Salt Lake evening Democrat. [volume] (Salt Lake City, Utah) 1885-1887, 1885-06-29
JUDGE POWERS, OPINION.

much comment, ana the VIEWS eAPIeSSeo
are the same old views with which all
are so familiar in Utah. The case of the
United States against A. Milton Musser
attracted considerable attention at the
time of the trial on account OF the promi-
nence of the defendant and on account OF
the cohstruction OF the Edmunds'
law in that case, especially the
clause known as the rehabilitation
clause.-gThe construction was that evi-
dence of sexual intercourse was not
necessary to prove unlawful cohabitation
as contemplated by the law Under which
the Indictment was brought. Tie case
was appealed to the Territorial Supreme
Court and the decision of-the : Court be-
low sustained. From the opinion OF the
Supreme7Gourt rA1r.. Justice Powers dis
serIted, and ina lengthy opinion gave his
reasons for sodoing. The constitution OF
the Territorial Supreme Court is very un-
fortunate asVthe Judges composing 1 t
are District Judges and are under the
necessity of reviewing their own decis-
ions, which fact must tend to bias them
as we'll as the public. It IS unfortunate,
because the public cannot accord to the
opinions of the Supreme Court the respect
they otherwise would did they not know
in. advance, What one Judge. would say.
In such cases as the Mqsser case, the
badness of such constituted Supreme
Court is. seen more, than ordinarily, as
such cases have; a political as well as a
legal side. Judge Powers, saw fit to
dissent, and now that dissenting opin-
ion, which is upon points of practice,
has assumed asizeof great moment, and
the position Of Judge Powers has become
Question. u We were compelled to be
elsewhere than at the court room when
the decision was rendered, and hence we
cannot speak upon the manner in which
it was delivered. By some who were
present it was thought that the manner
in which it was delivered was somewhat
offensive and intended to somewhat
chastise the Court below for its conduct
of the case. 1t is doubtful whether
such was the intention at all,
but might seem so from the fact
that the Judge who tried the case
below was sitting in the Court above as
Chief Justice Certain it is that Judge
Powers manner was emphatic at least,
and his dissenting opinion reads much as
though he were reprimanding an inferior
judge, rather than dissenting from his
associates. Such statements as the fol-
lowing read rather curiously in a dissent
ing opinion, and one that is not authori-
tative:
"This testimony was all clearly immaterial
and irrelevant, and should have been strick-
en- out by the Court and the jury instructed
not to consider it."
No doubt such it was in Judge Powers
opinion, put it certainly was in the opinion
of the Court. 1t seems to us that Judge
Powers makes the case entirely too i'm
portant, as though some great question
were at issue, something of national and
constitutional importance. To dissent
ing opinion on questions of practice he
apparently gives as much Importance as
though he were delivering dissenting
opinion in a Slaughter House case, or a
Dartmouth College case. The dissenting
opinion carrys the impression that it is
the opinion of the Court. 1t was scarcely
modest in Judge Powers to make use of
such language as this in giving his
opinion:
And with the manifest errors that the re-
cord discloses it as not necessary that /
should determine that question"
The question naturally suggests itself
whether it is the province of dissenting
opinion to determine question that has
been decided by the majority of the
Court. Dissenting opinions have their
value, and they have pointed out many
shoals, but because they are dissenting is
not saying that they are better or are
more worthy of Difference than the opin-
ion of the Court. The merit of Judge
Powers dissenting opinion is that it is rare
in Utah to have one member of the Su-
preme Court dissent from his
brother associates. Another rea-
son why so great weight should
not attach to this opinion of Judge Pow
ers is the fact that on some most vital
points of practice, as well as other points
of law, the opinions of Chief Justice Zane
have stood the crucial test of an appeal
to the Supreme Court of the United
States. The public should remember
that Judge Zane when he came to Utah
outlined his own policy and construed
the law as he believed it 20 be without
reference to the theories of either
political party in Utah, and so far as
that construction has been reviewed
by the highest Court in America, his
construction has been sustained. Weight
must be given to such facts as these.
When the dissenting opinion, in speaking
OF the refusal of the Court below to give
a certain instruction in regard to the alb
sence of certain members of the defend
ants family, makes such comment as
the following, il reads to the non-profes-
sional as though it were intended to ad-
monish the Chief Justice as to his duties
in future: d GA .--.
"The only reason that can conceive for
its refusal and the failure of the Court to
say anything upon this subject in his charge, |
after the matters had arisen upon the trial |
and in the course of the argument to which |
have referred, is that the Judge must have I
believed that the jury were entitled TO draw