The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1889-01-20

"There has been no Judgment of
custer and dissolution. Without this
they are imperative. To make them
effectual they must be grasped and
welded by the proper judicial action. y
In the case OF Terrett VS. Taylor, 9
Cranch, 51-52, Mr.. Justice Story, for
the court, says:
| "a private corporation created bv
the Legislature may loss its franchises
by misuse or nonuse of them, and
they may be resumed by the govern
nent by judicial judgment upon geo
lCarrGnto to ascertain and enforce the
forfeiture. This is the common law Of
the land and is tacit condition an
neXed to the creation of every such
corporation. But that the
Legislature can repeal statutes Great
ing private corporations or con 6rming
to them property already acquired Nd
der the faith of previous laws, and BY
snch repeal can vest the property OF
such corporations exclusively in the
State. or dispose of the same to such
purposes as they may please without
the consent or default of the cor
porators, We are not prepared to admit,
and We think ourselves standing upon
the principles OF natural justice, upon
the fundamental laws of every free
government. upon the spirit and letter
of the Constitution of the United States,
and upon the decisions of most respect
able judicial tribunals, in resisting such
doctrine"
Fifth-For the intervenors we claim
that if the acts of Congress ABOVE men,
toned could and did dissolve the ap-
pellaut corporation, then the property
seized by the receiver, and now in bis
possession, belongs to the members of
the Church of Jesus Christ of Lstter-
day Saints as an unincorporst ted 1e-
ligious sect. and should have been seb
apart for their use and benefit under
the petition of Intervention of Romney,
Dinwoodey, Watson and Clark, because
there is no such thing known to the
| Jurisprudence of the United States as
escheat and because there is no rule of
law by which personal property of any
kind can escheat to the United States.
| Under the laws of the United States,
property may become subject to for
feiture under the provisions of various
statutes, but no forfeiture can exist ex-
cept by statutory provision. The
doctrine of escheat belongs to the COM
mon law which was varied from time to
time by acts of Parliament.
In the statutes of most of the States
in the Union there are laws regulating
escheat; and in most of those States
all of them, indeed, except the State of
Louisana-the common law, and the
acts of Parliament of a general nature
prior to the fourth year of the reign Of
James /, have been adopted, but the
common law has lever been adopted
by the Uuited States. In the case of
Wheaton VS.. Peters. 8 Peters, Reports,
SOL, the court says: 1T is clear there
| No Of
the United States. The common
law could be made part of our federal
system only by legislative adoption.
In the absence, then, of any act of
Congress adopting the common law as
part of the system of federal juris-
prudence, and in the absence of any
statute on the subject of escheats,
there can be no such thing known 10 the
federal system of jurisprudence as an
escheat arising from the defect of heirs,
or defect of ownership in cases of a
dissolved corporation, or an esCheat
propter dehctunI teTlentiS, except in cases
of forfeiture, by express provisions OF
Congressional statutes, which may
properly be called escheats or for
textures, for an escheat prOpter deLictum
tenentiS and a forfeiture are really the
same thing. But. for case such as
the one now before the court, there is
no statute, nor. in the absence of the
common law, is there any law conform
ably to which the court could decree
that this personal property was es-
cheated to the United States. The
reasons given by the court in its de-
cree tor escheating this property to the
| Unitsd States are rather curious One
is that the property is escheated by
reason of the dissolution of the cor
poration." Another is, ION account OF
the failure or illegally of the trusts TO
which it was dedicated at it's aoquisi-
ton, and for which it had been used by
the corporation" The other is by
operation of law" It is very clear
that neither by the dissolution of the
corpor alton, nor by the operation of
any law known to federal jurisDru-
dence, can such property become
escheated to the United States.
The power OF the Congress
OF the United States to legis-
late for the Territories. according to-
the decisions of this court, is, we ad-
nit full and complete; put after all it.
is the power OF legislation, the power
to declare by acts of Congress-, what
the law shall be in regard to the differ
ent Territories. Where the system OK
jurisprudence, known as the common
law of England, mas been adopted by
the Legislature OF any particular State.
then, and not till then, does it become
the law of that State. And the same
thing may be said in regard to legisla-
ton for the Territories. The common,
law is not in force in any Territory un-
less adopted by statute, 1t never Was
adopted in Utah.
But If it should be held that Congress
had the power to uisappove the chatter
of the Church and dissolve the oorper--
alton. tht the property now ID posses
sion of the r ceiver would belong to-
the members of the corporation, and it,
should have been set apart, by tbS
court below, for their use and beneft.
If it should be held by this court that
/ the act of July 1, 1862, was valid and
| Constitutional in all its provisions then,
whether said act operated to dissolve
the corporation or not, it is clear
proposition from the provisions Of that
act that the government has no right
In law or equity, to forfeit or escbeat to.
the United States, by any subsequent
act Of legislation, any of the property.
real or personal, belonging to the cor
| poratiOn at the time of thu massage of