| Show SUITS NITS THE CHURCH arguments delivered oct 20 and 21 1887 respectively before tile the supreme court of utah BY HON JAMES 0 BROADHEAD AND SENATOR JOS E mcdonald DONALD Me of council tor for defense lu in the suits brought against the church by the government COL 0 if your honors please I 1 will proceed to say what little I 1 have to aay the questions before this court they are purely questions of law we have agreed upon a statement of facts facia which are to govern in the determination of the motion for the appointment of a receiver and the only questions tor tie the consideration of vie the court are two first whether the f facts acts themselves as presented are sufficient to authorize the appointment of a receiver and second whether the law is sufficient in ia the alie opinion of this court to TILE APPOINT of a receiver orto take any further action in this case this proceeding on the part of the court on the part of any court whether a court of I 1 equity or a court of law under the provisions of a statute authorizing it to take possession of the property ot of a defendant to take it out of his custody before there is any determination mi nation of the rients involved in the litigation between the parties is in the language of th ih books an extra ordinary remedy it is put upon the same footing in a general sense witla with in an injunction with this difference however an injunction gives some protection to the defendant by reason that belore before uny any steps can caa be taken a hond bond must be given to protect him but it is an extraordinary remedy and would only be adopted by the courts of justice when such facts are presented as show sho w to the satisfaction of the court that the property sought to betoken betaken be taken out of the possession of the defendant in ih any case is ia liable to be wasted or destroyed that the defendant is insolvent or that the defendant is a dishonest or improper or that the defendant his As been guilty of some fraudulent acts which justify the interference of a court of chancery in reaching out the ARM OF THE LAW and taking f pa possession session of the property before th there ere I 1 is any deberal determination of rights in controversy between the parties now in this case ane only aver averment ments 8 upon this point are those contained in the ninth and tenth paragraphs of tile the bill they are as follows ninth that the said corporation of the church of jesus christ of latter day saints aud and the successor of the said john taylor whose name is to this plaintiff unknown as trustem in trust faid and wilford woodruff lorenzo snow erastus snow franklin D richards Brig bangham hain young moses thatcher francis M lyman john henry smith george teasdale heber J grant and john W taylor assistant trustees the defendants wrongfully and in violation of the laws of the united states stales still claim to hold and do exercise the bhe powers which were held and exercised by the said corpo tion of tho church of jesus Jesu christ of latter flay day saints its as stated in paragraph first of this bill ad are unlawfully possessing and using the real estate referred to in the fourth paragraph of this bill and are receiving and unlawfully I 1 awfully applying to its and their own use the rents issues and profits thereof and falsely and wrongfully claim the he right to sell use and dispose of the same tenth that anace the day of february 1887 there lias has been and is no person lawfully authorized to take charge of manage inan preserve or control the property real and personal which on or before the day and year vear last aforesaid was held owned possessed oss and used by the corporation of of the churchly church ft lf jesus christ of latter day saints and by reason thereof all the said property qs as referred to in the thit third d paragraph of this bill is subject to irreparable and irremediable loss and destruction then why now is this property subject to irreparable and irremediable loss and destruction ARE THERE THERB ANY FACTS stated in the i bill it will riot not do to deal in general terms are there any facts stated in this bill which show or tend to show that this property or any of it is subject to irreparable or irremediable loss or destruction the bill itself avers that it is in the possession of these defendants one of whom however is dead but that chat leaves the others in po possession session as averred in this bill it is in possession of these defendants fend ants does it appear that they have been guilty of any f fraudulent acts by which they seek to avoid tile the process of law to let get rid of that property so that when the final judgment of t the he court comes to be had the property will not be there to answer the requirements quire ments of the judgment does it show t that hat any of baese parties are insolvent that when the final judgment of the court comes to be render rendered td the property will be lost or in such a position that it cannot meet the requirements of the law certainly not it ii simply 1 avers that they are not authorized su D r ize to hold bold it the question presented d by the bill itsell is id as to whether they are entitled to this property or not why such a question as that arises in every case boere there is controversy the plaintiff avers he is