# Clinton v. Englebrecht

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United States Supreme Court
80 U.S. 434
Clinton v. Englebrecht
ERROR to the Supreme Court of the Territory of Utah.
The principal question for consideration in this case was raised by the challenge of the defendants to the array of the jury in the Third District Court of the Territory of Utah.
The suit was a civil action for the recovery of a penalty for the destruction of certain property of the plaintiffs by the defendants. The plaintiffs were retail liquor dealers in the city of Salt Lake, and had refused to take out a license as required by an ordinance of the city. The defendants, acting under the same ordinance, thereupon proceeded to the store of the plaintiffs and destroyed their liquors to the value, as alleged, of more than $22,000. The statute gave an action against any person who should wilfully and maliciously injure or destroy the goods of another for a sum equal to three times the value of the property injured or destroyed. Under this statute the plaintiffs claimed this threefold value.
The act of the Territorial legislature, passed in 1859, and in force when the jury in this cause was summoned, required that 'the county court' in each county should make out from the assessment rolls, a list of fifty men qualified to serve as jurors; and that thirty days before the session of the District Court, 'the clerk of said court' should issue a writ to the Territorial marshal or any of his deputies, requiring him to summon twenty-four eligible men to serve as petit jurors. These men were to be taken by lot, in the mode pointed out by the statute, from the lists previously made by the clerks of the county courts, and their names were to be returned by the marshal to the clerk of the District Court. Provision was further made for the drawing of the trial panel from this final list, and for its completion by a new drawing or summons in case of non-attendance or excuse from service upon challenge, or for other reason.
For the trial of the cause the record showed that the court originally directed a venire to be issued in conformity with this law, and that a venire was issued accordingly, but not served or returned. The record also showed that under an order subsequently made, an open venire was issued to the Federal marshal, which was served and returned with a panel of eighteen petit jurors annexed; the court, in making this order, acting apparently on the theory that it was a court of the United States, and to be governed in the selection of jurors by the acts of Congress. The jurors thus summoned were summoned from the body of the county at the discretion of the marshal. Twelve jurors of this panel were placed in the jury-box, and the defendants challenged the array on the ground that the jurors had not been selected or summoned in conformity with the laws of the Territory and with the original order of the court. This challenge was overruled. Exception was taken, and the cause proceeded. Both parties challenged for cause. Each of the defendants claimed six peremptory challenges. This claim was also overruled and exception was taken. Other exceptions were also taken in the progress of the cause. Under the charge of the court a verdict was rendered for the plaintiffs, under which judgment was entered for $59,063.25, and on appeal was affirmed by the Supreme Court of the Territory. A writ of error to that court brought the cause here.
Mr. C. J. Hillyer, for the plaintiff in error:
The District Court in disregarding, as it confessedly did, the statute of the Territory prescribing the mode of obtaining panels of jurors, acted on an assumption that the Territorial courts were 'courts of the United States,' such courts in the same sense as are those courts which are established under the article of the Constitution which relates to the Judicial power. This was a fundamental error. They are not such courts. The whole assumption on which the court proceeded having been a false one, and the jury having been summoned in a way wholly wrong, there is no question but that the judgment must be reversed.
But how ought the jury to have been summoned? Plainly in the way prescribed by the Territorial law. The organic act ordains:
'The legislative power of said Territory shall extend to all rightful subjects of legislation, consistent with the Constitution of the United States, and the provisions of this act; but no law shall be passed interfering with the primary disposal of the soil. No tax shall be imposed upon the property of the United States, nor shall the lands or other property of non-residents be taxed higher than the lands or other property of residents.'
Now, certainly the mode of procuring panels of jurors is a 'rightful subject of legislation.' Nothing is set forth in either the constitution or the act which would make legislation on that subject inconsistent with them. The sort of limitation on the legislative power of the Territory meant to be set up, is indicated by the unitalicized or latter part of the above-quoted paragraph. But it has no looking towards the matter of juries. The act is obviously a good one; securing impartiality and excluding the influence of individual prejudice.
Mr. Baskin, contra:
The question which it is supposed by opposing counsel arises, does not in fact arise, because the defendants waived their objection to the jury, by exercising their right to challenge jurors peremptorily and for cause. They should have stood by their challenge to the array, and could not by their own act change the body of the jury, and go on with the trial, and avail themselves of the chances of a verdict in their favor, without also incurring the perils of a verdict against them. The People v. McKay, to which we refer the court, settles this point.
But passing to the question sought to be raised. Was the jury legally impanelled? The resolution of the question depends on certain sections of the organic law of the Territory, and certain acts of Congress. There is no doubt of their existence, and they constitute a part of the case.
