w=< .(eb 5 i? m ^^^•^^%^(^^-^^^%^^^'^m^'Sfe^:P,m^^f^'^i^^ COMMUNICATION IN RESPONSE TO A VOTE OF THE HOUSE OF REPRESENTATIVES. TER,R,IT0R,i4L LEQISL^TOR^E, PASSED FEBRUARY 4tli, 1874, Jurisdiction of the Probate Courts Other Matters pertaining to Legal Jurisdiction and alleged Malfeasance of certain Officers, rHARGET) BY HIS EXCELLENCY, THE GOVERNOR, In his Message of the 4tli Inst. David O. Caldek, Pubi^ic Printer, Salt Lake City, Utah. ?^:f^i Digitized by the Internet Archive in 2007 with funding from IVIicrosoft Corporation http://www.archive.org/details/connnnunicationofaOOsnowrich t) Rf ^^ COMMUNICATION OF ;- ATTORNEY-GENERAL Z. SNOW, cr ^ In response to a i^ote of tlie House of Representatives of the Territorial Legislature^ p)^^^^^ F^^- 4, 1874, 1 r>^ ON THE JURISDICTIO]^ OF THE PEOBATE COURTS, AN^D OTHER MATni:RS PERTAINING TO LEGAL JURISDICTION AND ALLEGED MAL-FEASANCE OF CERTAIN OFFICERS, CHARGED BY HIS EXCEL- --|lENCY, the governor, in his MESSAGE OF TUE 4TH INST. O U X q g AiTORNEY General's Office, Salt Lake City, i^l February 5th, 1874. 'Honorable Orson Pratt, Speaker of the House of Representatfves. Sir : — Your communication of the 4th inst., came duly to hand. You say the House, on the 4th inst., passed the follow- ing motion: — "I move that the Hon. Judge Snow, Attorney-General for this Territory, be requested to furnish this House with his written opinion on the jurisdiction of the Probate Courts of this Territory, and such other matters of legal jurisdiction and alleged malfeasance of certain officers, charged by his Ex- cellency the Governor, in his special message vetoing the memorial to Congress, against the Legislative Body, as en- couraged by them, and practised by the various officers of the TeiTitory." P^ 8^ Q. ^ By this motion it is at once perceived that, to understand what is desired, the message must be examined. His Excellency the Governor, in this message, uses the following language: — "And in view of the fact that I, as Governor, required as I am by the Organic Act, and by my official oath, to see 'that the laws shall be faithfully executed,' have been continuously confronted with open violations of the laws of Congress, with- out the ability to enforce obedience thereto because of defective and inimical legislation, and have, as duty required, repre- sented the facts to Federal authorities, and to the Legislative Assembly of the Territory. To ask or expect me to join you in condemning my own o'licial acts, by x)ronouncing them ^absolutely untrue,' and made 'with malicious intent,' is a sad commentary upon the Judgment and good taste of those who ask it. That I cannot do so is certain. "The charge that there exists 'insubordination and other violations of the Constitution and laws of the United States,' in this Territory, is true or false. Let the facts be submitted. All will agree that the iinal object of the government is the protection of the citizen in his rights. "That the laws of this Territory, as they now stand, are inadequate to accomplish that end, cannot be denied. "There has not been a jury impanelled in this Territory for more than three years, whose verdict would have been valid, nor can there be under the laws now in force. Such are the decisions of the District and Supreme Courts of the Territory, and such, therefore, is the law. Life, liberty and property are at the mercy of the lawless and dishonest, without the possibility of protection. You have been called upon to furnish the remedv. The power to do so is in our hands. If we do not give the needed legislation. Congress must, or anarchy will ensue. "Again; In the 7th section of the Act organizing the Terri- tory, Congress gave to the Governor the power, by and with the advice and consent of the Legislative Council, to appoint all officers above the grade of county officers. In disregard of the rights thus conferred upon the Governor, the Legislative Assembly, by enactment, have usurped that power, by making all such officers elective by the joint vote of the two houses of that body, independent of the Governor. That this usurpation has caused much of the existing difficulty and confusion, cannot be questioned : In my message to the Legislative As- sembly, at its last session, I called special attention to these obnoxious statutes, asking their repeal, and the enactment of laws upon that subject which would be in conformity with the Organic Act. But my recommendations went for naught ; and the persons thus ill^^g.illj' elected, Including all of the Tenitor- 3 lal officers, were continued and are now in office, in effect obstructing the administration of justice, and preventing the correction of existing evils. "Again : It has been repeated!}^ held by the District Courts, and affirmed by the Supreme Court of the Territory, that the Probate Courts, under the Organic Act, have no equity or criminal jurisdiction, and yet, in contempt of such decision, the Probate Courts throughout the Territory exercise a jurisdic- tion concurrent with the District Courts; determining questions in equity, issuing writs of habeas corpus^ in some instances discharging persons held by the District Courts for felonies not bailable, and impanelling Grand Juries, and putting persons upon trial for liberty and life. "Again : In 1862 the Congress of the United States enacted a law making plural marriage a crime. And yet it cannot be denied that plural marriage is now practiced to a great extent in this Territory, in direct violation of that law. It is not su^cient to sav that the law is unconstitutional. The Supreme Court of the United States has not so decided. Until that is done, it is the law of the land, and should be obeyed. "In my message to the Legislative Assembly at its