| Show STANDS COMMITTED II I I Eliza Shaffer Who Declines to Au swer Sentenced to Fine aud Imprisonment Commissioner McKay Gives a Lengthy Opinion as to the Powers of Commissioners fie Sentence Suspended Until Judge Zane Shall Rile on Habeas Corpus The case of the United States against John W Snell for unlawful cohabitation with all the witnesses and attorneys present pres-ent was before Commissioner McKay this morning at 1 oclock to hear the decision in the matter of contempt of Corn t charged acrainst Eliza Schaffer The Court said I am of the opinion that the decision committing Miss Schaffer for contempt of Court will stand THE SILENT WITNESS WAS CALLED FORWARD TIL II And asked the two following questions which were propounded last Wednesday I to which Miss Shafer declined to min Have you ever occupied the same bed with him I so during what time Declined to answer Have you and he not been living together to-gether in the relation of husband and wife in the plural or celestial marriage during the past three years Declined to answer Commissioner appears to the Court that you are guilty of contempt and it is the order of the Court that you pay A TIKE OF 25 AND UE IMPRISONED O a nAnd n-And stand committed until the fine is paidMr KirkpatrickCan the Court commit com-mit a person for contempt where no mal riage relation has been proven to exist Commissioner think the decision will stand Kirkpatrick From the decision of the Supreme Court it is hard to state exactly what has been specifically done for the cases Here some discussion arose between Mr Kirkpatrick for the defense and Prosecuting Attorney Varian pertaining to the interpretation of the law relative to the commitment for contempt Agreeable to the attorneys the Court postponed the infliction of punishment on Miss Shaffer until such time as Judge Zane returns re-turns from out of the city Then the defense will probably apply for the release re-lease of the witness from the Marshals custody on a writ of habeas corpus I DECISION OF TiE COMMISSIONER Before Win McKay Esq Commissioner of the Supreme Court of th Territory of Utah The United States i vs > Contempt Eliza Shaffer The defendant is i a witness subpcenaec by the prosecution in the case of the United States vs John W Snell who is charged with the crime of unlawful cohabitation co-habitation under section 3 of the Ed munds bill During the progress of the examination examina-tion of the case against Snell it was in evidence that one Emma Snell who wa present at the hearing was then and during dur-ing the period covered by the complaint the legal wife of the defendant There was also evidence tending to show that within the time specified in the complaint the defendant Snell was living a portion of that time with the witness Shaffer These matters are only important in this connection as bearing upon the competency com-petency of the witness and the relevancy of the questions put to her by the District Dis-trict Attorney and hereinafter Bet forth and the materiality of such answers as might be given in response thereto The witness having been called to the stand and duly sworn tho following questions others not among other necessary to specify were asked her by Mr Varian the District Attorney First Have you ever occupied tho name bed with him Meaning the defendant I so during what time SecondHave you and he meaning the defendant not been living together in the relation of husband and wife in plural or celestial marriages daring the past three years To each and both of said questions the witness refused and declined to answer and when interrogated by the Com missioner mis-sioner as to whether she had any excuse or reason t offer for refusing and declining declin-ing to answer said questions or either of them the witness replied None which I wish to state The Commissioner thereupon instructed the witness that the questions were proper questions and that she ought to answer them and directed her to do so and she again refused and declined to make answer as before Thereupon the District Attorney moved that the witness be adjudged to be in contempt and that she he committed therefor until she answer the questions I was here objected by Mr Kirkpatrick as counsel for the witness that the order asked for by the District Attorney was not Viithin the jurisdiction of the Com I I missioner The question of the Commissioners authority au-thority to punish for contempt has been fully argued by Air Varian in favor of the exercise of that power and by Mr Kirkpatrick against it To ascertain whether the power exists reference must be had to both National and Territorial legislation I depends entirely upon statutory enactment The office of Commissioner was created by the Act of February 20th 1812 At first its duties were limited to taking acknowledgment acknowl-edgment of bail and affidavits By sundry subsequent acts his powers have been ret enlarged Several of these acts are now embodied in Section I 1014 of the Revised Statutes wherein it is provided that For any crime or offence against the United States the offender may by any Justice or Judge of the United States or by any Commissioner of a Circuit Court to take bail or bj any Chancellor Judge of 1 Supreme I I Su-preme or Superior Court Chief or first Judge of Common Pleas Mayor of a city or Justice I of the Peace or other Magistrate of any State where he may be found I 4 i be arrested imprisoned or bailed as the case may be for trial before j I such court as by law has cognizance of the i offence i By Section 6 of an Act of Congress s I entitled An Act in relation to Courts and Judicial Officers in the Territory of I Utah approved June 23d 1874 it is provided i pro-vided That the Supreme Court of said Tern i tory is hereby authorized to appoint com I missiouers of said Court who shall have and I exercise all the duties of Commissioners of i the Circuit Courts of the United States I is thus seen that whatever authority I is possessed by Commissioners of the Circuit Cir-cuit Courts may b exercised by a Commissioner i Com-missioner of the Supreme Court of this Territory The laws of Congress do not establish i I any uniform mode of procedure by which j Commissioners may be guided in the exercise i ex-ercise of the authority imposed upon them but leaves that much in the same way as it dos the procedure of the Circuit I Cir-cuit and District Courts of the United i t r t < States to 0 regulated by local laws As t