Show THE CHURCH CASES the following important opinion was waa down irom the bench of the territorial supreme court at this essaion in regard to the mora lugs church cabet united states state g of america certain real estate known A an 8 dent VB the tithing yard and offices and william B hrestu Pr estu et a appell uta ants justice smith said this is ig an action by the united states against begun certain real estate belonging to tile the late corporation of the church ul christ of latter day saints to jesus forfeit an and the property the involved in this ibis particular property action jig Is part of ats 1 ts three 3 four 4 five 5 and six 6 block eighty eight 88 plat A salt bait like lake city i urvey commonly known so as and called the tithing yard and offices the defend william B preston robert T ants anta april burlou on and john B R winder are alleged to be claimants as trustees oi of the property fur for the voluntary religious association known as ae the church of jesus christ of latter day salute saints james fp fineza and spencer clawson intervened in behalf ot of themselves and members of the religious ilk ae all 0 her known as ae the church of jesus curtet of latter day saints claiming that we the property belonged to body the defendants that religious preston burton and winder answered fretze freeze and clawson the complaint petition in intervention set bet hy by their up substantially the slime same facts facia as al belied in the answer of the the case was tried by the court without findings of fact and conclusions a jury and judgment entered ot I 1 law were made iu in favor of the united states es cheating sad and forfeiting the property the defendants and intervenors appeal two iwo assignments ion mento of error are made which we deem it necessary to consider upon tb this in appeal first that 1110 it court erred in deciding that the property was subject to forfeiture or escheat for the reason that upon the facts found it appeared appear ou the church of jeus je us chrict carlt of latter ray day sal ts to had bad a vested interest in aard property OB or before july ast 1st ax imbur seaon d the court erred in deciding that the property was subject ty tv forfeiture or escheat tor for the reason huttt upon the facto found all proceed to ILO foreit or escheat cheat the property were barred by section 1047 of the revised statutes of the united states this section of we the revised statutes was wag p pleaded leaded bab by the defendants and the intervenors in bar of the he action we will consider these objections in the she inverse order in which they are atoo section 1047 relied upon la is as follows follow no suit or prose aution tor for any penalty penally or forfeiture pecuniary or otherwise acaru accruing ing under the me laws of the united states shall be maintained except in incises incases cabes where it is otherwise specially provided unless the same game is 18 within five years frum from the time when the penalty or forfeiture accrued the furiel tuie claimed in this case arises under section 8 of the act of july 1862 J which less is as follows follo wc I 1 hat it shall not be lawful lor for any corporation or association for religious or charitable purposes to acquine or hold real estate in any territory ot of the united states slate during the existence of the territorial government of a greater calub than anan and all real estate acquired or held by any such corporation or contrary to the provisions of this act shall be forfeited aud and to the united stacee provided that the vested vented in real estate shall nut be impaired impair ea by the pru provisions visions of blab section 11 rho title titie to the land in controversy was waa acquired by the mayor of san salt lake city in november 1871 lu in 1872 it was conveyed to the trustees teea of 01 the corporation of the church of 01 jebus christ of luter latter day saints or the use and benefit of sai sari i church title remained in said trustees until the third ol of march 1887 it la Is claimed by the appellants that thai more than five years having elapsed since the perfect title to the property was acquired by th church that no action can now be prosecuted prosecute A by the united states to forfeit foreit or sch tat the property we have been cited to no case upon this question exactly like abe ono at bar oral eral cases nave have been cited in which it is ia held that section applied to debts and civil actions and forfeitures as well as aa to cri criminal minai ones it was so held field in the case of adams vs va woude 2 cram b which was a suit to enforce a penalty founded on the act of the of march 1794 first statutes at large prohibiting the slave elave trade kl t was held that the action was barred not having been begun kithil the period prescribed by the statute marshall C J discussing tue tae ques quee saye say it is ia pretended that the prosecutions limited by this law are inobe only which are carried on in the orna form of un an indictment or information and not those where the penalty is demanded by action of debt but it if the voids of the act be examined they will be lound to apply not only to any particular mode ui of proceeding but generally to any prosecution trial or punishment for the offense offe nae and the court held that the action of debt for