session in 1872, I called attention to the violations of this act, and urged the enactment of a law prohibiting it in the future. But, I regret to say, nothing was done. Can we, in truth, state that no law of the United States is violated in Utah, or ask Congress to investigate, and inquire into the truth of that which no one denies ? I can not. "Again ; It is well known that a large number of homi- cides have been committed in this Territory; and, in many instances, no attempt to bring the persons charged with such crimes to trial has been made. Indeed such are the defects of the laws that no legal conviction can be had." From this and from the motion, I am to give a written opinion, or fail to comply with the reijuest. It appears to me that an}^ opinion I have or may give is only extra official, as neither his Excellency nor the Courts nor the Legislature are bound by it, and much less is Congress. Notwithstanding this, I deem it a duty to say that during my short official career as Attorney- General, I have, as often as required, expressed opinions on legislative, judicial and ex- ecutive power, the harmonious working of all which is essential to good order in any government. But before entering on the subject of my views as to the jurisdiction of the Probate Courts, in civil and criminal cases, and the subject of the election and appointment of officers for the Territory, I will lay down a few rules which commend themselves to me. First — An Act of the Legislative Department, within its legislative powers, is absolute. It is the law, and all within its provisions are bound by it. But it may be ambiguous, un- certain, and difficult to understand, by reason of accident or omission. It then has to be construed or interpreted. If it is not within their legislative powers, the act is void. Seco^^d — The judgment of a court of original jurisdiction, in a case when it has jurisdiction of the subject matter of the suit and of the person, is the law of that case, however erroneous, unless on appeal or writ of error it be reversed, but it does not establish a principle. TiiiKD — The Judgment of a Supreme Court, that being a court of last resort, is conclusive, it is binding on all. It is equally as binding on the Governor and President and the Legislature as on individuals and other courts. It settles that case, and it also settles the principles upon which future analagous cases are to be governed, until the law be changed or the case overruled. Fourth — The act of the President or the Governor in his gubernatorial authority, and within his lawful powers, is also binding on all. By a little reflection it will be perceived that it may some- times happen that powers conflict, particularly among legisla- tive departments like Congress and the States and Territories, and their statutes seemingly conflict. These involve very intricate questions. Whenever they are met, they must be solved, and a conflict of views will always arise, denoting, as I think, healthy action. On a correct understanding of these three powers depends the solution of this entire matter. Whenever either of these three branches of government, whether through error of judgment, or by accident, or by design, paralyzes any other branch, a jar in the machinery ensues. The opinions I entertain on these subjects, being the right of electing or appointing officers, and the right to confer on the Probate Courts, civil and criminal jurisdiction, have long since been expressed and given to the public, which remain un- changed. No recent argument has thrown any light on the subject. His Excellency, the Governor, in his message on this point, has not even indicated an opinion, much less expressed it. His language is, "It has been repeatedly held by the District Courts and affirmed by the Supreme Court of the Territory that the Probate Courts under the Organic Act, have no equity or criminal jurisdiction, and 3^et, etc." Whoever examines the 9th section of that act will lind that the Organic Act does not attempt to create or J give jurisdiction of any kind to the Probate Courts, but only authorizes their creation by the Ter- ritorial government, and authorizes their jurisdiction to be conferred. The language of the Act in section 6, is, *^The Legislative power of said Territory shall extend to all rigMful subjects of legislation consistent with the Constitution of the United States and with this Act" Then follow a few inhibitions, but none on the subject of the jurisdiction of the court. In section 9, before referred to, the language is, "The jurisdiction of the several courts herein provided for," (meaning the Supreme, District and Probate Courts, and Justices of the Peace,) "both appellate and original, and that of the Probate Courts and Justices of the Peace, shall be as limited by law. At that time there was no provision in any law of Congress, nor is there yet any provisions, applicable to the jurisdiction of the Probate Courts in this Territory. The inference therefore is irresistible that the words "limited by law," meant a law of the Territory. The Act of Utah, creating the Probate Courts, and pre- scribing their jurisdiction, was approved February 4th, 1852, and is as follows : ''Sec. 23. — There shall be a Judge of Probate in each county within the Territory, whose jurisdiction within his court, in all cases, arises within their respective counties under the laws of the Territory; said Judge shall be elected hj the joint vote of the Legislative Assembly, and commissioned by the Governor, they shall hold their offices for the term of one year, and until their successors are elected and qualified. They shall be qualified and sworn by any person authorized to administer oaths, and give bonds and security in the sum of not less than ten thousand dollars, to be approved by the Auditor of Public Accounts; and the Auditor shall give the person filing bonds a certificate that such bond has been approved by him and liled in his office." The jurisdiction is thus defined — "Sec. 27.