| Show SUPREME COURT DECISION jurisdiction of probate courts in cases of divorce ingvor ce opinion of associate J justice jr S boreman boranian chief justice J JB mckeon mckean concurring associate justice imi P JT IT E emerson merson dissenting delivered may 21 1874 alice cast App appellee elice V october adjourned vs I 1 term erlam casti may 1874 r appellant I 1 1 boreman justice delivered the I 1 opinion of the tha court this is asuit a suit sult f for or divorce from the bonds of ma matrimony trimon and mor for r or al alimony which was instituted by the appellee against her husband in the livid district court of the territory wherein a decree for divorce and alimony was ehte entered red and thereupon the defendant aD pealed appealed to this court the only mily question raised and involved is as to the jurisdiction of the district court to hear bear and determine thomase the tho case the objection to its taking cognizance thereof is based solely upon the ground that divorce is elther neither either the subject of common law nor equity jurisdiction but is a special proceeding and purely statutory it is further claimed that the only statute which controls this matter is territorial and embraced in one ono enactment entitled an act in relation to bills of dinoi divorce ce approved march marcu gih 1852 by th the terms of this law divorce is is committed to probate courts and no allusion is made to the district courts the these ae facts it is claimed exclude the subject for consideration in the district courts if it bo be true that this jurisdiction ludis luris diction depends entirely upon Terri territorial tofal statute it does dobs not 11 ollow follow thatis that it depends entirely upon the one particular statute referred to other statutes ma may 1 r cover the same sub subject eject matter ancin and in order to reach a correct conclusion as td the powers granted and the intention of the legislature the examination should extend to all territorial rit enactments bearing upon the point in issue the legislature nearly ten terl months after the divorce act att enacted the law entitled an act regula regulating tino tina T the mode modeo of civil procedure in chiv civil ia cases in iti the tile courts of the territory ol of utah approved december 1852 which provides section 1 that thai all the courts of this territory shall have law raw and equity equit y jurisdiction in civil cases I 1 and the last section thereof repeals all conflicting statutes utes these terms seem to confer pa a general jurisdiction and make no exceptions the natural deduction is that ahk no exceptions were intended or had bad in view but that the purpose was to embrace all civi suits in this general grant 0 of jurisdiction u r tion mr justice story conveys t the h same idea in the fol ool follows following lowi ng broad language the remedies for the redress of wrongs and for the enforce benr of rights are distinguished into two clas cias classes seb ses first those which are administered in courts of common law and secondly those which are administered in courts of c equity 1 ti I 1 lt Y 1 stcl Stol storys rys eq juris par 25 if divorce be a remedy for the redress of wrong or for the enforcement of a right it belongs to oro ore of these two classes either to the class administered in courts of common law or to the class administered in courts ot equity and if to either elther eith er class then this statute confers the luris jurisdiction diction upon the district courts and so much of the divorce act as seems to confine such cases to the probate courts is by the repealing clause referred expressly this civil procedure act was subsequently so far as in conflict with the code of 1870 repealed but as there is no conflict so far as this question of jurisdiction is concerned it remaina remains unimpaired in addition to this the code rode of 1870 bears out tho the same general idea that the district courts have jurisdiction in all civil cases over two years after the above mentioned enactments of 1852 the legislature manifested this same intention in still broader terms in aan an act in relation to the judiciary clarys 1 11 approved jan 19 in the first section of which we read thit the district courts shall exercise original jurisdiction both in civil and criminal cases when not oth otherwise erwis se provid provided ed by law the words law and ani equity are left out and the jurisdiction is made to embrace all civil cases ases c as well as criminal cases case q when it is not other wise provided bylaw the reverse of this general grant of power must roust be provided in some law the granting of a particular jurisdiction to the probate courts s is not sufficient to naga tive this nor does this enactment affect the jurisdiction of the probate courts but the district courts shall have the jurisdiction al also aiso 0 o in that as in m all other civil cases unless some bome so me other law says they shall not have it the divorce act itself does not so provide and it ha has hai s not been clai cial claimed nied that such a provision Tro vision anywhere any where exists by in inference ferenc ferene alone can the colAc conclusion lusion bidrawn ba drawn from the divorce act that the district courts are to be excluded from jurisdiction in divorce it will not do to say that inference