Show SUPREME COURT DECISION jurisdiction of probate courts in eanes eares ot of divorce 1 dissenting opinion of associate sao aiato justice P jr emerson may vay 21 1874 lic bli in 16 the Sup supreme reni e court yesterday y after Asso associate cUte justice bore niall man read gread his opinion declaring that probate courts in this territory had no jurisdiction in divorce matters chief justice mckean concurring associate A justice justic emerson emersn deli dell delivered verea vered the tho following dissenting opinion v C alice cast cas t 1 1 complainant supreme court cobit vs r of aw j uia ula utah 1 h territory defendant J 0 1 1 1 I 1 am compelled to dissent from froin the opinion in i on just delivered 1 cheerfully gee ode bear I 1 r testimony to the acieh ieves e ti gation ot of my brethren I 1 a their greater learning their wisdom their ripen riper judgment and 1 I bow before teli their superior authority yet I 1 cana cannot surrender thie ithe condic eions of my own mind convictions carefully and deliberately formed and sincerely ana and conscientiously ta bously entertained torta ined I 1 propose in as as I 1 can to give the reason for my dissent the bill in this cause was filed by the complainant in the third district court to obtain 1 a divorce from the defendant on the tee round of i failure to support cruel treatment and misconduct on the part of the defendant fen dant rendering it impossible fon for far the parties to live in peace and union union tc together gether ani and that their welfare required a separation these aro are all statutory grounds for a divorce upon the part art of the cle defendant it was in insisted sister in the court below that the district court had no jurisdiction of this class of cases that court held that it had th case eme was heard lipon upon dings and proofs and aud anda decree ofee of ilea divorce from the bonds bt anair matrimony emony was granted as prayed for lor the defendant appeals to this thia court the question involved iii in this case is is one of great interest it has been extensively and ably discussed by the bar and has awakened much interest and great anxiety in the minds mindi of all classes of citizens of the territory it has bas been before the supreme court of the territory cry at dit dlf different lerent times and it is claimed that the decisions there are conflicting the same question has also been raised before some of the present pem members of this court when sitting as judges odthe of the district courts and the decisions there have not been uniform the terrible effiec effects ts that would follow if one view taken of this case caso should be established as law adds to the interest and public anxiety connected with the question in this case for twenty two years one class of courts in lii this territory have taken under the territorial law juds juris diction in this class of cases and abia marital and vast property tights rights have grown up under and out of these courts and now the jurisdiction over the subject matter is not only questioned but denied for these reasons rea was desirous that the decision in this case should be postponed from the lime ilme it was submitted at the last october term until the present adjourned ter term in that the conclusions arrived at might be the result of thorough investigation vesti gation and careful study section I 1 of an act of mhd th territorial legislature entitled an act in relation to bills of divorce N approved march fth 1852 1952 provi provides es that the court of probate in the e county where v 1 ere the plaintiff resides sha shall shail coun 1 have e juristic juris jurls jurisdiction dic ion lon in all cases of divorce and alimony and of guardianship and distribution of property connected therewith the balance of the act prescribes for what causes a divorce may be sought and gives a mere outline or skeleton of the mode of procedure in such cases with some minor details as to disposition of property custody of minor children au c which are in no way important in this case nowhere in the chapter is there any other than the probate court referred to to take the jurisdiction of this class of cases the right of the district courts of utah to grant divorces from the bonds of matrimony for statutory causes is the real point inis in issue sue suc 1 the question arises under the act of the ohp r aap rede refe referred ried i to aad supposed posed to ta ld involve dive give some important considerations regarding constitutional law it will bo be een seen that the territorial act specifies tho the causes for which divorces ma may abe be grante granted dand and in express terms confers tho jur jurisdiction 1 to grant them upon the probate courts jt it does not purport ur to give jurisdiction toto district courts nor is it claimed that there is any ather other legislation either national or territorial y that in terms undertakes to d do ab so on the territorial law therefore as it stands if it is valid the probate court may grant divorces but no other othen court can unless the power is to be derived by V implication frond rom the general terms in which the authority of other courts is conferred the argument on the pa martof i bitof the ap appellee ellee eliee embraces and may hilay be sura summed bummed nl up in the following