The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1881-02-17
SALT LAKE CITY.
To tie Honorable County Court.
County, Utah.

-
with him a person &C used of
crime against the territorial law
! On mqulring for his fees and after
dant expenses lie was referred [
me. l after hearing his statemer
of facts promised to write to YOU
honOrS on the subject and give m
view of the laws of Utah relatin
to the duties of the sheriffs and @
their position and fees, and in rela
ton to being sustained by the Terri
tOrial government of which tn
Counties of the Territory conStitut
a part.
On reflection and examination
find, as l indicated to him, that yer,
grave questions of law are involved
in this matter. so l preface my
! examination with a few genera
remarks.
Whenever any government by Its
constituted authorities creates an
office and defines the duties of the
incumbent, it clearly and neces-
sarily assumes the duty of protect.
ing the officer in the lawful exercise
of his duties, and undertakes to
allow him a reasonable and just
compensation for his time and eX.
pense.
To hold that any person or class
of persons could by law be com.
PEELED against their will, and with
out compensation, to render services
for the government, or spend their
money, is, to say the least of it, to
hold to a doctrine which is SuScep-
tible Of the greatest abuse, and is
not to be presumed so long us any
other construction remains. For if
such a rule prevail then one or more
persons may be required to spend
all their time and all their property
for public good without any hope of
deliverance. If the government
may take one days services it may
take ten years, or more. If it may
take one year it may provide for an
Imprisonment in the Penitentiary
for life for neglect of performing
the service. 1t is not enough that
the amount of services to be rem
dered is small, or the value of prop
erty to be taken is tTifing. The
principle once admitted is without
limit as to the extent of services or
value of property; 10y this you see
it may be carried to such an extent
us to deprive the persons or classes
Of persons of life, liberty and prop
perty. (COOley's Constitutional
Limitations, 393) This would be
in conflict with Article V of the
Amendments to the Constitution of
the United States, which says: No
person shall be deprived of life,
liberty or property, without due
process of law; nor shall private
property be taken for public use
without just compensation. (See
Utah Laws, page 20) True the
term services is not in ordinary
language included in the word
yet in an enlarged sense
of the term it may be included.
Certain it is that a person who
against his will is required to render
public service without just cOmpen-
8atiOn, is to that extent deprived of
his liberty, one Of his inalienable
rights. Equality of rights, privi-
legeS and capacities unqueStionably
should be the aim of the law; and
if special privileges are granted or
special burdens or restrictions i'm
posed III any case it must be pre-
5umed that the legislature designed
to depart as little as possible from
this fundamental maxim of law.
,COOley's Constitutional Limitation,
$685.
In the Ordinance of 1857, Article
IL, (see Utah Laws, page III it was
provided that no man shall be de-
prived of his liberty or property but
by the Judgment of his peers or the
law of the land; and should the
public exigencies make it necessary
for the common preservation to take
any persons property, or to demand
his particular services, full compen-
satiOn shall be made for the same.
Here you see the Continental Con-
gress uses the terms particular ser
vices and full, instead of just, COM
but there cannot be
said to be difference in meaning.
The states of Illinois, Ohio, South
Carolina and Indiana have included
in their constitutions a prohibition
against taking the particular ser
vices of persons without cOmpenSa-
ton, and all the states have pro-
hibited the taking of private prop
erty for public use without just
compensation.
The true spirit of all these laws,
which you see are maXims or Eunda-
is equality of privileges and
Of burdens With these remarks l
proceed to the laws of Utah, omit
ting those relating to the election
and qualification of sheriffS.
BY the act entitled An Act in
Relation to Crimes and Punish
approved March 9th, 1852,
Section Sc utah Laws So, it is pro-
vided that if any officer wilfully
neglect or refuse to serve any
process or delay or omit
to execute any such pro-
cess whereby any person charged
with crime, or any criminal escape,
he shall be punished by impriSOn-
ment not more than one year, or by
fine not exceeding $1,000, or by both
fine and Imprisonment, at the dis
erection of the court.
BY section SO, same act, it is pro-
vided that, if any jailOr or other
officer voluntarily suffer any
prisoner in his custody to escape,
if upon 2 charge or conviction of a
capital offence, he shall be punished
by Imprisonment not more than ten
years nor less than one year; if it
be upon a charge or conviction of
a felony other than a capital
offense, he shall be punished by i'm
priSOnment not more than eight
years or by fine not more than one
thousand dollars.
This act was repealed last session
and a new act passed, not yet pub
llShed, which contains provisions
on this subject equally stringent
l omit the new act for the want OF
means to state its terms. No doubt
can exist but that a sheriff is an
officer within the meaning of that
word as used in these sections.
1t follows that if he can be re.
quired to do this service On pain OF
Imprisonment and no fees are pro
Yided or compensation allowed OF
permitted by law, he to that extent
is required to render particular ser
vices for public good without com.
pensation; and as you will see by
section 50, if the prisoner be il
custody food for him will be neees
sary, and if long detained clothing