is what is intended or allowed by the words otherwise provided these words require an express negative of the power divorce is a civil or a 4 criminal suit and of course no one claims it to be the latter iatter nis wis it is a civil suit whether we call it a suit at law orin or in equity or whether we call it a special proceeding and sui generis let us ug now advert to the question of the power of the legislature to pass the divorce act this act specifies the causes for which divorce can be granted and it likewise gives directions as to io the manner of proceeding in such cases and purports to confer the jurisdiction thereof upon tlde tle tye probate courts the authority of the legislature to specify the causes of div divorce orceL and to direct the manner of proceeding is not questioned betit but it is claimed that that act so far as i it t confers the jurisdiction upon probate courts is ia in conflict with the orga organic 11 act and ther therdore more wore null and void the authority of the legislature to confer such power upon the probate courts is ia based upon that portion of the organic act which reads ai 11 follows sec 6 that the legislative power 0 sal sai sald said territory gha sha shall if extend to all rightful subjects subject of legislation consistent with the constitution of the united states and the provisions of this a act ct the subject must not only be rightful Z but also consistent si Bi stent with the organic act the latter iatter clause of this thia sixth be section respecting the transmission of or the laws to congress and its disapproval cannot be relied upon in this casein case if an arl act of the legislature be already void the disapproval of congress is not necessary ces sary such disapproval is only necessary to make void that which is otherwise valid when the matter considered isa is a ri rightful hatful subject of leg isolation and coni cons consistent latent with the constitution ution of the united State Stat sand egand with the organic act but yet is inexpedient and unwise it would bo be necessary to invoke the disapproval of cou congress to invalidate it but any act of the legislature which is nut nui consistent with the constitution of the united states or which is not consistent with the provisions of the organic i lit itt act rovis is null and void and it seems impossible that congress should have intended to lequire its disapproval of such acts that should have intended to require its ita disapproval to m make mawe ake void that which is already void the case of clinton vs vi engelbrecht rightly understood lays down no such doctrine by the organic act the judicial power of the territory is divided into four distinct brith ind ested respectively in a Sup ava district courts probate courts court and justices of the peace the necessary deductions are aro that f mour four our kinds or qualities of jurisdiction wi were ere intended and that these kinds oi or qualities were to 6 be distributed in a manner usual to like courts in tho states if a jumbling of jurisdictions was to be allowed the divi division slon sion of the judicial power I 1 cr was wis wholly unnecessary tand this commingling com mingling df jurisdictions ig id comparatively unknown under like organic acts except in utah but our organic act does doe s no not t sto stop with this thi simple division of th the e judicial power in into to four heads beads it goes farther and provides that the district coults shall be vested with the same jurisdiction as is vested in the circuit and district courts of tho the united states and in addition thereto provides that the jurisdiction of tho the several courts herein provided for both appellate and lid iid original and that of the probate courts and 0 of justices es of the tho peace shail ghail be as limited by law provided that justices of the peace shall not havo have jurisdiction of any matter in controversy when the title or boundaries of land lana may be bein boin in dispute or when the debt 1 claimed shall exceed one guilld dollars and the said superior an and district courts respectively shall pos sess bess chancery a as bellm well weli as common law jurisdiction sec sec see 9 the jurisdiction here vested refers especially to cases arising under linder territorial orial laws if the territorial law should give the tho right and that was such as was recognized as common liw law or in chancery or such as required common law ann principles or equitable principles to be invoked to grant the thie relief the jurisdiction belonged to the district court as original and vi tye tie a supreme court as appe ip laie late unless the r words be as limited by law were intended 10 0 o give the I the tho power to otherwise provide pi ovide let Us vis look at this matter this whis fundamental act ays says that the jurisdiction of the courts all territorial courts shill shall f bo be as limited by law U w provided the said supreme and district courts shall chancery ai a i well as common law jurisdiction the jurisdiction of the various courts may be is as limited by law 1 with the proviso and eo seo far as any auy attempt of the legislature con coir fleets with the proviso it is null and void the proviso is as much a part of the statute and as binding upon the leb lee legislature as the express grant to which