| Show ARGUMENT OF HON JAMES 0 BROADHEAD Pol following lowing is the full text of the argument made by hon HOD james 0 broadhead against the edmunds supplemental bill and in favor of leaving the disposition of the personal property of the church now in the hands of the receiver to the supreme court of the united states the committee met pursuant to call of chairman at 1030 am the committee having under consideration senate bill entitled an act supplemental to the act of congress passed in march 1887 entitled an act to amend an act entitled an act to amend section of the revised statutes of the united states in reference to bigamy and for other purposes I 1 approved march 22 1882 11 ibis day heard board argument of J adge james 0 broadhead of st louis ck milli mr broadhead said mr chairman and gentlemen of the commit tee by your leave and courtesy I 1 appear before you this morning to give some reasons why tile the bill which I 1 hold in my hand which passed the senate ought not to become a law I 1 will read the bill VA as it has only one section and as I 1 do not believe the committee has directed its attention to it the bill is as follows AN ACT supplemental to the act of congress geas passed in march eighteen hundred ed and eighty seven A an n act to amend an act entitled an act to amend end section fifty three hundred and fifty two of the revised statutes of the united states in reference to bigamy and for other purposes approved march twenty second eighteen hundred and eighty two be it enacted etc de that any and all funds or other property lately belonging to or in the possession of or claimed by alie or aaion mentioned in section seventeen 0 of the act entitled entitle dAn an act to amend an act entitled an act to amend section fifty three hundred and fifty two of the revised statutes of the states in reference to bigamy and for other purposes approved march twenty second eighteen hundred and eighty two at before or since the taking effect of said act except so far as it shall appear in respect thereto that there is a lawful private right to the contrary shall be devoted to the use and benefit of public common schools in the territory of utah and the secretary of the interior shall take and receive toe the same and dispose thereof to the uses aforesaid in such man ner as shall seem to him with the approval of the president to be most expedient and the supreme court of said territory is hereby invested with power and authority to make all necessary and proper orders and decrees tor for the purpose hereinbefore mentioned believing it will be necessary to give a brief history of what took elace place before the introduction of this bill III into the senate I 1 will state I 1 was engaged as counsel in the case which was argued and submitted and decided by the supreme court of the united state involving some of the questions to which 1 shall direct your attention but I 1 will say my this that I 1 do not ask that any action that may be taken ty by this committee shall contravene any doctrine or any decision made by the supreme court of the united states with reference to this matter but what I 1 ask is strictly in accordance cor dance with the doctrine laid down by judge bradley in his opinion in that case in 1862 the congress of the united states passed the first anti poleg amy bill I 1 have a copy of the third section of that act in my brief before the supreme court the third section of that act provided that it shall not be lawful for any corporation or association for religious or char bitable purposes to acquire or hold real estate in any territory of the united slates during daring the existence of the territorial gov ov eminent r m of t a grea er value than fifty any tefol thou sand dallai dol lais s and all real estate acquired or hold by any such corporation or association contrary to the provisions of this a act shall a i ld be forfeited and escheat to the united e states provided ded that existing vested rights in real estate shall not be impaired by the provisions of this section that is the first statute of mert main ever passed by the congress of the united states I 1 read that jar the purpose of referring to the provisions of the act of 1887 under which the proceedings buted before the supreme court of the territory of utah for the purpose of dissolving the corporation called the corporation of the church of jesus christ of latter day saints which had been incorporated AS early as 1850 and maintained its corporate existence about thirty five years or more and this act purports to die dissolve solve that corporation and that the supreme court of the TL territory ari of utah shall take charge of the property belonging to the corporation and dispose of it according to fo law under that act proceedings were instituted by the attorney g general e and judgment finally rendered by the supreme court of the territory of utah by which they decreed tho the personal property which is now the matter in controversy here should escheat to the united states the decision af the ibe supreme of the united states on that question overruled the decision of the territorial court taking the ground thit that it was not a subject of escheat that the property did not escheat to the government but the property was held for charitable uses and it