The jury was undoubtedly rightly impanelled, if the District Court of the Territory is to be regarded as a District Court of the United States. Was it such a court?
The 6th section of the organic act provides:
'That the legislative power of said Territory shall extend to all rightful subjects of legislation, consistent with the Constitution of the United States and the provisions of this act.'
The 17th section,
'That the Constitution and laws of the United States are hereby extended over and declared to be in force in said Territory of Utah, so far as the same, or any provision thereof, may be applicable.'
The 10th section, that
'There shall also be a marshal for the Territory appointed, . . . who shall execute all process issuing from said courts (the District and Supreme Courts of the Territory), when exercising their jurisdiction as Circuit and District Courts of the United States; he shall perform the duties, be subject to the same regulation and penalties, and be entitled to the same fees as the marshal of the District Court of the United States for the present Territory of Oregon.'
The statute defining the duties of the marshal of the District Court for the Territory of Oregon refers, as in manner above, to the duties of the marshal of the District Court for the Territory of Wisconsin. And reference is had in like manner to the Northern District of New York, in defining the duties of the marshal of the District Court of Wisconsin. And reference from the Northern District of New York is made to the general duties of Marshals of the District Court of the United States.
Now what are the duties of the marshals of the United States? The Judiciary Act declares them. Its 27th section provides:
'That a marshal shall be appointed in and for each district, whose duty it shall be to attend the District and Circuit Courts when sitting therein, and also the Supreme Court in the district in which that court shall sit; and to execute throughout the district all lawful precepts directed to him, and issued under the authority of the United States.'
It is further provided:
'That the marshals of the several districts and their deputies shall have the same powers in executing the laws of the United States as sheriffs and their deputies in the several States have by law in executing the laws of the respective States.'
In assuming, therefore, that the courts of the Territory were courts of the United States, and in giving order to the Federal marshal to summon the jurors, the District Court proceeded rightly.
Again. The organic act further enacts:
'That the judicial power of the Territory shall be vested in a Supreme Court, District Court, probate courts, and justices of the peace.'
No such court as 'the county court,' and no such officer as clerk of said court, can have any legal existence in Utah, because the courts in which the judicial power of the Territory is lodged are specifically named in the organic act, and the county court is not among them.
But yet further. To have proceeded under the act of the Territorial legislature would have been to proceed wrongly.
The 7th section of the organic act of Utah provides:
'That all township, district, and county officers, not herein provided for, shall be appointed or elected, as the case may be, in such manner as shall be provided by the governor and the legislative assembly of the Territory of Utah. The governor shall nominate, and by and with the advice and consent of the legislative council appoint, all officers not herein provided for.'
Now the Territorial marshal is neither 'a township, district, or county officer.' He ought, therefore, to have been nominated by the governor, and by and with the advice and consent of the legislative council appointed. Yet he was not thus nominated and appointed. He was elected in pursuance of an act of the Territorial legislature of Utah, approved March the 3d, 1852, by which it is provided:
'That a marshal shall be elected by a joint vote of both houses of the legislative assembly, whose term of office shall be one year, unless sooner removed by the legislative assembly,' &c.
The Territorial marshal thus created, is required to officiate in the selection and summoning the grand and petit juries for the District Courts of Utah Territory, in all cases, both where the United States is a party as well as cases between individuals, and as well in enforcing the laws of the United States as in enforcing the laws of the Territory. The language of the statute is:
'It shall be the duty of the marshal . . . to execute all processes of the Supreme or District Courts, in all cases arising under the laws of the Territory.
'When a District Court is to be held, whether for a district or county . . . the clerk shall . . . issue a writ to the Territorial marshal.'
It is further made the duty of the Territorial marshal to assist in selecting the grand and petit juries, and then summon and return the same.
That the District Courts of the Territory of Utah exercise their jurisdiction as 'District Courts of the United States' is made plain by decisions of this very court. Thus by the 6th section of the Judiciary Act, this court is authorized to make rules of practice for the District and Circuit Courts of the United States. In pursuance of this authority, it did make rules of practice for the said courts, and in Orchard v. Hughes, in a civil case between individuals, these rules were held to apply to the District Court of a Territory. If the District Courts of the Territory do not exercise their jurisdiction as District Courts of the United States in all adjudications between individuals, it follows that the decision of Orchard v. Hughes was erroneous, so it may be added was the earlier one of Hunt v. Palao.
The CHIEF JUSTICE delivered the opinion of the court.

## Notes

* ↑ American Insurance Company v. Canter, 1 Peters, 546.
* ↑ 18 Johnson, 212, 217.
* ↑ 9 Stat. at Large, 456.
* ↑ Ib. 327, § 10.
* ↑ 5 Id. 14, § 10.
* ↑ 3 Id. 235.
* ↑ 1 Id. 87.
* ↑ Ib. 425.
* ↑ Revised Statutes of Utah, p. 38, § 1.
* ↑ 1 Wallace, 73.
* ↑ 4 Howard, 589.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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