— The Judge of Probate has jurisdiction of the Probate of Wills, the administi-ation of the estates of deceased persons, and of the guardianship of minors, idiots and insane persons. "Sec. 28. — The Probate records shall be kept in books separate from those of the other business of the court. "Sec. 29. — The several Probate courts in their respective counties have power to exercise original jurisdiction both civil and criminal, and as well in Chancery as at Common law,when not prohibited by legislative enactment; and they shall be gov- erned in all respects by the same general rules and regulations as regards practice as the District courts." The act also provides for a sheriff, a clerk, a seal of court,, and the keeping of a record, also for grand and petit juries, giving them all the Common law requisites of a Court of Record, with appeals to the District Courts. By this your honors will see that the jurisdiction of the Probate Courts depends not on the Organic Act,but in the laws of Utah, passed pursuant to the authority therein given. And the only questions are — did the legislature of Utah, in 1852, ex- ceed its legislative power in conferring law and equity jurisdic- tion on these courts, or has Congress given this jurisdiction by authorizing the Legislature to confer it under the maxim of law that what one does by an other, he does by himself,or has Con- gress, by not disapproving the act, affirmed it? These all are principles entering into the solution of the proposition. In relation to them the Hon. John Titus, in the case of Tiernan against Salt Lake City, in 1865, said, "The power reserved in Congress by itself to disapprove devolves upon that body the duty of revising the legislative acts of Utah, and the presumption as cited is, that this duty is performed. Congress, therefore, not having disapproved, must be presumed to have approved the act." This was decided concerning an act which had been passed only about six years. The act on the subject of the Probate Court jurisdiction was passed twenty- two years ago, and Congress has not yet disapproved it. The Supreme Court of the United States in the case of the Miners'Bank vs, Iowa, 12. Howe pp. 48, expressly sanctioned the doctrine that a Territorial law was valid until or unless dis- approved by Congress. The court was unanimous in the deci- sion. The Supreme Court of the United States, in the case of Clinton, vs, Englebrecht, from this Territory, 13. Wall. p. 445-6, unanimously said, the Chief Justice speaking for the whole court — "It is insisted, however, that the jury law of Utah is defec- tive in two particulars. First, that it requires the jury list to be selected by the County Court, upon which the Organic law did not permit authority for that purpose to be conferred. Second, that it requires the jury to be summoned by the Territorial marshal, who was elected by the legislature and not appointed by the Governor. We do not see how these facts, if truly alleged,would make the mode actually adopted for summoning the jury in this case legal. But we will examine the objec- tions. "In the first place,we observe that the law has received the implied sanction of Congress. It was adox)ted in 1859." "[This Probate law, you remember, was adopted in 1852.] "It has been upon the Statute book for more than twelve years." [The Pro- bate jurisdictional law has been on the Statute for more than twenty-two years.] "It must have been transmitted to Congress soon after it was enacted, for it was the duty of the Secretary of the Territory to transmit to that body copies of all laws on or before the 1st of December in each year. The simple disap- proval by Congress at any time would have annulled it. It is no unreasonable inference, therefore, that it was aj)proved by Congress." True, this language was used concerning the jury law, but it is equally applicable to the law creating the Probate Couits, and fixing and setting bounds to their jurisdiction. The Supreme Court in that case examined the jury law of Utah and held it valid. How then stands so much of this matter as relates to the validity of the jury law in the Courts? First, the Governor and Legislative Assembly of Utah, in 1859, in construing their legislative x^owers, passed the act, which was acted upon from that time till 1870, by every legisla- ture, and every governor, and every judge on the bench. In 1870 the CO irts here ruled against it. In 1872, on appeal, the Supreme Court of the United States in the very case w^here the decision had been made in our courts unanimously sustained 8 our jury law, and said in its decision, when speaking con- cerning the court here, "we are of the opinion the court erred both in its theo./ and in its action." But before this decision, there were, and still are coniiict- ing views on the subject of the civil and criminal jurisdiction of the Probate Courts. The legislatures of the following Territo- ries have so construed their legislative powers, as to give civil and criminal jurisdiction to their Probate Courts to a limited extent, niz.