lime and other material and pile letup pi it up so as to unduly obstruct the street so that teamsters could not arrive by or on the sidewalk so that pedestrians could not get along without great trouble and perhaps da danger nger a justice of the peace rn might order the parties building to the auis Auls nuisance ance anee and might r A |
