| Show opinion of chief justice mckean I 1 DELIVERED aprill 0 if 2 1873 I 1 TERRITORY OF I 1 march third district court f werm term 1873 ea joseph W has haskins maskins kins for the monts silver vermine mine enos enosa W wall et el al the plaintiff interposes a challenge to the armay array of the jury on various s grounds stat slat stated e d in writing and placed on file the defendants controvert some of those chosse grounds and demur to others othea the tha positions taken by either elther party will ivill be bp sufficiently referred to in the opinion of the court F 11 smith J and Z knowin support of the challenge cited the records of this f his court nna ana and of the fhe supreme court couri f tho the epry ory ors pry also the laws of utah p 69 sec seg 2 etc laws lalys pf af 1870 p 12 1261 1 peters C wt H hempstead J S spratt and wm win haydon in opposition cited 2 graham waterman bonnow on new now trials igo laws of utah p 68 sec see 4 1 Green Given leaf leafon oil E ev V bees sees 83 82 92 and notes sedgwick cl a statutory did and con constitutional laws bro 6 2 kents rents com corn 93 ga 1 85 93 3 biach blach stones stoned com corn 77 mckeay BICKrA xi C jit J it was held by the supreme court of the united states stites in the case ewe of clinton vs engelbrecht 13 wallace that the united states marshal for this territory was not the propel proper officer to summon a jury in a case ca like the one now at bar a case arising under the laws of file the territory ory or cognizable it is now objected that john D T mcallister baic allis aliis who mho acting as territorial marshal summoned the jury now drawn had not lawful authority to do the same it is shown that on the lath da day of may max ar 1870 the them hon oha cha s C CWi ewi NV avilon ilon llon Ison lson t then en chief justice of the Is supreme aerne bourt court of this territory afia aud and judge of this district court and while vile sitting in this court coult in an n action lie pending before him hl marid alid abid of which lie he bad jurisdiction render rendered dd a judgment ousting the said mcallister from all au authority thor ihor in this count court as such territorial mai mal marshal marshai slid and that such judgment was afterward after wa rd ami aff limed med mod by tb the ll 11 supreme suwa court of this territory and has never been reversed the office of territorial riar marshal is not provided for in the or organic g ania act 0 of the territory and the seventh section of the act provides that the governor shall nominate and by and with the advice and consent of the legislative council appoint all officers not herein heleln otherwise provided for if it were not conceded that tha assembly had a right to create such an office as is that of territorial marshal yet it that it is neither a township ja district noi nol noc nor county office and neither the assembly nor the coun council bad any right tight to billit fill it without the nomination domination odthe of the go governor vernor vernon and yet et under the provisions of chapter IX IX of bf the laws of utah p 38 the two wo houses of the legislative assembly in violation of the organic act j ignored bored the governor go vernoi vernot and usurped authority to elect and did elect mcallister the territorial marshal but buit if this office created and improperly filled by the tife asem assembly bly is vacant can it n now ow be bb filled ay iy by all ail ali an act to provide for filling va canci canei esin 8 fin certain offices inthe in the several Teril terii territories tories approved january 8 1872 congress provided that in any pr ot the territories i herpin herein A a vacancy vacancy y shall happen from resignation 0 0 or r death during the recess s of the thin legislative council in im any office which under tile the organic act of said territory r is to 0 o be filled ayap by appointment ot the governor baand with the advice and consent of the council the governor shall shail fill up sueh such e vacancy by g granting mantill a commission abic which 11 shall ba 11 ex expire afre at the end eird of the next session of the said I 1 legislative council elt eit ills Is evident that the statute does doeg not m meet act the question under con don irwill it will not do to say that because the office was improperly fillad filled by the assembly therefore there I 1 U a vacancy caused by a ripsi resi or death during the recess of the connell conn cil cli if a IL nomination had been made by the governor to the council and had been rejected by the council bouncil or if that body had adjourned without acting on the nomination whether the g governor goyer goter 0 arnor nor could then make an hn appointment to fill the vac vacancy alicy aticy ia 6 a different question from that now presented the jury now challenged was summoned ity by one who was waa elected territorial rit orial marshal without auth authority brity of law he was afterwards busted ousted from that office by a court of competent jurisdiction there has been beean a session of the legislative council since such stich judgment of ouster and no nomination for territorial marshal is shown to have baie been submitted to the tho council and the vacancy in the office was not 0 so o caused as to give the governor a right to fill it up during the recess of the council the united states marshal it is held cannot summon a jury juny to try this cause we have haven no ho lawfully appointed territorial marshal and as this court is held for a district and not for a county the sheriff cannot serve the venire see laws of utah 1870 p 26 other serious sr 1 idus nay perhaps berha s fatal points have been raised raise by tre the challenge to the array arral but they need nedd not be considered one fatal object tionda sufficient under existing 9 law or existing construe construction of law it would seem to be impossible to obtain a ri leg legal aljury jury in this ibis territory but if there are no jury july wais trials here the responsibility shall not zot even seem to rest upon this court were werd this a criminal caused cause the the tho court might inight well hesitate to proceed and depilato deprive 4 a fellow man of his lib jib liberty or his life not kot BO so with civil matten matter it is fan fat bejster dietter that litigants should llave have the opportunity to come here herd and try their cause even before beford illegal junies juries than that they should appeal to rifles pistols and vigilance committees commits barbet far fan better even though the thet verdicts rendered here should afterwards be all reversed and the judge of this court when sitti sitting rg in the supreme court of the territory will liot nop ba hes itata irate to review the tile proceedings of bf this court the same as though he be had never sat nit here it is useless to discharge this j jury u ry and order another for as the thip laws now noy stand standy and ate are now coo cco construed ns trued no jury can be obtained to wIl wll which leli some fatal objection could not be urged and experience renders render it more than probable that it will be far in the future when the much needed legislation will relieve us from the emba embarrassing r m asing dilemmas in which we find p purs ur selves elyes what in in this long interim shall shail be done dono shall the mining interests of utah bo be liable to be bel suspended by injunction and y yet qt indefinitely denied even the semblance of trial in actions of ejectment shall liti ht gants be informed by this court that they cannot have a J jury try trial here even thou though t they hey waive all technical objections a shall the courtad journ sine sma dig die diet 2 must society b be thrown n into chaos because some other departments of government neglect their duty extraordinary emergencies must be met by extraordinary measures influenced by con considerations side rations of public policy and by such considerations alone the tile court overrules the dhalle challenge to the array and sustains the demurrer Oe |