^ Kansas, Montana, Idaho, Oregon, and Utah. The judges of Kansas,Montana and Idaho have held that the Legis- lature exceeded their powers when they conferred it. In a few instances Congress, after the decisions above alluded to, conferred on the Probate Courts in those Territories a limited civil jurisdiction. In Utah the course has been in the Legislative department one uniform sentiment, so far as the members of the two houses are concerned. But the governors and judges have not bad a uniform sentiment on this question. From 1852 to 1856, the jurisdictions of the Probate Courts was not called in question in such a form as to require the Court to decide it. In 1856, at Carson Valley, then a part of Utah, Jugde Drummond held that the Probate Courts had not civil juris- diction. From 1836 to 1859 or 1860, the question was not decided, BO far as I know or have the means of learning. In 1859 or 1860 Judges Ecles, Cradlebaugh and Sinclair held each, informally in some cases, that these courts had not either civil or criminal jurisdiction. From 1860 or 1861 to 1869 or 1870, these courts, without ever testing it in any district except the Third, exercised both civn and criminal jurisdiction, as provided by our law. In 1861 the Supreme Court of this Territory held that the Probate Courts of the Territory had jurisdiction under our law in divorce cases. In 1870 the Supreme Court of this Territory held that our Probate Courts had not jurisdiction in divorce cases. In 1865 the District Court of the Third Judicial District held that the Probate Courts of the Territory had, under our law, civil and criminal jurisdiction, and that they had authoritj^ to grant naturalization papers to foreigners. From 18.02 to 1870 no case was taken to the Supreme Court of the Territory, that has fallen under my notice, in which it was necessary to decide whether or not the Probate Courts of the Territory had either civil or criminal jurisdiction. In 1870 a civil case w^as removed from the Probate Court of the County of Salt Lake to the District Court of the Third Judicial District in this Territory, in which the point of its civil jurisdiction was raised. The District Court decided against it. The case was taken to the Supreme Court of the Territory and by that court the judgment was affirmed. This being the only case ever decided in the Supreme Court of the Territory, in- volving that question, it was removed by writ of error to the Supreme Court of the United States, and in March last it was argued in that court. It has not yet been decided. No case or class of cases can be considered as settling a principle until the case or cases have been considered on argument in the court of last resort, which, on this Probate Court jurisdiction question, is the Supreme Court of the United States. But when there is such a conflict of opinion, the case, until settled, ought to be treated modestly. If the decision of the Supreme Court of the United ' States shall be in favor of the civil and criminal jurisdiction of the Probate Courts, as given by our law, it will not settle any thnig concerning it except that it was a rightful subject' of Territorial legislation. Its wisdom or its folly will not enter into the con- sideration, but it will bind the President, our Governor and Judges, and Congress and your Honors. It will leave Congress to disapprove the law and the Legislature of this Territory to amend it, or not. If it be unwise to give them so extensive powers as they now have, and I think it is, their jurisdiction can be modified by your Honors. But with the view of his Excellency on the subject, if I understand his views, he could not approve of anything on the subject, but an unconditional repeal of the law, and the Legislative Assembly, without renouncing its doc- trine of twenty-two 3^ears' standing, could not repeal it. If the Supreme Court decides against it, it will show that your Honors misunderstood jouv legislative powers when the 10 act was passed, and that these courts and the people who have resorted to them, have been wrong for twenty-two years, and that, adhering to them, we are still wrong. Such are the momentous (questions involved. The cases are scarce in which more important questions are to be settled in every point of view, and the consequence flow- ing from the decisions for weal or for woe will not end in twenty-two years more. On the right of electing or appointing officers. There was a case of the United States against myself, in the Third District Court, in which the United States, on the relation of its Attor- ney for Utah, alleged that ''Mr. C. H. Hempstead was, on the day of April, 1870, the Attorney of the United States for Utah. That among the duties of the office was the duty to prosecute in the several counties of the several districts of said Territory , all persons accused of offences, as well against the laws of the United States as against the laws of the Territory. "That on the 12th day of September, 1870, one Zerubbabel Snow," [myself], "under color of some election of said Terri- tory of Utah and appointment and commission thereunder, as Attorney- General of said Territory, without legal right, and well knowing the premises, did unlawfully usurp some of the functions of the said relator'''' [Major Hempstead]. "The said Z. Snow claiming to be the lawful prosecutor in the District Court of the Third Judicial District for offences against the laws of said Territory, did unlawfully enter." To this I answered that "Congress had power to confer on the inhabitants of the Territory, the power to enact laws which belong to a State, in the capacity of a State, and that by the Organic act. Congress conferred full powers of legislation as a State upon the inhabitants of this Territory. That among these powers is the right to create the office of Attorney-General for the Territory and prescribe his duties. That pursuant to the act entitled 'an Act in relation to Marshals and Attorneys,' approved March ii, 1852, 1, on the 19th day of January, 1869, was duly elected by the joint vote of both houses, then in joint session, to the oSice of Attorney-General of the Territory." Then followed the averments of my qualifying as provided by law. To this there was a demurrer. The courts in Utah rendered judgment against me. I took it to the Supreme Court of the 11 United States. That court unanimously reversed the judgment of our courts and sustained me in the office. I beg leave to file the opinion of the Supreme Court for the information of the House — SUPREME COURT OF THE UNITED STATES. "No. 30.