Show CHALLENGE TO THE GRAND JURY SUSTAINED RULING i OF THE COURT BY yesterday a NEWS our readers perceived that the U S attorney forthe r ryen ryer territory ilon HOD lilt W cary eary challenged the grandeury gnand grand djury daury i jury and mooed that ite quashed assigning certain reasons the decision of his honor chief justice mckean was t given sed yesterday erday afternoon iiron the challenge of the U S attorney was as sustained and tile the grand jury discharged ve we present our readers the substance of the ilie decision among C the objections to the panell it was wag incidentally mentioned that two of its members had only received their first papers antl and consequently not being citizens they were not legally qualified to act as grand jurors on that point the court said that benore before rejecting two aliens from the jury jurs he ho would inquire if it they were entitled to citizenship zen ship and if there were wore he might magh t admit them there before swearing and so eure cure that defect thet the first ground of objection to the array army presented by mr cary was that in its selection the jaws of utah had llad not abeen been complied with in in many respects one of the points included under tinder thi this shead thead was that the clerk of the tiie court had not issued the venire thirty days before ahe ithe commencement of the term of the court the chief justice said that while whilo the statute tp required the clerk to issue the venire thirty days before tile tiie tam term tarm began he had been under the liol 1141 impression that that provision was directory that it was Ii intended tended mainly 1 if not entirely foi for therle theao hii hil advantage vAntage of the j juror dior himself so that thirty days before being called upon to io serve servo 11 le C M might ight have notice to make other preparations and if thia point of the statute was not observed tile the j juror himself might urge that lie he nad had not received the notice required by law but if the juror waived that he lie the court did not see bee how others would be endangered by it he therefore did not feel disposed to sustain the challenge on 0 n that ground any more than in in reference to the matter of the non citizenship of two of its members there was perhaps more force in the tiie fact that in tile the certificates of the election of tile the jurors their places of residence and occupations were not designated thus failing to furnish the data required and contemplated by the statute one or two iwo odthe of the tho certificates seemed to be defective in other particulars s still t liliie he was not Ois dis disposed posed fo to decide th the e challenge upon any point included cl in the first objection of the U S attorney though there seemed to bo be some form force iu in omd ome some of thoa them he was disposed tp to overrule them the second ground of challenge chal chai lengo iengo was they were not summoned by tho the united states marshal and therefore could not lawfully take cognizance of of fences ces against the united states the question might be put why were they not summoned bythe bytho by tho the united states slates marshal why W y was the venire issued only to cheso the so called territorial marshal ili in olden times in this territory formo forto any years after its organization the united states marshal marshai served serves all the process of the district court when brigham youn Y oung was was governor and his learnce learned friend orlend judge Snow on the bench here liae sueh such was the practice in that court the united states marshal marshai was the only officer known to the court for the service of process for bap p and a half years he lie the court used to issue his bis order to the clerk to issue his big venire ventre to the united states slates marshal marshai his 1119 associates strickland and hawley did the same samp they followed in the footsteps of his predecessor in office chief justice justlee wilson and after examination rea reached blied the ille same conclusion as he did that the united states marshal marshai was the officer to serve the process of that court and they acted accordingly the national congress as far back as the ath united states statutes Statute sat at large enacted that no grand jury should should hereafter be summoned to attend any circuit or district court of the united states unless tailless the judge of said district court or one of the tile judges fudges of said circuit court sho should ln his own discretion or upon notification Cati catl onVy onby by the district attorney that such jury would be needed order a it venire to be issued There therefore ore Oro they fitted under that act of congress and if ir they thes we were re right a clerk had no ile right to issue a venire feure veure until lie he was ordered but in the celebrated celebia ted engel brecht case caso arasin arising under the laws of the territory and not under the act of congress which went up from this territory to the supreme court of the united states Sta one point contested was was it lawful for tile the united states marshal marshai illar Islar shai to summon the petit jury which tried the case the supreme court of the united states held that it was not lawf uland overruled over ruled the judgment that court was the