| Show opinion of judge boreman stares STATES OF op co territory of utah iii in the tile matter mattei of the application of joha johw 0 neill nelli for discharge upon a writ of habeas corpus from imprisonment in the territorial penitentiary tent lary iary IV NV woods E esq q for tho the pet petitioner judge Z snow for the territory rito TZ the oneil 0 Neill was at the june term 1872 of bf the probate court of tooele thoele county in this T territory iri irl tory convicted of the crime of t assault and battery with in ent to kill and rob and thereupon said probate court coure at that term sentenced him to bo be imprisoned for v a period of three years from june 1872 11 1 1 he has been confined in the territorial penitentiary from that date until the present time and now ho he asks to be discharged alleging that lie ile ia is eon icon confined and restrained of his liberty illegally the first question which presents itself and one which must be set tied before be forea judge or court can proceed to examine the other points involved in such cases is did the probate court possess criminal jurisdiction ris to hear and determine such a case the territorial legislative enactments are broad and specific recognizing in the probate courts original criminal cri erl mindl mindi jurisdiction did then the legislature and governor possess the legal authority to pass such an act conferring upon the probate courts criminal jurisdiction b it is a well recognized truth admitted in this case and I 1 presume in every case that tile the legislature is invested with only such suon authority as ia is granted by congress it is not contended that there is any aby other source of power the organic of this territory approved sept ath 1850 in section ti 6 declares ithac that the legislative power powen ower owen of ot said territory shall extend to all rightful subjects pfleg of legislation cono conA consistent stent with aution of the united states stales and the provisions of this act but no law shall be passed interfering with the primary disposal of the soil no tax shall be imposed upon the property of the united states nor shall the lands or other othen tarr property erty enty of no non I 1 residents be taxed I 1 xe sag higher her th than an the lands or other property of residents all the laws passerby pass passed edby by the legislative assembly and governor shall be submitted to the congress of the united states ai and id if disapproved shall be null and of no effect the legislative power shall extend to all ordinary all rightful subjects of legislation legi but these subjects 1 must be isu jsu buch guch pil as are consistent with the constitution of the united states and the provisions of this act the organic fo act not only so but such law must not com come 0 within any of the exceptions s specified edified in said sixth section and rit fit it is not contended that tho the law in question la is embraced in elther either of suo huoh exceptions the last list clause of bud udd said sald section 6 requires that all territorial laws shall ahall bo be submitted to congress which it is fair to presume has been done and if disapproved shall he be null and of no effect 13 it is claimed on the part of the territory that the clause last ha referred to neutralizes and destroys the prior provision that the I 1 Is subjects of legislation must he be consistent with the constitution of the tile united states and the j provisions of this organic act I 1 cannot conceive it possible that congress intended to say that the legislature could pass any act in violation of tho the united states state constitution ariti arid in violation of the provisions of the organic act and that such acts should he be tile the law until disapproved by congress yet such is the necessary and legitimate result of the reasoning on behalf of the territory upon this point no ingenuity can torture the lan ian language guage to mean that or anything like it congress only intended to reserve in express terms I 1 the right to disapprove tile tiie laws of the territory even oven though such laws might be consistent with tile the constitution of the united states and the provisions of the organic act it was unnecessary and superfluous for congress to make such a reservation in regard to laws not consistent with the united states constitution ution and the organic act such laws were and would bo be null and offo of no effect without buch such provision in section 9 of tile the Or organic gaille act it is declared that the judicial ludi ludl elal cial Ildi powen power of sald baid territory tah shall al I 1 be vested in a supreme court district courts probate courts and in justices of the peace and the jurisdiction uris of the several courts he herein provided for appellate and original and that of the pro of the justices of the peace shall ho be as limited by law provided that justices of the peace shall not have havo jurisdiction of any matter in controversy when the title or boundaries of land maybo maybe may bo in dispute or where tile the debt er or sum claimed claimed shall exceed one ono undred hundred li dollars and the said supreme and district courts respectively shall possess eha eba chancery as well as common laoj law jurisdiction 11 hert here here their then we find that no authority is 8 given iven to probate courts except subh suell as are embraced in the name what is included under that head has i for centuries be been en well understood and is laid down in nume numerous rous roua decisions visions as well as the text books in the language of chief justice shaw in peters vs peters 8 cushing gushing aff the peculiar and appropriate jurisdiction of the probate courts ia is fully laid down as em embracing brn bra cing the probate of wills granting administrations and their incidents incident S 3 it is contended however that tho the author authority ly sought is given by that clause which says the tho jurisdiction shall be as limited by law very true but that law if it territorial must be 69 consistent with tile the constitution of tilo the united states and the provIs provisions lons ions of the or nic i ac and to be consistent witta the provisions of the organic act it ift cannot cenner center upon the pro bate jato courts any chancery or common law jurisdiction as these are expressly given to supreme or district courts the probate courts are courts of inferior jurisdiction and their power cannot be presumed it must be expressly given vs bell 1 sanders 71 73 71 7 1 the supreme and D district courts though of limited jurisdiction are not inferior courts hurd on habeas corpus p 9 territorial laws ch I 1 sec see I 1 p 29 the power given by the organic act to the supreme court of chancery and common law jurisdiction excludes the idea of con conferring oerlin ferlin g like ilke jurisdiction upon other and inferior courts my attention has been called to art lil ill sec 2 of the constitution of the united states which says olin clin in all cases affecting ambassadors other public ministers and consuls and those in which a state shall be a party the