— October Term, 1873. "Zerubbabel Snow, Plaintiff in Error, ) In error to the Sup- vs. >■ reme Court of the "The United States, ex rel. Charles H. ) Territory of Utah. Hempstead, U. S. District Attorney. "Mr. Justice Bradley delivered the opinion of the Court. "The only question raised in this case is, whether, in the Territory of Utah, the attorney of the United States for said territory, or the attorney-general of said territory elected by the legislature thereof, is entitled to prosecute persons accused of offences against the laws of the territory. "The government of the territories of the United States be- longs, primarily, to Congress; and secondarily, to such agencies as Congress may establish for that purpose. During the term of their pupilage as territories, they are mere dependencies of the United States. Their people do not constitute a sovereign power. All political authority exercised therein is derived from the general government. "It is, indeed, the practice of the government to invest these dependencies with a limited power of self-government as soon as they have su^iicient population for the purpose. The extent of the powder thus granted depends entirely upon the organic act of Congress in each case, and is at all times subject to such alterations as Congress may see fit to adopt. "The organic act establishing the territorial government of Utah, passed September 9th, 1850, constituted a governor, a legislative assembly, and certain courts, and judicial and ex- ecutive officers. Amongst the latter are an attorney for the territory, and a marshal. "By the Cth section of the act, it is enacted that the legis- lative power shall extend to all rightful subjects of legislation consistent with the Constitution of the United States and the provisions of that act. By the 9th section, if is enacted that the judicial power shall be vested in a supreme court, district courts, probate courts, and justices of the peace, whose juris- diction shall be limited by law; Provided, that justices shall 12 not tiy land titles, nor cases exceeding one hundred dollars in amount; and tint tli3 sux)reme and district courts shall possess chancery as well as common law jurisdiction; and each of the district courts is invested Avith the same jurisdiction in cases arising under the Constitution and laws of the United States as is vested in the circuit and district courts of the United States; and the lirst six days in each term are appropriated to such cases. "The duties of the attorney are not specified in the act. The marsh il is required to execute all processes issuing from said courts when exercising their jurisdiction as circuit and district courts of the United States. "This recital shows that the business of these courts, when acting as circuit and district courts of the United States, is to be kept distinct from their business as ordinary courts of the territory; and gives countenance to the idea upon which the territorial legislature seems to have acted in appointing separate executive officers for attending the courts when sitting as territorial courts. By an act of that legislature, passed March 3d, 1852, it is, amongst other things, provided that an attorney-general shall be elected by the legislative assembly to attend to all legal business on the part of the territory before the courts where the territory is a party, and to prosecute indi- viduals accused of crime in the judicial district in which he shall keep his oTice, in cases arising under the laws of the territory; and that for the other districts, district attorneys shall be elected in like manner with like duties. This law, it is understood, has always been acted upon until the recent decision of the Supreme Court of Utah, denying its validity. Similar laws have been passed and acted upon in other territories, organized under similar organic acts. The attorney appointed by the President for the territory has been accustomed to attend to the business of the general government, the same as is done by United States district attorneys in the several States: and the attorney-general and district attorneys of the territory have attended to the business of the latter, and prosecuted crimes committed against the territorial laws. "It must be confessed that this practice exhibits somewhat of an anomaly. Strictly speaking, there is no sovereignty in a territory of the United States but that of the United States itself. Crimes committed therein are committed against the government and dignity of the United States. It would seem that indict- ments and writs should regularly be in the name of the United States, and that the attorney of the United States was the proper oUcer to prosecute all offences. But the practice has been otherwise, not only in Utnh, but in other territories organized upon the same type. The question is whether this practice is legal, or in other words, w^hether the act of the ter- ritorial legislature was authorized by the organic act. If it 13 was, the plaintiff in error in this case was erroneously ousted from performing the duties of his o^ce of attorney-general of the territory. "The power given to the legislature is extremely broad. It extends to all rightful subjects of legislation consistent with the Constitution and the organic act itself. And there seems to be