Commissioners and other magistrates referred to in Section 1014 R S the statute simply provides that they shall exercise the duties imposed upon them agreeably to the usual mode of process against offenders in such State that is to say in the State where the Commissioner Commis-sioner is performing the duties of his office ofce The term usual mode of process has a welldefined legal meaning It is not re tricted to the writ or precept through vhieh the proceedings are had but has reference as well t the proceedings themselves them-selves and includes all the steps and regulations incident to the examination or trial from the beginning to the close of the case Chief Justice Marshall in delivering the opinion of the Court in the case of Mayman vs Southard in which was involved in-volved the construction of words almost identical with these said They modes of process have a meaning mean-ing and ought to be allowed an operation more extensive than the preceding words the forms of writs and executions The term is applicable to writs and executions but it is also applicable to every step taken in a cause I includes the progressive pro-gressive course of the business from its commencement to its termination 10 Wheaton p 1 The legal effect of the particular words in question was passed upon by Judge Curtis at the Circuit who said My opinion is that it was the intention in-tention of Congress bv these words i agreeably to the usual mode of process to assimilate all the proceedings for holding hold-ing accused persons to answer before a court of the United States to the proceedings pro-ceedings had for similar purposes by the laws of the State where the proceedings should take place United States vs Rundelfitt 2 Curtis C C 41 U S vs Hortons Sureties 2 Dillon 94 The question of a Commissioner thority to punish for contempt was raised before Judge Krekol of the Western District Dis-trict of Missouri A witness failed to appear ap-pear and testify in a criminal examination examina-tion before a Commissioner in obedience to a subpoena duly issued and served and the Judge having been requested to direct the Commissioner as to his authority author-ity in the premises to issue an attachment against the witness to punish him for contempt after reviewing the legislation upon the subject used this language It follows that whereby the local law a Justice of the Peace or other State magistrate has power to attach a witness and punish bam for contempt a Commissioner has like authority The punishment is left to the discretion of the Commissioner within the limit of the power conferred on magistrates in similar cases of the State laws magstrates I I was suggested in the argument that the office of Commissioner was ministerial minister-ial and not judicial and as punishing for contempt was a judicial act a Commissioner Commis-sioner could not inflict it When an officer acts in a ministerial capacity he may be compelled to perform acts in a particular way When he acts in a judicial capacity he can only be required re-quired to proceed and the manner of his doing so is left entirely to his judgment Ba Abr Justice of the Peace E 1 Me 377 That the ollice is not ministerial but judicial would seem plain from what has judicial already been said but if anything further fur-ther were necessary to support the judicial judi-cial theory it may be found in what Mr Justice Field of the Supreme Court of the United States says upon that subject in United States vs Schumann The Commissioner is a magistrate of the government exercising functions of the highest importance to the administration I adminis-tration of justice He is an examining and committing magistrate bound to I hear all complaints of the commission of any public offense against the United States For the faithful discharge ot his duty he is alone accountable He has no divided responsibility with any other officer of the government nor is ho subject sub-ject to any others control2 bbC bb-C C 523 This brings us to the question what is the usual mode of process against offenders in this Territory The Legislature Legis-lature with a wisdom that is farreach ing hat provided 1 That District Judges and Justices of the Peace are Magistrates Sec 56 p 7 Laws 1878 2 That when complaint is mare before a Magistrate that a public offense has been committed and he is satisfied that j I there is reasonable ground to believe that the person charged is guilty he must i issue his warrant for the arrest of the j criminal Sees 57 58 and 59 p 72 Id 1 o That the Magistrate must issue I subpoenas for witnesses required by the II prosecution or the t defense Sec 98 p I I 80 Id I 4 That an examination be had and that the defendant be held or discharged according as the evidence tends or fails to support the accusation 5 That I pending time examination or while the same is i in progress persons I guilty of the following acts may be pun ished as for contempt towit Disorderly I contemptuous or insolent behavior towards to-wards the Justice Magistrate while holding court tending to interrupt the due course of a trial or other judicial proceeding disobedience to a subjxena duly served or refusing to be sworn or to answer as a witness Sec 84 p 151 Laws of 1884 6 That a Justice Magistrate may punish for contempt by fine or imprisonment imprison-ment or both such fine not to exceed in I any une case wv and such imprisonment imprison-ment one day Sec 87 p 151 1 < Sec 1086 on p 346 of the Laws of 1884 provides that when the contempt consists in the omission to perform an act enjoined by law which is perorm the power of the person to perform he may be imprisoned until he have performed it I is under this section that the mo tion was made to imprison the witness until she answer the questions Upon a careful reading of all the mat ter contained in Title 5 in which this section is found I am satisfied that the power sought to be used does not relate to cases arising before magistrates as such but has reference to contempt in the Supreme or District Courts or before a Judge at chambers I will hardly be contended however that tho mode of process against offenders offend-ers in this Territory does not include the power to punish for contempt in a case coming within the statute Therefore where a Territorial masis irate may inflict a penalty under Sections I 84 and 87 of tho Laws of 1884 the author ity there conferred belongs also to Supreme I Su-preme Court Commissioners |
