Show UTAH AFFAIRS no 7 jurisdiction of probate court SALT halt larr lare CITY may blay 21 1874 editor deseret jews alews the reasons why the utah ulah legislature conferred civil and criminal jurisdiction on the probate courts are thus stated in a memorial of lawyers and other influential citizens of sait salt lake city to Con congress congles gres S feb 17 1873 as printed in the congressional gobe globe the territory of utah extends three hundred and sixty miles north and south and two hundred and sixty four miles east cast and west and now contains a population equal to that of any other two territories ri tories in the united states its inhabitants inhabitant are settled mostly in townsand towns and villages for this territory the population con COD confess I 1 jess JoSS has provided three courts first district court held at provo second district cou court rt bield at beaver third district court held at salt sait lake city of these courtr courts the first two mentioned hold hoid one term a year and the last mentioned two terms a year the time during which the 1 5 shand stand second district courts court have llo ulo uter uler i iti iii in session up to within the last in t years will not average two days in each year and there is has been a year or more at times when wilen no district court has been held outside of salt lake tho who district court of salt lake is in session but a small portion of the time of the judges 1 appointed to the first and second districts some have never seen the place appointed lor for holding their courts and none of them have resided in their districts until very re recently unless an occasional visit can be called I 1 a residence consequently ly any application for judicial interference either criminal common law iam or chancery jurisdiction has been wholly impracticable nut but B ut suppose these those courts had been in regular session st at george a city of two thousand inhabitants possessing dg large agricultural and manufacturing interests is situated in the southern portion of the territory in the second judicial district and one hundred and twenty miles from beaver neaver where the coart is held the facilities for traveling would require a citizen of george stgeorge St SL to arrive at beaver in about three days would it not under tiit tho so circumstances be highly inconvenient for him to transact any bustness business in the district court court A citizen of boston can travel trave I 1 to chicago quicker and cheaper and more comfortably fort ably than a citizen of st SL george can travel from his homo home to beaver yet wo we apprehend that the citizen of boston would consider it something of a hardship should he lie be obliged to transact all his business at chicago and ho ilo would not be considered unreasonable onrea atonable should he lle mk ask for some local tribunal other towns in the Territory are aro similarly situated to that of st george and without local courts of romo ramo hind they are wholly leitton er tc n by judicial authority in property or person under these circumstances can it le be said that the Legisla legislature ture tufe of utah acted unwisely in conferring con eon ferrins jurisdiction on the probate courts would they not have fallen far short of their duty had they neglected to throw around their infant U t settlements so widely separated such protection as the probate courts anford afford afforded od in my second letter it wag was clearly shown that it was only the intent of the legislature to conreton con neron feron the tho probate courts concur concurrent ret jurisdiction with the tim district courts in ci civil viland and criminal matters of the I 1 territory this jurisdiction was conferred by the fe legislature under section six bix six of ther the organic act which declares that the legislative power of said territory ahall extend to all rightful subjects of legislation consistent with the constitution of the united states and with this act the statute conferring this jurisdiction was ap proved feb 4 1852 and under the rule of the supreme court of the united states until that act is disapproved by congress it must be held to be valid As it has received the implied sanction of congress for twenty two years it is reasonable to infer that it was approved by that body since some time prior to sept 1871 when a grand j jury was illegally summoned by the tho united states marshal on an open venire to attend the third district court of utah judge merean mckean presiding not a single criminal has been brought toj to justice justlee ustice in that court if we except the case of thomas hawkins already referred to for committing adultery with his wife on complaint of liis his wife tried under a territorial statute and unless the probate court had exercised tho jurisdiction 1 nally gally conferred upon it fi umbers numbers of criminals must have gone unpunished i lied and the peace of society been jeopardized and even asit as it I 1 is the right of appeal being granted in every case it is the common practice for convicted ci criminals to appeal from the tile justices ces and probate courts to the district courts and obtain their release after having been teen convicted as provided by law by justices or a jury of their peers I 1 findey reference rene refe rence renco to an