supreme court shall have original jurisdiction in all the other cases before mentioned giving general law and equity jurisdiction the supreme court shall have appellate jurisdiction etc here are powers simply granted without any words making such sueh powers exclusive or concurrent itis contended on behalf of the territory Terri territory tor y be cause the word exclusive is not used that therefore it is not exclusive congress perhaps in an early day thought the same way in regard to the U 6 constitution fo for fon r they by act of congress author authorized the U 8 supreme court to issue writs of mandamus in certain cases th therein erelio specified in I 1 marbury vs madison fa dison 1 cranch cur tisa edition an application was made to the supreme court under the act of congress referred to the supreme court t did not recognize the power of congress to pass such a law and held that the court had no power to issue writs of mandamus and chief justice marshal marshall perhaps the ablest jurist who ever occupied the exalted position in deli dell delivering gering Vering the opinion of the court said affirmative words are often in their then operation ne negative of other objects than those affirmed and in this case a negative or exclusive sense must be given to them or they have no operation at all but in addition to what has been said the precise language of our organic act lias has been passed upon uron in other states annd arid territories and surely the law ought to mean the same in utah as elsewhere and the opinions of courts of competent j u ris diAlon in other territories as well as states are entitled to the highest consideration in arriving at a just and correa correct view of the law aw in wisconsin in the case of smith vs odell lwis it is held that the legislative assembly of the territory cannot pass ym an act in opposition to 10 or in violation of its organic taw jaw the courts cannot be required to enforce ennoree such auch an act it should be treated as a nudity tty ity 11 in kansas whilst a territory this very question fuestion of the jurisdiction of probate courts arose under an organic act precisely like ours so far as jurisdiction of courts were conce concerned ined the legislature had gi given y en probate courts civil and cr criminal minai mInal jurls jutis jurisdiction diction concurrent with the district courts in the ease case of locknane Loek nane nano vs martin mc me cahors reports p 60 also dewey vs dyer p 77 the supreme court of the territory of kansas declare unanimously that the act of the legislature conferring upon probate court jurisdiction of cases at common law and chancery ia is inconsistent with and in violation of the organic act of this territory kansas and therefore in so much of no legal validity the same doctrine was re affirmed after kansas became a state in the case of graham et etc al alvs vs kelly 1 kansas B R in idaho the same question of the tho jurisdiction of the probate courts under an organic act like that of this territory was passed upon by the supreme court of the territory thele dubeil durell was prosecuted and fined by a probate court for selling goods without license in the learned opinion of the chief justice mcbride in that case the people vs durell 1 idaho B R p 30 it is declared that that the case stands in the same condition as if it had been originally begun and tried before a private individual the laws of the tho Territory invest no man or court with authority over these omon oTon ses exco except justices of the peace and alid t the 0 district court and the probate court was acting in neither eana eada capacity see also moore vs s koebly on I 1 1 idaho p 55 aa 1 I have vanders understood 0 yd that tj the c 6 supreme supreme courts of montana IN wyoming and new mexico 0 have given similar decisions but I 1 have seen none of them in the other territories so far as rn my information goes the question has as not been raised or the legislatures h have axe ave not presumed to give such powers to probate courts in every tribunal outside of this territory where the question has been raised it has been decided adversely to such jurisdiction ris diction by the probate coults congress also has recognized the fact that these territorial legislatures have no such power fa from rom the fact that in the cases of idaho and colorado they have granted additional powers to probate courts it is contended that congress did not so view the matter from the fact that it has passed a law w annulling the laws of of certain sessions ees of the montana legislature but this proves too much and ancl is in strict ac corrance cor dance dauee with my views as above g given iven that act of congress annuls n ul ali ail all III acts of a I 1 so called L legislative e gisla tivo tive assembly it 1 U amp simply I 1 1 Y a repudiation of wb what at congress considers a bogus legislature even though its acts might be consistent with the united states constitution and the organic act the attorney forthe for the territory in this case relied upon the case of the american insurance company apt t al vs v s canter 1 I 1 pete peters rs to sho show W the power of 0 a territorial legislature to give jurisdiction to a territorial court this was a case arising under the territorial laws of florida but a 0 simple refer reference euce ence to the organic act of that territory will show at once that the authority to create such a court as that described bed and to confer upon it the jurisdiction allotted to given in ample terms in the organic act I 1 have carefully examined tile the celebrated englebrecht caso case 13 1 wal and can find nothing therein to sustain the tile view that the bie probate court can have criminal jurls juris diction or any jurisdiction as a court except the same be conferred by congress now let iet us turn to the supreme court of our own territory here wo we find that at one time 1861 the supreme court had bad other jurisdiction than of probate matters chief justice kinney kenyon vs kenyon says that the legislature can not curtail the chancery and common law jurisdiction of the supreme and district courts but he thinks that divorce is not necessarily embraced in either elther chance chancery or common law jurisdiction ile ho doe does not decide as it was not in the case anything about the criminal jurisdiction of probate courts it is possible as to this latter j jurisdiction h he e nii nil might i gb t have h held heid e d as is now commonly held field elsewhere the decision reolo of Kenyon vs kenyon has since at least twice been overruled by the supreme court of this territory in the case casso of taylor vs taylor and higby et a al vs cronin et al and we find the established doctrine in this Territories thab that probate courts court s have no criminal j jurisdiction it is not necessary to refer to the other points raised as thesis this is decisive ot of the case I 1 am ther therefore C fore foro required in j ustice justice to dl the petitioner from the custody of the warden of the penitentiary and allow him to godfree go free oree hols hois discharged |