nothing in either of these instruments which directly conflicts with the territoriaJ law. If there is any in- consistency at all, it is in that part of the organic act which provides for the appointment by the President of an attorney for the territory. But is that necessarily an inconsistency ? The proper business of that attorney may be regarded as relating to cases in which the government of the United States is concerned. The analogous case of the marshal, and the separation of the business of the courts as to government and territorial cases, seem to give some countenance to this idea. At all events, it has sufficient basis for its support to establish the conclusion that there is no necessary conflict between the organic and the territorial laAvs. The organic act is suscept- ible of a construction that will avoid such conflict. And that construction is supported by long usage in this and other territories. Under these circumstances it is the duty of the court to adopt it, and to declare the territorial act valid. In any event, no great inconvenience can arise, because the entire matter is subject to the control and regulation of Congress. "The judgment of the Supreme Court of Utah must be reversed. "D. W. IVlTDDLETOIV, C. S. C. U. S." The Act of the Governor and Legislative Assembly of this Territory, approved March 3, 1852, has the following — ''An ACT in relation to Marshals and Attorneys. "Sec. 1. — Be it enacted by the Governor and Legislative Assembly of the Territory of Utah: That a Marshal shall be elected by a joint vote of both Houses of the Legislative As- sembly, whose term of o^ce shall be one year, unless sooner removed by the Legislative Assembly, or until his successor is elected and qualified. Said Marshal shall, before entering upon the duties of his office, take an oath of olficc, and file bonds in the penal sum of not exceeding twenty thousand dollars, conditioned for the faithful discharge of his duties, which bond with securities is to be approved by the Secretary of the Terri- tory, and filed in his office. "Sec. 2. — Said Marshal shall have power to appoint one or more Deputy Marshals in each judicial district of the Territory, as the necessity of the case may require, whose term of office shall expire with that of the Marshal; but they may at any time be removed at his discretion. 14 "Sec. 3. — It shall be the duty of the Marshal, or any of his deputies, to execute all orders or processes of the Supreme or District Court, in all cases arising under the laws of the Territory, and such other duties as the executive may direct, or may be required by law pertaining to the duties of his o^ce." From the date of this act till the present time, this officer has been elected as provided in this statute, and, until the case of the United States, vs. McAllister arose in 1870, he has been recognized as being the legal ministerial officer of the court, in the cases named in the act, by every governor, every legisla- ture, and every judge on the bench, without an exception. True, some hive claimed that, under the 7th section of the Organic Act, which is as follows, the Governor must nominate and, by and with the advice and consent of the Legislative Council, appoint this officer: "Sec. 7. — And be it further enacted: That all township, dis- trict,and county ofRcers,not herein other wise provided for, shall be appointed or elected,as the case may be, in such manner as shall be provided by the Governor and Legislative Assembly of the Territory of Utah. The Governor shall nominate, and, by and with the advice and consent of the Legislative Council, ap- point all officers not herein otherwise provided for; and in the first instance the Governor alone may appoint all said ofticers, who shall hold their offices untQ the end of the first session of the Legislative Assembly, and shall lay off the necessary dis- tricts for members of the Council and House of Representatives, and all other offices." Of the above opinion were Governor Harding, Governor Shaffer, and Gov. Woods. The other Governors, whatever may have been their opinion, have acquiesced in the election. I am ignorant of a single exception to this statement. The case of the United States vs. McAllister arose in this Territory, March, 1870. This case was argued on two points — "1. Was he the ministerial officer of the court in cases referred in the act, or was that the duty of the U. S. Marshall "2. Should he be elected or appointed^' It was decided against the marshal. It speaks for itself. I heard the opinion read, but I have never seen it since, so I can not furnish it. 15 I herewith file a certified copy of all the proceeding in it which I am able to find of record. There was however a de- murrer filed, and after the judgment of May 16, 1870, it was appealed to the Supreme Court of the Territory. And the Supreme Court affirmed the judgment. THE TERRITORIAI. MARSHALSHIP. "/ti the District Court of the Third Judicial District of the Territory of TJtah^ Comity of Salt Lake. The United States of America, on the Relation of Joseph M. Orr, xs. J. D. T. McAllister. STATEMENT ON APPEAL, Be it remembered that on the 17th day of March, 1870, the Relator filed his complaint in said Court against said Respond- ent in words and figures following, to wit: The United States of America, \ In the Third District Court of on the relation of Joseph J Utah Territory. Regular M. Orr, \ March term, A. D. 1870, xs. \ Hon. C. C. Wilson, J. D. T. McAllister. / Judge. **I, Joseph M. Orr, the above relator, being first duly sworn upon oath, say that U. S. Grant, President of the United States, by virtue of the authority conferred upon him by law, on the 28th day of September, A. D. 1869, suspended Josiah Hosmer from