ENTITLED ia TO TUB THE PROPERTY and that the defendant Is wrongfully holding the same the defendant holds to the contrary but does docs it follow that because there is litigation wherein the plaintiff denies the right of the defend defendant arit the right to the possession of property that a court of equity will stretch out the strong arm of thelah the law and take it out of the possession of the defendant and put it in the custody of the court it is averred that the corporation is dissolved suppose it is here are the representatives of the corporation in the custody of their property but then further the question as to whether there has haa been a dissolution is a question for the consideration of this court I 1 say that there must be some averment some tangible facts stated and shown by affidavit or other evidence in every application for the appointment of a receiver before the court of equity can be lusti justi fled eted in ebern exercising sing tuat extraordinary power I 1 will read from fram high on rece recovers Re cevers vers sections 17 1719 19 and to show what the GENERAL DOCTRINE is on this subject 17 ordinarily unless perhaps in the case of infants and lunatics lunau cs a sun suit must be actually pending to justify a chui coui court t of equity in in appointing a receiver and it follows necessarily that the person whose property it is sought to pace in the re c oen vers ers hands must be made a party to the suit in order that he may have an opportunity of resisting the application the ti granting r of which might result in irreparable e injury to his interests and the facts relied upon as the ground for the relief should bo be distinctly fly and specifically set act forth in order older that defendant may be fully ally f apprised thereof and have an opportunity to resist the application it will not therefore suffice to allege in general terms that plaintiff is entitled on principles of equity to the interposition of the cour court t but the facts relied upon should specifically appear and while fraudulent conduct on the part of defendant or danger to the property or f fund din in controversy is frequently made the foundation for a receiver receivership snip it will not suffice merely to alleze allege such fiandor fraud or danger upon information generally generall with out oat specifying the sources of tile tiie information an and a bill whose only allegations upon these points are thus vague and gen eral cral does not present suco such a L case as to justify the court in interfering b by y a receiver SEC hsc 19 As against a defendant in the possession and enjoyment ot properly which is the subject matter of the litiza tion equity always proceeds with extreme 0 caution aution in appointing a receiver aber c the property has as been held and en enjoyed joep by defendants ih in pos possession session for a long series 0 of years and plaintiff shows no real danger a receiver will not ordinarily to bo appointed in amme and where plaintiffs object is to assert a right to property possessed by de fondant feo fen dant a Receive rif appointed at allis ap pointed only upon the principle of ing the subject matter pending a litigation which is to determine the rights lights of the parties in all such cases a court of necessarily exercises a large di discretion s as to whether it will or will not take possession of the property ty by its receiver and this discretion is governed by a consideration of all the circumstances of the case SEC bec while the practice of appointing receivers before answer in cases ot of emergency is thus thua shown to be be we I 1 established and and generally gen er lly followed by courts of equity in tb this is country country yet t the he grounds inch will induce the courato court to interfere at this stage of a cause must be very strong and there must be clear proof of fraud ar or of immediate danger to the property unless it is taken into the custody of the court and where there are no allegations of defend ants insolvency or er of danger daer to the property and interest concerns con cerne tile relief lehet will not be granted before answer so ho where insolvency is the ground gro undre relied lied upon but the affidavit on which the application is ia based merely states that defendant is not deemed a responsible man by those who know him and the affidavit of de fully negatives the insolvency a receiver will be refused that Is an illustration given for the purpose of showing sho wing there must be SOME FACTS AVERRED some tangible allegations made which the court and the parties can call tale take hold of supported by sufficient di evidence dence in order to justify the court in making the appointment of a receiver I 1 make this as the first lection objection ob which COMPS comes to this effect admitting all the facts which we do admit in the statement of facts submitted to this court yet there are no averments aver ments contained in the bill and no facts shown which tend to establish the fact that there is any danger of this property being lost it may have been conveyed in this way or that way but it if it is IB in the hands bands of responsible parties and nothing appears to the contrary the court in the exercise of a sound sound discretion and in pursuance of well established principles ot equity will