propositions ti ons that authority to io granit gramit glit divorces is inconsistent with the idea of a probate jur jurisdiction and therefore could coula not be conferred ubo upon n a court which the original law provided for as a probate court 0 f and 2nd that though lor dor this reason the territorial act in question is void so far as it assumes to empower the probate court to grant divorces yet that this void vold part does infect the rest and thid the act is entirely valid so far as it specifies the causes for which divorces may be granted 3rd ard that there being then a right to lione rione or the 60 specified causes c exist courte expressly and in terms em empowered p cowered to gront grant it the district court of lecessi necessity and under its general grant ot of powers may do so these three propositions it becomes necessary to examine examine successively and if anyone any one of th m shall prove to be unsound this proceeding must eail lall that every one of them is is baseless is my undoubting conviction the proposition that the idea of a probate court emard 7 excludes in matten matter io fl divorce itis 0 sounds strangely enough en la borne in mind that our institutions come to us from a country where j jurisdiction u I 1 iu bk h lias ilas always been exercise dby the same judges to whom the law has confided authority in probate matters it is true the ecclesiastical courts which until recently have been the probate courts in eng england edgland were not empowered to grant divorces from the bonds of mari mony but neither were any other courts and so far is as divorce was a matter of judicial cognizance cognizance at ablit wid was left exclusively vel vei tol fol forthe aile wile ece ecclesiastical I 1 eslas esias t tribunals nals bishop mar blar and div eh ch 3 indeed blackstone speaking of which the jurisdiction uris diction of these courts which in many other particulars had bad been frequently luent ly questioned adds that amat matrimonial ri causes or injuries respecting the rights of marriage are another and a much more undisturbed branch of tho the ecclesiastical jurisdiction im andt hae haf cailles causes CRUSES matrimonial are life now so 80 peculiarly ecclesiastical that tho the temporal couris courts will never interfere in c controversies i antro i of this kind unless unk in in some particular cases as when a marriage i is i called in question after the death deah of parties and when it would tend to bastardize and disinherit the issue 3 blackston e coul cou 92 93 j and so BO thoroughly was the rl ety of a union of probate and divorcee jurisdiction fixed in the english mind that when recently it t vms as deemed best to confer authority to grant rant divorce from the bonis of matrimony upon the courts the probate court court selected that jurisdiction 3 cooley a B blackstone 95 note brown rhen then baries vol 3 ch xiv and though the lord chancellor and the judges of the superior courts of common law might sit bit in m ahat that court with the judge of Pro probate bite tho the la ish wa the ludge judge ordinary and usually gat sat alone klone the english pra practice clice elite i 13 We therefore redore distinctly against the proposition taken and is nearer in ha armony with the territorial statute than iban with the opposite to view the american practice affords lords little more support it indeed it does anito any to the appellees appelless app ellees first proposition there is is no such thing as uniformity in the american states as to the jurisdiction that hat maybe may be joined with th thab that cut af te probate of wills or on the other hand as aa to the courts that snail eald bild ke cognizance of applications for divorce in some states the constitution or br the laws have been carefUL to 40 confine tho probate courts to matters concerning the administration of estates but lil lii in others the probate jurisdiction is ia united with that of common law and I 1 chancery causes an example of the latter class may be seen in iowa where authority v over probate matters is vested vented in the circuit courts which are are also with the district courts eni powered empowered to t try ry causes at law and in equity and to rant ernnt divorces code 1872 pp ap jn in perhaps one half halt of the states of the union the courts having probate powers have also a somewhat multifarious jurisdiction embracing in in some cases emes criminal jurisdiction of which oregon is is an example const art 7 12 it would be idle to undertake to deduce any general rule from the constitutions and laws lassof of the tho several states as to the classification of the probate and divorce jurisdiction or as to U the delegation of either olther to any particular C di of court but this ml may liy ely be bes said bald in general that divorce els eis is sometimes a proceeding in the com corm mon nion law courts sometimes in the equity courts and may sometimes be had in the courts exercising probate pro bite PI powers sq Q that the question of the the delegation of divorce jurisdiction where not deter determined by the state constitution to have been ban always re regarded as one addressed to the legislative decision and to be de determined ter not according to any fixed rs rutes but according to the legislative view view of what was most expedient if these