Salt Lake evening Democrat. [volume] (Salt Lake City, Utah) 1885-1887, 1885-08-15


"agreeably to the usual mode OF process
against offenders in such State" that is
to say, in the State where the Commits
sioner is performing the duties OF his
office.
The term, casual mode of process" has
a well-defned legal meaning. 1t is not re-
stricted to the writ or precept through
which the proceedings are had, but has
reference as we'll to the proceedings 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
Mavman VS. Southland, in which was in
volved the construction of words almost
identical with these, said:
"They (nodes OF process) have mean
ing, and ought to be allowed an operation
more extensive than the preceding words
1.-THE forms of writS and eXecutions). The
term is applicable to writs and executions,
but it is also applicable to every step
taken in cause. 1t includes the pro-
gressive course of the business from its
commencement to its termination" 10
Wheaton, p. l. 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 in
tention of Congress by these words,
sagreedbly to the usual mode Of process
to assimilate ali the proceedings for hold
ing accused persons to answer before
court of the United States to the pro-
ceedings had for similar purposes by the
laws OF the State where the proceedings
should take place" United States VS..
Rundelett, Curtis G.. G.. II, L. 5. VS..
Horizons Sureties, Dillon "a.
The question OF Commissioners =
thority to punish for contempt was raised
before Judge Krekel of the Western Dis
| trict of Missouri. A witness failed to APP
pear and testify in a criminal examina-
ton before Commissioner, in obedience
to subpoena duly issued and served,
and the Judge having been requested to
direct the Commissioner as to his 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:
| at follows that whereby the local law, a
Justice of the Peace or other State magistrate
| has power to attach a witness and punish
|
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"
1t was suggested in the argument that
the Office of Commissioner was minister
ial and not judicial, and as furnishing for
contempt was judicial act, Commits
sioner could not inflict it.
When an officer acts in ministerial
capacity he may be compelled to perform
acts in particular way. When he acts
in judicial capacity he can only be re-
quired to proceed, and the manner of his
doing so is left entirely to his judgment.
Ba. Abr. Justice of the Peace, f.
10 Me. 377.
That the office is not ministerial, but
judicial, would seem plain from what has
already been said, but if anything fur
Their were necessary to support the 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:
1.-THE Commissioner is a magistrate OF
the government, exercising functions OF
the highest importance to the admins
tration of justice He is an examining
and committing magistrate, bound to
hear all complaints of the commission OF
any public offense against the United
States. For the faithful discharge OF his
duty he is alone accountable He has no
divided responsibility with any other
officer of the government, nor is he sub
ject to any others control."- Abb.
G. c., 523.
This brings us to the question, what is
the usual mode of process" against
offenders in this Territory? The Legis-
lature, with wisdom that is far-reach-
ing, hat provided:
l. That District Judges and Justices of
the Peace are Magistrates.-Sec Sc, D.
Il, Laws 1873.
=. That when complaint is made before
a Magistrate that public offense has
been committed, and he is satisfied that
there is reasonable ground to believe that
The person charged is guilty, he must
issue his warrant for the arrest of the
criminal.-Secs. 81, So and 80, D. ~, Id.
>. That the Magistrate must issue
subpRnas for witnesses required by the
prosecution or the defense.-Sec. %, D.
so, Id.
/. That an examination be had. and
according as the evidence tends or fails
to support the accusation.
). That pending the examination, or
while the same is in progress, persons
guilty OF the following acts may be pun
lshed as for contempt, to-wit: Disorderlv,
contemptuous or nsolent behavior to-
wards the Justice (Magistrate) while
holding court, tending to interrupt the
due course of trial, or other judicial
! proceeding, disobedience to subpoena
duly served or refusing to ne sworn or to
answer as witness.
Sec. "a, p. Isl, Laws of 1884.
6. That Justice (Magistrate) NAV
punish for contempt by fine or imprison-
ment, or both, such fine not to exceed in
any one case 800, and such imprison-
ment one day.
Sec. 81, p. 15l, Id.
Sec. l,0S6, 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 yet in the
power OF the person to perform, he NAV
be imprisoned until he have performed it.
1t Is under this section that the mo-
ton was made to imprison the witness
until she answer the questions.
Upon careful reading of all the mat
ter contained in Title 5, in which this
section is found / am satisfied that the
power sought to be used does not relate
to cases arising before magistrates as
such, but has reference to contempts in
the Supreme or District Courts, or before
a Judge at chambers.
1t will hardly be commended, however,
that the mode of process against 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 magis-
trate may intiict penalty under Sections
"a and 81 of the Laws of 1884, the author
lty there conferred belongs also to Su-
preme Court Commissioners.
DIR. HenleV's Celery. Beef and Iron