the proviso is attached the legislature may limit the jurisdiction but undoing in doing so must not come in conflict with the provisor provisos pro mentioned or other parts of the organic act the ithe le legislature gis lature may limit the jurisdictions urla uris dictions of these courts fix the respective boundaries of each court and detail the general beneral powers or of the respective courts this must all be done don 0 according in ato to the authority as given in a the 0 organic aga nic nie I 1 act the legislature cannot deprive any court of the jurisdiction granted to such court in the organic act that jurisdiction u 1 is is above the reach of legal legislative la 0 e enactment act ment dunphey vs rs kleinsmith 11 wallace it is a ruie luio which we conceive conceive to be well settled iv in the united states that no court can have any jurisdiction I 1 except such as is conferred by the power which created the court or by a legislature endowed with wit express s authority at hority to confer such jurisdiction kent com corm p united states stated vs hudson 7 cranch 32 Wh wharton artonA crim law par it Is claimed that jurisdiction i in n divorce can only be taken by express enactment of the leois legis 0 a ture equally express must be the authority ba bestowed stowed upon the legislature if the legislature can claim such a power by ir implication of the fundamental law then 0 iso also with like ir irresistible implication can the district coi n ts cahn sui sli such ch I 1 jurisdiction under territorial statutes utes aside frona froda the organic act the constitution af the united states created the supreme court of the united states and gave a agi general outline of like ilke man ner our gorganio act created the district courts and gave a gener il outline of their ion lon on it nowhere except as aa is embraced in in tild the name gives any jurisdiction in express language to the probate courts th ohp P deli deil delineation nea nes tion of bowen bower contained in in the constitution of the unite I 1 states aa its belonging to the Sap soprenio renio court and the inferior courts coarts to bo be thereafter created is biow now regarded as nothing more in this respect than a power vested in congress to confer jurisdiction in its discretion within those limits ab botts bolts U S R court practice p mr justice B baldain baid BAld ald xia win nin in deli dell delivering vering yering the 0 opinion united nion of the supreme court count of ol 01 the united states in in the ome case oase ol of rhode island vs va massachusetts 12 peters says it was ne he cessa rily left to the legislative power to organize the supreme court to define its powers consistently with the constitution that constitution haying having delineated only the great outlines of the judicial power leaving the details to congress to use a later legal term of the united states supreme court the constitution only chalked out the boundaries r les ies of the jurisdiction 1 it is just so EO in regard to our tern tera tonal courts the organic act gave gaab only jho the outlines of jurisdiction leaving ip to the legislature the organization org of the courts and the details of jurisdiction all how bow however everl everi to he be consistent wita the outlines given just Ps as those of congress were to he be consistent min win the constitution and tt this als ais a and dd nothing more mi 06 it is i T the th e plain meAn indi ingi g of those words I 1 as limited by I 1 law i w the outlines of the jurisdiction given to the are in im the the name and intha words chancery as tw git wit elt eit as common law jurisdiction the outlines of jurisdiction given giren to the probate court are nothing save and except such as i is embraced in in the name itself in filling up the details of jurisdiction to the Di district courts the Legisla legislature ture is guided by the name and the words chancery as well weli as common lawi lawn jurisdiction in filling lip up the de talis of jurisdiction to the tho probate courts the legislature turf can nione alone a ode one be guided by the tha e name and to th do so the legislature can confer no jurisdiction lo 10 t 1 ap pp upon I 1 the probate courte e except x e ept sueh such as li Is usual to puch had congress in n tended more it would havo have b been ee n as easy to say sorin this connection as it was was in connection the district an and d supreme courts probate courts are iq inferior courts couris and allot no jurisdiction can be inferred L it M must qt be given biven by positive aw law peacock peacock v bell bel I 1 S anders sanders 74 the tho district burts courts are not in idla feitor courts within the meaning of tho the language ns as used in the ull books hurdon habeas ap 9 terri territorial jaws ph eph 1 ly 1 becj I 1 L p 29 much fan can be inferred in the their ir favor if the legislature could i infer fifer authority thor ty to empower the probate courts to grant divorces it I 1 in like manner and with equal rea reo son on bestow such power upon jus ital tices tice 3 of the peace the organic act d does oes not say I 1 in ft direct laragh language aoa that it shall not do clu A iyo alo 0 ball bail battle tile very veny idea skow show at onoe once hown gund is the assumption of dr athe the legislature to bestow such anter upon the probate |