suffer the property to remain where it is until there Is a further showing of facts or until the final determination of the controversy between the parties so much if your honors please as to that objection and I 1 will not dwell upon it now as to the points presented so ably by the gentleman on OB the other side involving the QUESTIONS OP OF constitutional LAW questions of deep significance sonoe some of which have not yet been decided by the courts of justice I 1 proceed to offer a few remarks this court the tiie hinbest court of this territory especially constituted by the congress of the united states for the purpose of determining those grave questions arising under the sets acts passed by that congress has been set apart especially for that purpose I 1 am here to discuss purely questions of law questions of constitutional law these questions are always proper subjects to be discussed and any tribunal especially bya tribunal so high as this it is fortunate for this country fortunate for the liberty of the people of this country that the judiciary of this country are impartial they are supposed to be impartial and they really are so far as my observation has extended to them is ia entrusted the determination of this ani and other questions question without being governed by prejudice or passion taken as they are from a profession which in its very nature and from its education is charr char bitable they are disposed to look upon all questions in the light of charity which let me say sav before afi any tribunal is itself the foundation of justice no man can be just who is not charitable to sueh such an enlightened and impartial tribunal ha has been peculiarly entrusted the becis decision it on of these questions they have the power to override the legislature they have the power to override we the executive they bave the power to determine tuat anat sets acts of congress ress and acts ot of the executive part athe of the government are riot not valid because they are in conflict with the f fundamental und law of the laud land now the gentleman on the opposite side spent a great deal of his time in referring to authorities and discussing principles which I 1 apprehend no man on this side of the question for a mo ment controverts contro verts and that is that a charter of incorporation where there has been reserved the power to alter amend or repeal that grant really does not amount to a franci franchise iise but ji is A MERE LICENSE and may be repealed and taken away by the department of the he government which has granted that ri license cense abany at any time arit or if there bez be general law in force referring to the subject of the creation of corporations that general law has to he taken Ws as a part ot of the charter and that the legislature has the ri right under the provisions of that general law to alter repeal or amend that charter at any time I 1 say we do not controvert this proposition ion lOn there is no man here particularly ticul arly in the light ot all the decisions that have been made by the su preme court of the united states and by the supreme courts of the states themselves who would controvert con rovert any such proposition the question arises in tins this case thea whether there be such a special reservation or whether there be such a general law I 1 admit in its full force that the doe doc trine laid down by the decisions ot the supreme court of the united states is not to be controvert ed that irom from whatsoever force that power may be derived whether ibbe it be from rom apro a provision in the constitution which declares that congress shall have power to dispose of the territory and other P property of the united states or whether it be derived which I 1 think ghether re the better opinion the better judicial opinion from the implied power which belongs to the government from THE POWER TO TERRITORY the power of congress 0 o legislate for the territories is complete it matters not whether it be from one or the other source of power admitting its f till full force the congress of the unite j states has supreme legislative control over the territories and when I 1 say sup supreme reme legislative control I 1 mean la in th that at sense nse and in that sense only in which it can be sari sail that any government any representative government whether it be the government of the united states or the govern government men t of a particular state has as supreme control in the matter of legislation alati e is on there are some things that at I 1 are e beyond and above the government of the states and the government of the united states but we use the term in that limited sense it has been held by the supreme court of the united states that they have bave vie the tight right to legislate over the territories to the same extent that the states have the authority to legi legislate slite over the people ovia of the states that Is about tei thy substance of the declaration made mad in id t the e sinking fund cases in the DO 99 U sand also is in the case referred to by the ga gentleman n yesterday the case to in 13 W wall all and the case in fol U S of the national bank vs Yank yankton tod they have the legislative power the st same in e le legislative gisztl power iu in its the states t a t hv have r and d that is |
