Show SUPREME COURT DECISION the territorial Marshals lil ili P f opinion of chief justice I 1 jr B mckean associate justice J S bureman concurring and associate yr ustice justice P II 11 emerson dissenting I 1 sen ting I 1 may 21 1874 lse T Y OV OP t tali tair october supreme court J berm isa 1 ex parte BE benjamis BENJAMIN L DUNCAN johs jonn D T mcallister the tho court being iu in adjourned adour ned session in the month of ouslay hlay blay may Slay 1874 duncan upp appeared eared in aburt and by his councel claimed clait ned to be recognized by the court As aa territorial marshal for tho the territory mcallister also aiso al 8 appeared by his bis counsel and claimed to bo be recognized recognised as such territorial marshal tho who evidence presented and the grounds relied upon by each are stated and considered in the opinion of thi the court I 1 i J 11 mcbride and R baskin for duncan t J G sutherland and aud snow W for mcallister mckeay AN ch J delivered the opinion of the court J T concurring EMERSON J diss dissenting 1 nt on the argument on ou behalf of the respective claimants the journal of the legi dative assembly ati asi of utah was introduced showing that on the day of february illery 1874 the council was in session aud nud rub nub that among other proceedings communications were were received from his excellency the governor nominating benjamin L bunoan to the office of territorial marshal 21 A commission or of which the following iq a copy was also introduced trod the united states of ame america rica t territory of utah j to all who shall see these presents 0 erecting rec ting know ye that whereas benjamin L duncan wag was on the third day of march AD AB 1874 duly appointed territorial marshal in and for the territory of utah and he having duly qualified fled as such as appears by proper evidence on nilo file in the office of the secretary of the territory therefore 1 I george L woods Gover governor of said territory do hereby commission him territorial marshal as above indicated and authorize and em empower po 0 r him to dise discharge harge the duties of said office according to law and to enjoy tile the ri rights co blits and emoluments thereunto legally appertaining ing until the tho next session of the legislative assem bly bis 1 and aud until his successor shall be elected and qualified to office I 1 in testimony whereof I 1 have hereunto set my i js hand band arnd annd caused e 4 the great seal of said territory to be the affixed done at salt lake city this tin s third day of march A da D 1874 and andoe of the independence of the united states the ninety eighth I 1 GEO egeo L WOODS governor GEORGE A BLACK secretary of UL utah ah territory on the part of mcallister the journ jou anal al of tho the legislative A embly was introduced showing that on the lath day of february A D 1874 the on elections of the house of representatives reported to the house the number and kind of officers to be elected by the joint vote of the legislative assembly among others one territorial marshal marshai and added your committee would also recommend that the assembly hold a joint session as soon as possible poss ibie ible consistent with other lecial legislative a tive business for thy the purpose of ma making kine king said elections also showing thao that in the ho house usen user of representatives on the of the same month mr 6 A mann maun moved that the council be fe requested quested to meet the house houge in joint session tomorrow to morrow at 2 pm for the purpose of electing the tile officers to be made elective by bylaw tev by the joint vote of the legislative assembly seconded and carried carriedo carri carrl edv edu 41 also showing that in the council on the same day A communication was received from the house asking the council to meet in joint session tomorrow to morrow at sit 2 pm pim piu on motion of councilor harrington X the council agreed thereto 3 also als 0 showing the following record joint session representatives hall salt lake lako city february 20 1874 according to previous agreement e the assembly went N yen t aire agre in into t joint session the them president of the council vounell presiding pro sIdIng the roll of the Co council unell ubell was called by the chief clerk of the council quorum present 6 the athe roll roil of the Hous house ewas was called by the chief clerk of the house quorum present f the president declared the joint session open and ready to proceed to business to on motion of councilor harrl ng ton J john oh n D T mcallister was wag elected territorial marshal marshai 11 documents of which the following arb arla copies were read ori gri the argument representatives HALL hant salt lake laue L ake aue city feh eeb ife 1121 lidl 11 21 1874 yron iren iron J D DT T mba McA gisler dear sir birwe vve ave have the honor to you that at a joint session of the legislative abs abo assembly held at the representatives hall oll on the awen twentieth aleth instant you were elected tort territorial marshal marshai fOrthe fon for the territory of utah for tile the term prescribed by law respectfully yours your q e L jons jonn NUTTALL clinef chief clerk of the coun council c al L chief clerk of the house of representative AUDITORS salt lake city citi feb 1 I hereby certify that john D T mcallister who was on