court of last resort and of the highest authority tho rity and to its decision he be bowed ic but in overruling over ruling the tile judgment of the court in that civil case cae the Ti question estion was did they ove over overrule r rule ruie tl the decision of his preda predecessor cessor afterwards affirmed by tile the supreme court of the tile territory in the ouster of mr mcallister it should be remembered that that cause the united states under tile the relation of or orr united states marshal against jolin john D T mcallister had never dever been appealed to the supreme court of the united state 1 and that court had llad not said whether his predecessor was right or wrong wro ng in holding that mr mcallister mcalliste r wa was s not the proper terri terni lorial mam man marshal marshai ha ilio tho question might be asked why was not the venire issued to the united states marshal aswell as well weli as to the territorial 31 marshal arshAl or to him who is so called the supreme freme preme court of the united spates in the decision towi to ilch lich he had referred held heid that acts of conr congress gress da not apply to the territories unless specially made that that act forbidding the clerk to i issue sue s a venire without being ordered by the district judge was intended to apply to the circuit and district courts within the tiie st states ates and not to tile the courts bf the territories hence ince that decision was rendered he had not issued an order to the bierk clerk to issue a venire he had done but one thing in reference to the jury jurs iry try there was a statute which said that a judge in his discretion might make an order apportioning juries among two or more counties in ill his district in the exercise of that discretion ile he one years ago made an order de r which was still in force apportioning fionin g tile the j jurors arois among six counties in this district further than tharl that lie had bad not interfered by w way ay of order with the venire for the reason that the supreme court held that the legislation under which they had previously acted applied to the federal courts Cour tsin in the states and not irk in the territories and they expressly held that the making up of the lists and all matters connected with the designation of juries were subject to the regulation of territorial law to that decision ever since sinco it was delivered he had bad bowed since that decision numerous efforts had been made to induce him to act under the congressional law to which he be had referred but butt he had refused to do so and he should continue to refuse he bowed to the supreme court of if the united states which held that the local legislature had control of the jury system in a territory and what had the legislature isla isia turg turp of this territory done A As the law now stood he could hold al a district court for united states bus iness only here in salt lake CI city ty or in salt lake county but he might h hold hoid old oid a court in any other county in hix hiff district to try causes arising under the laws of the tho territory only provided the territorial legislature or the county authorities had made provisions for paying the expenses wei Wel neither their the L legislature e g nor the county authorities ti es had made such sequent lk lyall nii all the terms of his court were from necessity confined to this county but however ample might be the provisions they might make so far as paying expenses were concerned he could hold hoid court for united states bus business in this county only the statute said that when a district court was to be held whether for fora forn a di stricter foxa county the clerk of said court should at least th thirty arty days previous lous logs to the time of holding said court issue a writ to the territorial marshal marsha if said court was to be holden bolden for a dist district c or to the sheriff of a count county if said court was to tob be red um hed for lor a county specifying the thed then ti io and place of holding li said court requiring him to summon eighteen tJ gible men to serve as grand jurors and eighteen eligible men to serve as petit jurors there was another provision saying that fifteen men should constitute a grand jury twelve of whom must agree ou an indictment in the present instance save in regard to the thirty days which lie he the court could not regard as vitiating the venire tho the clerk had acted under that section he had issued his venire to the gentleman who claimed to be and who was called territorial marshal and hence came up the question raised by this second ground of challenge it was only district and arid circuit judges adges in tile the states who could act under the act of congress in reference to or dering ordering a v venire alre aire e for the tile engelbrecht decision had remanded territorial judges back to territorial law and the tile law of this territory said the venire should be issued to the territorial marshal marshai Ma rahal and as that court was not to be heid held por for a county but for a di district triet brict trl tri ct the venire was waff issued to the gentleman who claimed to be territorial marshal marshai shai it looked to him the court very much as if the tile 1 legislature slature had done all that within it lay to oust the