exhibit duly berti certified fled that from june I 1 1872 to november 1873 the tile probate court of salt lake county alone tried 56 cases including the crimes of arson anson larceny robbe rob robbery bery berj ry house stealing forgery assault manslaughter and four cases of murder similar exhibits show wherein federal judges have interfered with the administration of justice in hundreds of other cases in the lawfully constituted courts odthe of tile tilo territory hy by liberating lil lii all ail manner m in ner of criminals after la lawful awful A in defiance of the universal cepi zal zai rule of law th t the tho acts of do dc j ctet i omm off meers officers cannot thus be col coi collateta colla laterA terLy W stacked ta ered cred in addition to those echi exhibit lebits the following ab strattis str aetis actis is submitted ta tair taif rn r n from an affidavit of john burt shier sheriff iff of box E elder eider ider lder county counts in the justices court for malad p precinct at the city cley Corinne of cornn conin nc be before to 0 0 H elliott justice or of the peace 1 vir lir I mr E elliott allott is not n mornion mormon december 28 1872 richard martin and martha martin mide made a ui davits charging othello S glit gilt fc thomas heller william alexander and edmund P johnson the two last named persons were U S deputy marshals with stealing cattle and horses homes after a lengthy exa examination 1 inai and the hearing of a number i of witnesses all orthe above named defendants and one george butterbaugh ba 11 were committed to answer to vie the tho charge of grand larceny in tho the probate court of box E elder eider ider lder county january 6 1873 there the tho grand jury being duly elied found indictments indictment nga aga against install nil nii of the above named defendants for stealing cattle and horses 1 67 in number and of the aggregate value of associate justice C M hawley issued a writ of habeas cor eor corpus january 28 1873 1843 which was served by M T patrick U S Mars lial and the prisoners were discharged from imprisonment and from the custody of the sheriff judge jude hawleys harleys Haw leys court met at cor inne january 29 1873 but hut the people eo fielon had retired from the heid held in disgust judge hawley addressing himself to the prisoners in open court used the following lau iau language if any judge or sheriff of this ibis county or iii county in this terric hall at ft any t imp ime in olt ole future seek to interrupt you inthe in tho the free ex exercise erciso of your liberty as american citizens you sou will please make the fact known to mo me arid and 4 see fee that they are aro punished to ito the utmost extent of tho ho law gen geb gew clemen you are aro now bow discharged and this court adjourned T there thero he r 0 is another exhibit take tak taken cn ii from the records or of the tile probate Proba tc j court of salt lake county or of eighty four civil cases therein ad judica judi ted those eases enges clearly elearly show the confidence in the tile probate courts by non mormont 5 I 1 1 and dissenters sixty two of whom were plaintiff 0 among those thos e plaintiffs plain tiM tin aro ire tre tro several several of the most moat prominent agitators for congressional legislation for utah one is fl a case of walker bros dissenters of whom joseph R walker is the principal partner and a chief agitator gl plain plaintiffs against james robbing P a Ib mormon lormon defendant wherein the plaintiffs recovered judgment on the lith JuneIS June 1866 66 for the exhibit also shows three thieo separate cases wherein stephen do de rolfe wolfe I law liw partner of B R N bas kin recovered covered le judgment against C mormons cormons Mor mons as follows stephen do de wolfe Wolf ets evs vs thomas J franklin et cd a plaint plaintiff fr recovered judgment may 1860 for and costs do de wolfe and assignees of C A perry coas cows co vs A gardner a 11 mormon bishop plat ff I 1 recovered judgment J june 1862 for I 1 S do de wolfe vf v v Nals naisbitt bitu bitt and hindley plain plaintiff tT recovered judg jude ment 2 nov 1868 fbi ful on the exhibit are two cases wherein john B kimball is plain i tiff a non mormon 11 deceased formerly a partner of H IV lawrence a prominent agri agitator which are decided in air mr kimballs rim Kimb balis bails balls alPs favor and against mormons cormons Mor mons viz john B kimball vs george snow plain tiff recovered judgment ju june ne 1859 for 61 and costs and also against charles crismon a mormon for and nad costs another agitator is one of the plaintiffs plaintiff s in the case of seigel bro bror vs v C S scram cram a I 1 1 mormon plaintiff pi recovered judgment july 1868 for 10 and still another samual kahn is one of the plaintiffs in the case of bodenburg and kahn rahn vs brigham H yot young a I 1 mormon lormon A and a nephew ot of E ex x gov brigham young plaintiff ie recovered judgment april ind and 2nd 1860 1863 for 76 the exhibit also shows that wells welle fargo pargo co charles charies B H hempstead ex U S prosecuting attorney at lorney torney gilbert gerrish Gerri sll sil and gilbert sons me merchants re hants TU lugers rogers gers co the california state telegraph co and other pro eminent parties proceeded against members of the Th mormon lormon church in the probate court thus