the office of Marshal of the United States for the Territory of Utah until the end of the next session of the Senate of the United States, and on said day designated Joseph M. Orr to perform the duties of such suspended officer, in the meantime, and on the same day, a commission duly issued to the said relator, all of which is more fully shown by the ex- hibit hereunto attached, marked (A); that afterwards, but several months previous to the date hereof, said Relator duly qualified himself, according to law, to enter upon the duties aforesaid, by taking and subscribing the oath, a certified copy of which is hereto attached, marked exhibit (B), and filing the same with the Clerk of the Supreme Court of said Territory, and also forwarding a certified copy of the same to the Secretary of the Interior, and also by executing the bond a certified copy of which is hereunto attached and marked exhibit (C), whicli bond, was duly recorded in the office of the Secretary of said Territory; that by reason of the premises it became and still is the duty and right of the said Relator, under and by virtue of the laws of the United States, to execute all processes issuing out of the 1*6 District and Supreme Courts of said Territory of Utah, or directed by any judge thereof, to do and perform all and singu- lar the executive business of said courts,and to have and enjoy all and singular the fees and emoluments of the same; that one J. D. T. McAllister, as Territorial Marshal of Utah Territory at *the present time, assumes to have the right and authority to do and perform a portion of the aforesaid duties, devolved, by reason of the premises, upon the said Relator, and to have and receive the fees and emoluments of the same; and the said J. D. T. McAllister, so assuming such right, has, for several months last past within the jurisdiction of this court, wrongfully, un- lawfully and without any legal authority therefor, ex. cuted most of thejH'ocess of this court, and has done and performed the executive business of the same in almost all cases in which the United States has not been a partj^, and has received to his OAvn use almost all of the fees and emoluments pertaining to the same, in violation of the rights of the said Eelator. And the said J. D. T. McAllister, still assumhig said rights, still con- tinues, within the jurisdiction of this Court, wrongfully and un- lawfully and without any warrant or authority of law, to exe- cute most of the processes of this Court, to do and perform al- most all of the executive business of the same, and to receive to his own use the fees and emoluments pertaining to such ser- vice, in violation of the rights of the said Relator. ^'Wherefore said Relator prays that an information maybe tiled against the said J. D. T. McAllister, according to law, and that he may by the Court here be required to appear and show by what authority he does the matters and things above speci- lied. "The Territory of Utah, ) Salt Lake County. j ^'^* "Joseph M. Orr, the aforesaid Relator, being first duly sworn upon oath,says that the matters and things before stated, and to which he has subscribed his name, are true, as he verily believes. "(Signed) J. M. Orr. "Sworn to and subscribed before me, this 16th day of March, A. D. 1870. "S. A. MA]^f]s^, Clerk. "(Endorsed.) "Dist. Court 3rd Dist. Utah. "United States on relation of J. M. Orr ads. J. D. T. Mc- Allister. "Affidavit of Relator and Commission. "Filed March 17th, 1870. • ^*S. A. Mann, Clerk. "Afterwards, to wit, on the 24th day of March, A.D. 1870, defendant by his counsel appeared and filed, with the Clerk of 17 said Gourtjhis answer, which is in words and figures follo"vving, to "wit — The U. S., by Charles H. Hempstead, j Territory of Utah, Attorney of the United States in the / Third Judicial Dis- Territory of Utah, on the relation of ( trict Court, March Joseph M. Orr, vs, John D. T. Mc- / term 1870. Hon.C. Allister, Territorial Marshal for Utiih I C. Wilson, Territory. I Judge. **Kow comes the above named John D. T. McAllister, in his own proper person, and says he admits that His Excellency U. S. Grant, at the time and in the manner mentioned in the re- lation herein tiled, suspended Josiah Hosmer from the office of Marshal of the United States in theTerritory of Utah,as alleged, and that he designated and commissioned the said Joseph M. Orr to discharge the duties of that office for the time and in the manner set forth in the relation, and that the said Joseph M. Orr took the oath and gave the bond required by law, and did and performed all other things neccessary to be performed to enable him to discharge the duties enjoined on him by law as. such United States Marshal. But as to the legal conclusions draw^n by the United States attorney for the District of Utah he refers the same to this Honorable Court, without himself ad- mitting or denying them or any of them. To enable this Hon- orable Court to understand and be informed as to such legal conclusions and rights and duties of the said Relator and of himself, he herein states and informs the Court that pursuant to the Act entitled an i\ct in relation to Marshals and Attorneys, approved March od, 1852, and of the acts amendatoiy thereto, he, on the 5th day of January, 18C6, was duly elected by the joint vote of the Legislative Assembly of the Territory of Utah, then in session, to the office of Territorial Marshal, and that be- tween that day and the twenty-sixth day of the same month he took- the oath and gave the bond required by law, and that on the said 26th day of Jan. A.D. 1866, His Excellency Chas. Dur- kie, then Governor of Utah Territorj^, issued to him a Commis- sion as such Territorial Marshal, which oath, bond, and com- mission