the penalty was wa a prosecution and was wa barred by the statute of limitations we think section 1047 In includes clutes civil as well as aa criminal proceedings pruce edinga but the difficulty in the case at bar Is ia that the language of section three of the sot of july let 1862 in that all real estate acquired or held by any such corporation or association shall ahall be b forfeited eto etc counsel for appellant do not deny but that hat the property in question was hold held in violation of this statute within fi five ve years preceding the commence went ment ut this suit euit the cafes most nearly in to us are those arleina under the internal revenue laws lawe where proceedings in rem for forfeiting real estate are repeatedly provided for for instance land becomes forfeited for being used for the purpose of distillery where the required bond has not been given section revised statutes of the united state slated under such euch statutes it has baa been frequently held that the property is subject to forfeiture on aucourt of continued use of it notwithstanding the use way may hwe hame begun more then than five years before the commencement of the action in contemplation af f law theland the land itself is guilty and itis it is the guilt ot oi the land that makes it for rei reliable table by reason of its being employed in an unlawful UW use waples proceedings in rem section motion sayf lands are forfeited for use in contravention of law thevilla the violation of law by the use of the land is ia in some home instances by the owner but not airily so it is not the owners guilt but toe the lanus guil guiltily tiby its use nee that random anders it forfeit there Is au an offending peran and an offending tiling thing but the proceedings are against the lutter latter 13 at section the same author analyzing section 3 of the tot net of july abt 1862 above cited saye the thing to be seized anu condemned is territorial teal real estate worth more that rhe offense of 0 the thing jig is being acquired or held by the religious or charitable association to the amount forbidden the jus jos in re arises from the contravention ot of law ja we believe this tu to be a proper construction of the statute before us that the property oither either acquired or held in violation of the law jaw within five 3 ears before the commencement of the motion action is ia subject to forfeiture the remaining question which we deem it necessary to consider it is whether or not the property involved in this action comes within the proviso found in section 8 3 of the he act of july 1 1862 th thai proviso is as follows that existing exist ing vested rights in real estate shall not be impaired by the provisions of this section the findings of fact in this asse shuw show that the land in controversy tro versy in this action was first laid out in 1848 then taken possession of by the representatives of the church jwu as the ch church of jesus christ ot lat ter day saints this church as a voluntary sect seat until january 19 1855 1865 when it was incorporates anu that the corporation subsequently possessed it up to 10 and including july 1 1862 that tha t other improvements of considerable value were built thereon by the churchard Chur Chu chand that the church was in the actual possession and use of the property and the improvements thereon until t toe no let day of J july u ly 1862 in november 1871 the lanu janu was entered under the towa townsite site act by the mayor of salt lake city that brigham young who was then president of the church claimed theland under the townsite law and it was waa conveyed to him by the mayor of said city as trustee for the church afore saiu that it afterwards pawed passed by mesne conveyance to robert T burton who held the title on the ard 3rd day daj of march 1887 as trustee tor for the church the question arises whether or not this parcel of land is to the government of the united states under section 8 of the act of congress of july lot 1862 which we have already quoted at length in this opinion it is claimed by counsel for the government that inasmuch as the LOWn townsite bite law had bad lot been extended over the territory of utah at the time of the passage of this act nor had bad the ablio surveys been extended over the lands in controversy that the church had bad not nor was it possible tor for it to have acquired any vested interest in the lands in controversy at or brior to the time this act took look effect that it had io ID iu in forest which the government was waa bound to respect we do lot deem it necessary to decide whether or not congress congre had authority under the constitution to 10 ignore a right such an aa the church had bad in these lauds in july 1862 the real question la is whether or not this acl manifests an intention on the part of congress to preserve or ignore that right such as aa it was we seriously doubt whether congress had that unlimited control over the property rights ot of persons the public domain which counsel bior the government insists inai upon the rho oiin of salt lake was founded io in 1847 in 1850 the territorial government was organized congress passed the organic act sad aid thereby extend an invitation to the citizens ot the government to to establish their homes in the territory under this invitation