was wag devoted and given iven originally for religious and charitable charitable uses and inasmuch as the religious uses to which part of the property was devoted was for the spread of the doctrines of the mormon church including the doctrine of polygamy that that was unlawful but the supreme court held to the doctrine of charitable uses which is prevalent lu iu this country and in england and everywhere eve i r i y else where civilization gaspre has prevailed that where property is given anfor for charitable uses the charity never dies but the property remains to be disposed of according to the objects for which it was given if any of these objects are impossible or fi legal then there are two doctrines which the court of ch chancery anbery will invoke that is if there is no indication of any other use to which the charitable funds shall be appropriated pria ted then thy invoke the doctrine of approximation or the doctrine of oy pres and per hars you are all familiar with it which says N the chancellor should appropriate the property to some charitable use as nearly approximating the object of the donor as possible if however there are several charities embra embraced oed in the use or rather several uses are embraced in the sanie same charity the charity never dies and if several of the uses of the sime charity are legal ani others illegal then the court of and the books are full or of aut authority bority upon that subject the courtios chancery will d vote the fund to the legitimate ute use for which it was given it will destroy or ignore the illegal use but will devote t the he object of the charity to the leg legal ai uses now if the trustee dies then t the he state becomes the trustee arid acting through the chancellor it disposes of the fund according to the intention of the donor the death of the trustee as you ELI all know never defeats a charity it is per perpetual and it is the only thin thing 9 ra wh which eh is perpetual charities are per perpetual pe because they are not devoted vot e d to any particular individual indle indie but they are devoted to the purposes which are for the use of all individuals either in the public community to which use is granted ranted or to a particular church denomination or sect or whatever it may be to which use is granted so the ibb charity arity itself neva never dies the court courton of chancery near never pern permits lits a charity to die now my objection to this bill if you please is this it is an attempt on the part of the congress of the united states to divert a charitable use to other than that to which the use was intent intended led now the subject ot of education and the relief of the poor afna the subject of hospitals and the e relief of if the disabled and sick iti infirm firm or aged all these are legitimate subjects of charity charily we all knowd where a particular fund has been donated by the members of a particular 10 u 1 ar church or a particular class 0 of f persons to support the poor and relieve the distressed and educate the children and churches and build schoolhouses school houses it cannot be diverted to some other uw jorfor the benefit of some other aril person A charity given to the inhabitants ab ta to of the city of washington agton to support the poor of the city of washington cannot be used to support the poor of the city of was washington aniton and the poor of the city of ph philadelphia toor the he object of the donot donor must be carried out property intended for one purpose cannot be diverted to 6 another in other words the object sought to be established by the senate bill is the same in principle as if the legislative department would under undertake gake to give the property of A to B for some good reason as they suppose or to make a will after the death of the testator which has been undertaken as you know by some legislatures of some 43 states tates and all such cases have been pronounced unconstitutional and vold void the property was given to a corporation which has been in existence for thirty add years and it was waa given to them for religious and charitable uses religious uses have liace been pronoun pronounced eed illegal and void the corporation is abolished but the charitable uses remain the chairman are the charities specified mr broad broadhead bead nosir there is the difficulty here the question was not raised before the supreme court if the charities or uses had been specified in the case which is before the supreme court then the supreme court boull doubtless have made some in to thern them because judge Br bradleyd bradleys Bradl cys opi justifies this conch conclusion ision and I 1 bijl read from his opinion the chairman do I 1 understand you to concede that legal education is a matter of charity mr broadhead cef sir unquestionably tion ably I 1 presume that there is is no iao question about that but the object of the donors intention has to be taken into consideration the chairman one thing more Is there any evidence of that do donation na in writing mr broadhead oh no sir not at all mr wilson these were simply given to the mornion mormon church as a corporation mr broadhead these were given from time to time and year to year according to the findings of the court in this case and the question was whether the court had bad the