are now here to the Court shown. Afterwards on the same day he entered upon the duties of said office, and he has continued to discharge the duties and receive the fees and em- oluments appertaining to the office of Territorial Marshal for Utah Territory. "He further informs this Honorable Court that on the 16th day of February, A. D. 1870, he was re-elected to said office by the joint vote of the Legislative Assembly of the Territory of Utah then in joint session. And that afterward, on the 17th day of February, A.D. 18T0, he took the oath required by him 18 before William Ola vton, a notary public, and filed the bond also required by law with Wm. Clayton, Auditor of Public Accounts, and that afterward, on the 21st day of February, in the same year, His Excellency S. A. Mann, Acting-Governor of Utah Territory, issued a Commission to him as such Territorial JVlarshal, which is still in full force and virtue; which oath,bond and commission is now here to the Court shown. From that tune until the filing of this relation, he his discharged the ex- ecutive duties of this Honorable Court and served the process issued by it — as he lawfully miy do — when this Honorable Court has been exercising its jurisdiction in cases not arising under the Constitution and laws of the United States, and when it has not been exercishig its jurisdiction as a Circuit and Dis- trict Court of the United States. And he further says he denies the allegations in relation that he, the defendant, herein as- sumes at this thne, or at any other time he has assumed, to have the right or authority to do and perform any portion whatever of the duties devolved on the relator by reason of the premises set forth in the relation, or to receive any of the fees or emoluments of the o^ce of the United States Marshal of the Territory of Utah. And he denies the allegation that he, this defendant, i > now, or that he heretofore has been, in the exer cise of any executive duty of this Honorable Court, or of the Supreme Court of this Territory, or served any process what- ever which has been issued by either of said Courts or any Judge thereof, that could lawfully be served, or the duty could lawfully be discharged by the relator as United States Marshal for Utah Territory. "And that he now herein disclaims, and at all times hereto- fore he has disclaimed, all right in himself as such Territorial Marshal to act as the executive officer of the Supreme or Dis- trict Court when such Supreme or District Court is exercising its jurisdiction as District or Circuit Court of the United States, or when they are exercising the jurisdiction in cases arising under the Constitution and laws of the United States. 'But he claims, as it is his right and duty to claim, that by virtue of the laws of the United States and of the laws of Utah, and by virtue of the election, oath,bond and commission afore- said, he has the right and it is his duty to act as Territorial Marshal of Utah Territory, and as such to be the executive officer both of the Supreme and District Courts when such Courts are not exercising their jurisdiction as Circuit or District Courts of the United States, nor in cases not arising under the Constitution and laws of the United States. He herein denies that he now executes or at any time here- tofore he has executed any executive duty of either of said Courts, or served any process whatever, wTongfully, unlawfully or without legal authority. And, if, as alleged, he performs most all of th3 executive duties of said Courts and serves most 19 till of the processes,]! is for the reason that b}^ law it is his duty so to do; and now, haA^ing fully answered and set forth his war- rant, he pmys to be adjudged to continue in said office. "(Signed) John D. T. McAlltster. Z. Sxow, xVttorney-Geneml for Utah Territory. Territory of Utah, Third Judicial District Court sitting as a Circuit Court of the United States. "Hon. C. C. Wilson, Judge. "The above named John 1). T. McAllister makes oath and says that he has heard the foregoing answer read and knows the contents thereof, and that so much thereof as is set forth therein from his own knowledge is true and that which is there- in set forth from information of others he believes to be true. JoHi^ D. T. McAllister. "Subscribed and sworn to before me, this 24th day of March, 1870. S. A. Maxx, Clerk. "(ENDORSED.) "The United States on the relation of J. M. Orr,vs. JohnD. T. McAllister. "ANSWER. "Filed March 24, 1870. "S. A. Ua-nn, Clerk. "Z. Sjtow, Attorney-General . "Afterwards, to wit, on the 11th day of May, A. D. 1870, during other proceedings of the court the following appears of record, which is in words following, to wit: "In the relation of J. M. Orr, ) Demurrer of Plaintiff against J. D. T. McAllister. [ sustained. "Affcerwards,to wit, on May 12th, 1870, during proceedings of Court, the following appears of record, which in words fol- lowing is, to wit: "In the relation of J. M. Orr, j Judgment of Ouster against J.D.T. McAllister. f Entered. "And ordered by the Court that said Kespondent turn over within ten days to the relator all processes or other papers of this court now in his hands, as well as property now in his pos- session, by virtue of any process or order of this Coi^rt. 20 "Afterwards, to wit, on April 30, 1872, during proceedings of the Court, the following appeared of record, which is in words following, to wit: Tuesday, April 30, 1872. "Court met pursuant to adjournment. "Present Hon. O. F. Strickland, Judge. "J. L. High, Dept. U. S. Atty. "A. S. Patrick, Dept. U. S. Marshal. "J. D. T. McAllister, Territorial Marshal. "R. W. McAllister, Deputy Territorial Marshal. '^-^m< In last paragraph, page 6, instead of 12 Howe pp. 48, read 12 Howe pp. 4— S.