united states marshal from his office he did not say they had ousted him but that they had done all they could to that endi endl end and if mr mcallister was wag territorial marshal the clerk had simply done his hia duty under that statute there was no statute ordering him to issue the venire ventre to the united states I 1 marshal marshai unless they could go back to some other statute showing that the should still order him to do so the statute now under consideration atlon ignored the judge and went right by him the tile legislature issued its commandant comman command dand and when the clerk issued his hla venire to the territorial marshal or to the county sheriff he obeyed that statute they might say this was a dexa ti boua ous dilemma a an n embarrassing situation in which to be placed true but they were not there to legislate but to take the law as it was and and nind find out what it was if they could aa the local statute did not command the clerk to issue the venine venice to the united states marshal marshall of course he did not do it then the question was did he issue it to the right man that brought the court ao to the consideration on of the third point of objection the jurors now in court were not summoned by any officer but by john D T mcallister a private citizen tile the said mcallister having it av ing beell been ousted 0 u sted from tile the office of T territorial arri 1 marshal marshai by the judge of this court imay ath 1800 1870 hon ron chief justice wilson then presiding which judg judgment had bad been afterward amm aff affirmed limed by the su supreme re me court odthe of the territory and had never been reversed if that cause had gone to the supreme me court of the united states and that court had decided that the territorial marshal was the proper officer to serve the process of this court in cases arising under territorial laws that would have been an end odthe of the matter it would atwould have been as binding as a statute of congress or of the legislature but that cause was not appealed to the supreme court and he did not understand the engelbrecht decision as going to the extent of saying baying sayi og by any means either cither expressly inferentially lly or logically that mr air mcallister was tile the proper territorial officer there were some sentences I 1 in u that asif as if the court had some question in their minds as to that but that question was not before them and they did not pass upon it I 1 prior to the engelbrecht Engelbrec lit decision many members of the bar regarded mr mcallister as net not the lawful territorial marshal and for two reasons one of which was that the local legislature had no howerto power to create the he office and that the united states marshal marshai M arsdal was empowered to serve all the processes of the court that doctrine had however been overruled over ruled another reason why hia his right to the office was disputed was that the legislature after alter creating the tilled it what without the intervention intervention of the governor the marshai marshal mars halwas baLwas was not nominated by the governor the two houes howes of the legislature controlled it absolutely and even conceding the right of the legislature to create the office they had no right to fill it without a nomination being put in by the governor to the council while the court coutt was of the opinion that they were wrong in holding that the legislature had no right to create an officer to serve process under territorial laws lalys the supreme court of or the united states had held that they were wrong hud nd to that decision he bowed yet hs was of opinion that if the case tho we united states under the rola tion of orr vf mcallister had bad fine gone to the supreme court of the ted states they would have held that that office could only have been filled on a nomination by the governor and confirmation by the council and he therefore there dole foie was not of the opinion by an any means that logically or necessarily the h engelbrecht ngel decision reinstated instated re ro mr mc me in the ollice which lie he held ile he would be glad to hold hoid ane one term of without having some of these great questions to pass upon every week during the tile term yet that not to be the fortune of ofa judge in utah in one shape or another these questions arose at every term terin of court he supposed it would continue to be so they must do tile tiie best they tiley could embarrassments Embarrass ments would grow out of any decisions decla decia ions lons they might inight make in these theio matters anda jude judge must reach the best conclusions clu ciu lie he was capable of even then lie he might make some mistakes he derived some consolation from the fiet fact that in the oldest states where the jurisprudence all ran in a groove and where a new question was a very rare aare thing but where almost every case that came up was controlled by precedent it was one of the com eom commonest monest things for a judge to be overruled over ruled it was some coi col consolation isolation to him to remember that fact when lie he found himself almost every day either in term time or in chambers confronted with the most perplexing questions questions ever over which learned after arter elaborate arguments frankly |