power to dissolve the corporation and whether it had power to divert its funds from the charitable uses intended 1 I may mention in this case brought by the government of the united states against the church of jesus christ of lat ter day saints for the purpose of dissolving this corporation there was an intervening petition filed by a large number of the members of the mormon church praying that if the corporation should be dissolved the fund should be devoted to the members of the mormon church for the charitable uses for which it had been donated they come in and pay tithes for example some aarn e pay bay in money some in wheat some in fu corn some in stock sheep cattle etc so much every year which goes into the common fu fund lad this is sold and dispensed to the poor from time to th time and that is the way this charity originated and it is h held eld for the purpose for W which it was originally intended mr rogers I 1 am entirely in the dark about this except as you go along and if you will pardon me I 1 would like toasa to ask you a few questions now and theu then for the sake of information did yia intervening petition titi 1 on to which you have just al ru fuda p 1 and applying in this case show abow or prove whether or not this fu fund nd which became a co corn in mon men fu fund nd was devoted from year to year to these specific purposes to which you have alluded to the schools and charities etc mr broadhead it did not because these questions were not net necessarily involved in the issues then before the court the chairman what is the fact in regard to that mr broadhead here is the fact in regard to it I 1 requested them to send me a statement or of the despos disposition 64 of the fund during the last year 1889 and here I 1 have it under oath and sea seal statement of disbursements made by the church of if jesus christ of latter day saints dur wg ing the year 1889 to the rot fol wing accounts v VZ s poor whites and Ind indians iams 1290 temples 1161 electing Mec houses schools TERRITORY Kr OF UTAH county of salt laite ss ea personally appeared before me the un der signed a notary public in and for the county of salt lake utah territory james jacl jack chief clerk for the first presidency of the church of jesus christ of latter day saints and being by me first duly sworn deposes and says the foregoing statement of disbursements of funds for the year 1889 to the several accounts therein named by the church of jesus christ of latter day saints is true and correct as aa shown by the books in my possession ion JAMBS JACK chief clerk subscribed and sworn to before me this eighth day of july A D 1889 SEAL L MOTH IVERSEN notary mr rogers then under that statement all things are declared illegal except d disbursements jobu for poor whites and indians mr broadhead no sir mr rogers would not the chu churches relies temples tem pies and what are the others mr broadhead Broad bead I 1 will read the act and show the basis of the suit brought by the government of the united states it is found in sections 1317 13 17 and 26 of the act of march 3 11 1887 which I 1 have printed in the brief I 1 had before the supreme court and which will explain it section 13 is as follows that it shall bo be the duty of the attorney general of the united states to institute and proceedings to forfeit and escheat to the united states the prop property erty of corporations obtains obtain ei 1 or held in violation of section three of the act ok of congress approved the first day of july eighteen hundred ai aid ad d sixty two entitled an act to punish and the practice of polygamy in the 1 territories I errit orles of the united states and other places and disapproving and annulling certain acts of the legislative assembly ol 01 the territory of utah or in violation of section eighteen hundred and ninety of the revised statutes of the united states ana all such property so forfeited and es cheated to the united states shall be disposed of by the seere secre tiry t iry of the Inter Interi lorand orand tho the proceeds thereof applied to the use and of we the common schools in the territory in which such sach property may be provided that no building g or t the he ground appurtenant i 1 hereto which 1 is held beld and occupied exclusively for purposes of tle the worship of god or parsonage connected therewith or bu burial a ground shall be forfeited now that refers to real estate alone and it provides for the forfeiture of real estate for any violation of the provisions of the act of 1862 proceedings have already been instituted before the territorial courts to forfeit that real estate on the ground 1 round they held more than author az faed ed under that act of 1862 now I 1 want to call your attention to the distinction between per bonal and real property in this particular case if there is forfeiture pf af course the property belongs to the government all forfeited property goes to the government but if there is charitable use and part of it is illegal and part legal the property whether it be legal or illegal does not dot go to the government except is as trustee the government then holds ue he property as trustee for the I 1 charitable use which is legal it is not forfeited itis it is perfectly ate for the congress compress of the united states to decide that |