the tile twentieth day of february A AD D 18 1874 74 elected by joint vote of the legislative isla tive assembly of Territory the of utah to the office of territorial marshal for the territory of utah hath this day presented his bonds with security and taken and subscribed the oath of office which bond has been up approved proved and filed in my office as required by law in testimony whereof I 1 have hereunto subscribed my name and aali affixed zed my official sea at my office in salt lake city the day and year aforesaid r 1 l WILLIAM CLAYTON J i aa LS s I 1 au ap editor of public accounts for U T the contest between duncan and mcallister for the territorial ship does not come como before us on appeal nor is it in the nature of a writ of quo carranto warranto war wap tanto each petitioner asks only to be reco bilz ed d as its the Marshal marshai dc facto leaving the question as to ta who is marshal dejure de jute jure to bo be contested in another way but the manner in which tile the question is presented to us will compel us ansome in some regards to consider the legal rights of the peti pett tio ners though we intend now to decide only which of them shall be trea tedas the de facto officer of the court I 1 has the Su supreme court of the united states decided the questions involved in this contest if it has hns then its decision must put a speedy end enato to this congrove con controversy trove ry the cases of clinton vs knod enod brecht and snow vs the united states ex rol roi been cited as controlling W and it must be conce conceded dedon on all hands that if tile the questions now before us have been decided in that court it was in the one or the other or la jn both of those bases cases what were the tho questions involved in those cases in clinton vs engelbrecht the united states marshal marshai summoned the jury which tried the case a case arising under the local laws of the territory the court decided that tho jury should haye hayg been sum boned by the territorial marshal and no nob not t by the tho united states marshals in snow v the U S ex rel the united states attorney claimed that it was waa his ilia right and duty and n not nop ot the right and duty of the territorial attorney general to prosecute in the federal cou courts ris rib all off offenders against the local c criminal al laws of the territory ri tory th the a court dechter decided that such such guch offenders should ald be prosecuted eaby by the territorial at torney attorney general and not by the united states attorney I 1 those questions being decided are sel at rest resl bu the i supreme court of the tile united states tate s would bp be the last ladt court to claim that it could decide in fil lipse se crises cases or in in any oase case a question not involved involve a in the recard no court has more clearly than that court laid down the doctrine that an aix alx opinion ef expressed a quesa quest question loii not before the court is neither binding upon inferior courts court nor upon ahe the court which expressed it il the question how must tile the territorial marsh marshal al of utah bo lie appointed or elected or chosen n has never been presented to the supreme court of the united states and therefore that bourt has not had it in its power powen to decide it it hasneg has hns never i erbee er bee been fl decided neither in that c court on rt n nor in this if elther either cour court thas has ever employed language which even remotely seems to decide this question it if has been in some case noc not involving the question and therefore th uhe bhe language 0 0 wag was quealy clearly obiter Thale tha the learned almed co counsel for the respective spec tiye tive petitioners petition ers referred to many text books and reported cases but in some respects the case at bar I 1 blike bilke any in the books it ills llis Is a case gnew knew lui ini impression res ston slon let us inquire then not in the light of authority for there is nelile none but in the light of reason brought to bear upon the statute how must the territorial marshal be appointed ed or elected or choren chosen the organic act of this territory provides for the election by the people of the members of the legislative isla tive assembly and that til tid the governor secretary chief justice and associate justices U S attorney and U 8 marshal marshai shall be nominated and by and alid with the advice and consent of the senate appointed by the president of the united states and section 7 of the organic act provides thus and be it further enacted that all township district and county oi onn 0 ears eans rlou not herein otherwise provi provided aided for dball shall be a appointed anted or or elected ra the case ease may be e i in n s sueh such manner as shall be provided by the tile governor and legislative assembly or of tile the territory ll 11 these provisions it will be borne in mind apply to federal omm off meers officers members of the legislative assembly and township district and county officers it la is most manifest that none of those these provi provisions sious slops control the question under considers con consideration sidera tion tiou A territorial marshal is nota dota not a federal onni he is not a member of the legislative isla tive assembly lie he is not a township district orco