views be correct the whole argument for the appl appi appellee aliee ailee falls to the ground the organic act did not mot specifically provide for cales cases of divorce and it became necessary therefore for lor the Terri territorial toria torla 1 legislature to prescribe the jurisdiction 1 when it prescribed the causes A case of divorce is not intrinsically a law case for it was unan unknown own to the common law AW lais it is not intrinsically a clan eian chancery case for it was unknown to equity I 1 jurisprudence the tha new yew york cases of wightman vs wightman 4 johns ch chr and perry vs perry 2 21 paige paig i e relied 1 upon by the appellee are not authority further than tins that a court of equity when a supposed marriage is not such in fact but is void from inception may declare it so as ai they may declare any other contract void vold but the true doctrine undoubtedly is that stated by mr bishop that no judicial tribunal in hi this country can take jurisdiction ris diction of divorce cases without the authority of statute bishop mar and div ath ed seo see 71 it is a p proceeding sai sui g generis eberts and its bome beme so regarded accounts for the diversity in amerl ameri ail an legislation it is not denied that the territorial oril cli cil legislature e g possesses a general au ji or t y to legislate on doi dol domestic concerns indeed that right has bas been most fully recognized by tn ti supreme court of the united Unite d stated states iu ia tiie ilio pase ease of other territories as well as ot th tit a and th quest question ibn is no longer open to argument Miner miners 9 bank vs low iowa 12 how 1 vincennes university vs IndiA indiana iia fla 14 how clinton vs englebrecht englbrecht 13 wall wali and as no other defect defea in tie the territorial act is pointed out than the excess of af authority tho nily rily jn in gt granting divorce powers to the probate pate courland Cour tand it is is not claimed that hn any specific provis provision ion lon of t tae the 10 organic act is violated it would seem as if the decision of the caso case might be rested here all presumptions favor the validity of legislation and those who ambel a sail sall ip it mut nut mut be able to sh shw show w how ind and why and wherein it violates t the he fundamental law the remedy for jor sp legislation legis Ution does not rest with the courts commonwealth vs ra mcclos ky K y 2 rawle sill ra village of Corning 15 N colleys cooleys Coo leys const law and cases cited this court has nothing to do with legislative policy we are not made judges of the motives of the legislature and the court will not usurp the inquisitorial office of inquiring into the bona ji es of that body in discharging its duties people vs draper 15 N Y sunbury and erie R E R co CA vs cooper 33 penn sta 2778 2178 baltimore vs state 15 md but iffe if we were to concede that the territorial act was invalid so far fr as it designated the divorce courts I 1 call carl cannot conceive how bow the other parts of the act could be of any force whatever that act was passed as is ia very ver manifest from its provisions for the specific purpose of empowering a particular class clam of courts to grant divor ces it was wm homogenous and there is 13 not a provision in in it from which we may gather an intent that in any contingency tin gency any other court should receive this power there thil 6 is i no loom to suppose or dr to sk PI 1 l t CIs c Is that tilt the legislative intent w was as that if the probate court would not act some mine other court not named should do so no one imagines 0 or r pretends that such were the facts on the contrary it will scarcely be denied that when the tho district court takes to itself the divorce jurisdiction it doe a so in distinct dereg disregard d of the leg legislative n i will bijl it endo ento enforces ace th the e other which the legislature would never have passed by itself and in a manner to defeat the legislative intent now it is admitted that a statute in may a some ti times imes be held vold nold in part i and and valid as to the remainder remaina e r but this can never be done without the most manifest usurpation of legislative authority except where the court on an ant inspection of the whole statute can satisfy itself that it is enforcing a legislative intent in so doing it can never so hold without the most manifest impropriety when ahen it is plain that to do so soh sot would defeat the legislative intent no court is at libert ilbert liberty v to split legislation into fragments and arbitrarily tra rily from its own notions of what the 1 law aw to be give effect toone fragment to the rejection of the rest the furt further herett est cst a court can carl g go 1 0 is this if when a void part or of a statute is out that which remains is complete in itself and capable or of being executed in accordance with the legis active intent wholly independent of that which was rejected then it may be sustained cooleys colleys Coo leys const law warren vs charlestown Charles charies town bown 2 gray log state vs berry co 5 ohio N S state hate vs Do houserman 28 wis 52 7 compau V P detroit 14 mich mien applying tas ti rule to the tile present case the statute fails entirely if the probate jurisdiction fails no one can pretend that without the portion |