clearly attesting the confidence reposed in the integrity of those courts while the parties were directly interested in the issue Vm omits les ies ITS no 8 aze territorial r niti rua nud the jury kaw law sr sarh lare LAKE CITY may E editor doerck acas mews it was vas stated in my last that some soine time prior to september 1871 no cri erl criminal minal had been brought to justice in the third district court judge mckeand Keans Mc reans dis district thele is but one reason for that fact as alleged by his lionor honor and he gave it j in ii court october 20 1873 substantially ly as follows if in deciding the cae case the supreme C court ourt had gone gono further and said that McAllist mcallister cr the territorial Mar marshll shii shil elected by the legislative As assembly embly was tho the proper person to serve processes in the district court then jien t the difficulty would have been settled zett ted led but lie did not understand elst elat the decision said gald that mea mca mcallister iuster luster was the procor officer while he was wag now of the opinion that lie he had b been ce n wrong in holding that the tile legislature had not the right to create the vs also aiso of tho the opinion that had llad tha the case of orr U S marshal vs mcallister been carried to the supreme court of the united states that tribunal would have held that the tile office of terri tonial ilar Alar marshai marshal shai filled by the nomination of the governor upon that point al onelie onelle disch discharge W ed ci the araud jury duly summoned I 1 under the tho laws lawa of inn llo territory t ince inco ept ept 1871 that the territorial attorney general gen eral had sought to obtain a grarld grand jury in the third district court but had bad failed each ench time while in the second district a grand jury had bad been called in june 1873 and in the first district in the fall fali and winter of the same year ear in each of these courts indictments were found and one man inan is now in the penitentiary under sentence for thirty yeats sentenced on the tho indictment so found and others are still pending whether judge mckean is right or wrong such is th the e cause or of t the deadlock dead lock in his court and it is given substantially in his own ow words he tells us that the supreme court did not say mcallister was waa the proper officer to summon jurors let us inquire enquire what the supreme court did dla say htwe we are therefore obliged to consider the question whether the district dourt court in the selection and summoning of jurors was wai souad gound to conform to the lam law of the territory in deciding this question the court sald said the the theory upon which the various governments for portions of the territory or of the united states have bave been organized has ever been that of leaving c to the inhabitants nil nii the powers of self government consistent with the supremacy and supervision of national authority and with certain fundamental principles established by congress after reciting a history of the formation of those governments in support of this proposition the court says rn in all nil the territories full power was given to the legislature over nil nii ordinary subjects ot of legislation the legis legislative iati late ive lve power of said territory shall shail extend to all rightful subjects of legislation consistent with the constitution of the united states and the provisions of this act i e the acts for the organization of the several territories As there is no provision relating to the selection of jurors in the constitution or the organic act it cannot be said that any legislation upon this subject is inconsistent with either the method of procuring curu buru 6 jurors for the trial of cases is t therefore F a rightful subject of legislation and the whole matter of selecting imp impending paneling im anding ansing and summoning jurors to the territorial legislature nor do we think the other objection sound viz that the required participation of the territorial marshal in summoning jurors invalidated his acts because lie he was elected by the legislature and not appointed by the governor he reacted acted as territorial marshal under U bolor of authority and if lie he was not legally such his acts cannot be questioned indirectly but we repeat that the alleged defects of the utah jury law are not here in question what we are to pass upon is the tile legality of the mode actually adopted for im paneling the jury in this case acting upon the theory that the supreme and anti district courts or of the territory were courts of the united states and that they were governed in the iho selection of jurors by the acts of congress the di district strict court summoned the jury in this case by an open venire we are of the opinion that the court erred both in its theory and in it action clinton vs ve englebrecht 1 13 wall this is the blow that senator carpenter alluded to in the U S senate as having brought up judge mckean standing and while the supreme court did not say that mcallister was the proper officer that question not being in the record they expressly declared he acted as territorial marshal under color of authority and cind if he was not le legally leally ally aily such his bis acts cannot be questioned indirectly they also |