or county tinty officer these provisions of the organic icart act throw no direct light upon the inquiry how must the territorial marshal marshai be appointed elected or chosen 7 but section 7 of that f act contains this further provision tile the governor shall shail nominate and by and with thoa the thea advice avice and consent of the legislative council ap appolito all officers pot herein ielein otherwise provided for 11 can there be any question that if there is anything in the organic act authorizing nuth auth prizing the creation of and desien design designating c a t n the manner lanner of filling intile inthe office I 1 of territorial marshal it is the provision last quoted if such an officer can exist at all must he not of necessity be creasea created like all officers not herein otherwise provided foe nor The Supreme court of the united states has recognized the right of the governor and legislative assembly to create the office but it has not decided how that office must bo be filled but what legislation has there been creating ar or touched touching this onni ce eer r when bil nil biggham 0 dittri youn young was governor of this territory an an act was passed and approved containing this provision to wit be it enacted by the tile governor and legislative assembly of the territory of utah that a marshal shall shai be eh elected by a joint voto of both houses of the legislative assembly whose term of office shall he be one year afterwards ex tended extended to four years unless sooner removed by the legislative assembly or until his s successor is elected and quail qualified nned fled 11 see see bee 1 chap ix p 38 19 laws of utah it is thought hy by some whose opinions are entitled to a high respect that the office sought to be created by this act and the luan iuan manner of filling it are inseparable that neither can r tand stand without the tile other that if the one is ove overthrown it must dra drag down the other with it let us consider this view of the case what must be pres presumed timed to have been the intention of the legislative assembly in lwi enacting this law was it to accommodate and benefit the public or was it to cre create rute ruto a place elace for tho benefit of favor ite we must judicially presume that legislators the intended to serve their constituents rather than some one man that the office and not the officer was the thing considered if the and the incumbent incur abent are inseparable then the office did not exist till the incumbent was chosen and were the incumbent to die the tho ome office would die with him I 1 there would be no vacancy to nill nili forthe for the tho reason that there thero would be no offiel office and there could be no territorial marshal until the office were recreated by legislation and filled by proper propel do designation alg aig nation and what would by be the consequences of such a state of affair the tho united states marshal marshai could not act u in local cases either elther civil or criminal tile the rights of parties could not be enforced and criminals could not be brought to justice unless wo we are irresistibly impelled to it we ought notto reach a conclusion that might lead to such consequences it seems to have been the thel intention of the le legislative assembly to do two things thing sf 1 to cream eream th the tha office of territorial marshal marshai 2 to fill that office by a joint vote of both houses the supreme court of the united states recognizes the night hight of the A assembly Q se bl Y to create the office and tl the e 0 mg organic anic anle act provides how it 8 shall h a 11 b be f filled if any part of the utah statute conflicts with the organic act of course tho the former must in such part bo be null and void the doctrine trine trino thata that a statute may be valid in part and void in part la ia elementary if the territorial marshai marshal Is ia a township district district dl or county of officer fleer then the manner of electing him provided by the utah statute may IP ay be valid organic act soe see 7 A con constable stabio choson for a town or pree prec precinct an el or small political division or district ct ka isa township or d strict officer arr arf officer chosen or appointed for a limited division of a county or of tho the territory such as a represent representative at ive lve district or counell council district or judicial district Is isa a district officer the utah statute provides sec 2 said marshall shall have power to appoint one or more deputy jadach judicial district ot ott territory A sheriff is a county officer the territorial marshal marshai Is 13 not a federal officer he la Is therefore not to bo be nominated and by and with the advice au ant t consent ot of the senate arl ari pointed by tho the president ot of the uni ed states the bail bali ballrick wick iwick of the tho hiar marshal marshai shai 14 1 co cn extensive with the territory ho he is therefore not a township district or county officer and therefore he cannot be ba appointed or elected in such stich manner as aa shall oe be provided by the governor and legislative assembly unless they shall provide the same manner that has haa been prod provided d by Con congress gross the territorial marshall Nl arshal not belonging to any one ene of the classes efflo |