citizens took up their abode here in great numbers prior to the passage of ahe act of 1862 it wag of course necessary that these settlers settlors sett lors should found cities and vil lagee at once and enter into possession of portions oi of the public domain cultivate build upon and otherwise improve the same that neither the townsite law nor the public surveys had yet been extended over wo the terri tern belu tory lory in 1862 salt lake city was a town oi 01 beveral thuu band families and large sums had bad already been expended in a a othir improvements by the inhabitants within tile the corporate corporals limits of the city now is is claimed admed that congress Cou gresa nad and the power lu in 1862 to 10 nave withdrawn all idna within the city from sale aud and to lu have driven the its ut of lue city there we think it may well te oe questioned whether sued such action on tut tue part of the government wool boull I 1 not be in on 11 u ui 01 that provision of the tion which ordains that no on shall be deD deprived rived ot of his hie lne ine liberty or property save by due process of law jaw but it is in nut necessary for or us to decide this question in our view ot of this came it it be conceded atiat congress has the authority under the Cons titu tion to perpetrate such an act of cruelty and oppression towards its citizens as that above indicated it lie Is certainly not to 10 be ligat ligni ly jy presumed that the government contemplated tem plated wrong or I 1 jus ties tice this brings us to the question of what is the meaning of tile the proviso that existing vested rights in rest real estate shall not be impaired by the provisions of this section in cooley Cooie ys Is constitutional limitations page the auth author orsay sayi but as a shield of protection the term vested rights la in not used in any narrow or technical sense or as imparting legal power dower or control merely but rather us its impairing a vested interest which it is right and equitable that the government should recognize and protect ai sid d of which the individual cannot be deprived derived rived arbitrarily without injustice 30 ft it is clear by the decisions of the supreme court of the united states thattie that abe church had at the time thus of the passage of the act of 1862 an interest in the lands in controversy in this action which the law recognized and such as the courts of the government would enforce and protect it had bati a rig c t of possession which the court would have enforced against anyone any one who disturbed it in its possession it baa an interest such as it could encumber by way of mortgage and the fejeran courts would have enforced the mortgage it had an interest such as it could contract to sell and convey and specific apeci flo fic performance of BUOM con tract would have been enforced by the courts see stringfellow vs Caine 99 united states huff husey ey vs va S nith 99 united states page 20 lamb vs ve davenport 18 wal an examination of these cases will show that thai according to the be rule established in the supreme court of the united states if in 1861 the church had entered into a contract with one then theia an occupant of the tithing house property for the purchase thereof upon a proper tender being made the vendor bad refused to convey the courts of the united states would have compelled compo a conveyance or had the church refused to accept a conveyance and make payment according to con contract traut the vendor could c ulu have nad had a decree enforcing payment suppose the chlech hail acquired the interest which it haj baj in the tithing house property at the time of the passage of the act of 1862 in the manner just suggested it is clear that mat it would have had no better or greater interest or right than it iu in fact had at that time anil and yet it if the contention of counsel tor for the government it io cr c the same court which chien rendered the decree enforcing such ouch contract against agaibi t the church would be compelled also to hold bold that toe the church had no BO estate or interest in the property vested or otherwise in the case cane ol of lamb vs va davenport 18 wal the defendant davenport had acquired possession ision by heise of certain lots upon public I linda of the united states in the city of portland oregon after the title had been perfected the owner of the title lite undertook to recover he be property davenport defended upon the ground that he was the equitable owner mr jut justice tice miller in delivering the opinion of the court says the inthe equity which davenport sets up in his bis cross bill arises from transactions au an to the issue of the patent certificate of lownsdale Low and indeed antecedent te to the enactment of the donation nation law of congress congles under which Lownsdale Se title originated it in ia not necessary necea aary to recite in this opinion all ail ot of those transactions it is sufficient here to say may that several years before any act of contress Jon ress existed by which title to the land could be acquired settle settlement meat on and cultivation ot a large tract of lands which includes the lots I 1 lucontro oleo verBy had been made and a town laid oft off into lots jots and jots sold and that these sire re a past of the present city ot portland |