The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1890-07-30
CHURCH MUTTONS.
The Supreme Court Orders That
They Be Sold.
THE BAD HEBREWS ARE HELD.
Judge Blackburn's Dissenting Opinion in the
Handley Case other Court Matters
of Interest.

The su prene court met at 10 o'clock yes
terday morning with Judges Anderson,
Henderson and Blackburn on the bench.
TO SELL THE SHEEP.
The following order in regard to the sale
of sheep in the possession of the receiver
was entered:
Henry W. Lawrence the receiver in the above
entitled case. is hereby authorized and IN
structed TO sell the sheep now in possession of
his employees. agents or lessees of Frank II.
Dyer his predecessor. He win first give such
notice of the time and place that he Will receive
sealed proposals for bids for the purchase of
reasonable; he is also instructed upon like no
tice to sell the wool now in his possession as
such receiver.
1T GOES AGAINST THEM.
The habeas corpus proceeding of Harry
Friedman and Wolf Goldberg then came
up and was argued by S. H. Lewis for the
petitioners and Assistant District Attorney
Critchlow for the state. Friedman
and Goldberg were arrested by
Sheriff Burt at Springdale, Mon
tana, recently. on the charge of grand
larceny. They We're brought to this city
and examined before Commissioner Green
man, who held them on the charge of OBJ
tanning goods under false pretenses. Mr..
Lewis claimed that this acquitted them of
the charge Of grand Larceny, upon which
they were eXtradited, and appealed to the
district court, but Judge Zane denied the
petition, and the case was then appealed to
the supreme court and the petition was de-
MED there as well.
REHEARING DENIED.
In the case of the Wasatch Mining com
pany VS.. the Crescent Mining company, the
petition for rehearing was denied.
THE COPE CASE.
In the matter of the estate of Thomas
Cope, deceased, which has been appealed to
the supreme court of the United States, the
findings of fact in the district court were
adopted as the findings of the supreme
court, and will accompany the record on
appeal.
ALLOWED AN APPEAL.
In the case of Jacob Johnson VS.. the
United States, which was decided in favor
of the plaintiff on Monday, the defendant
was allowed an appeal to the supreme court
OF the United States.
JUDGE BLACKBURN DIssENTs.
Judge Blackburn filed the following dis
sentlng opinion in the Handley case:
In the matter of the estate of George Hand
ley, deceased.
Opinion by Blackburn, Judge.
/ am compelled to dissent from the opinion
of the court.
The facts are not in dispute, but are as stated.
The only question is: Was the law such in 1874,
when the decedent died that an illegitimate or
polygamous child was entitled to share in his
fathers estateg BY the law of 1882 of the terri
tory of Utah illegitimate children inherit in like
manner from the father whether &C
knowledged by him or not, provided it shall be
made to the satisfaction of the court that he
was the father of such nlegitimate child or
children.
In like manner Creferring to other portions of
the act), means as legitimate children There
is no question made, nos could any be success
fully made. that the right of illegitimate child
rem is a rghtful subject of legislation. There
fore, ii this law in force at the time in 1874,
when the decedent died, there can be no doubt
that the appellant was entitled to share of his
fathers estate.
1t was in force. so far as any act of the terri
torial legislature at that time concerned,
for 1t had not been repealed or changed by that
body.
But the contention of the respondents is that
it was annulled by the act Of Congress of 1862
found in c. L. of Utah, p. los Sec =. which
annuls the act of the territory of Utah, incorpo
rating the Church OF Jesus Christ of Latter-day
Saints and all other acts or parts of acts
hereintofore passed by said legislative Assem-,
bly, of the territory of Utah, which establish,
support maintain. shield or countenance poly
gamy-and the section closes by providing that
the purpose of this act shall be only to annul al
acts and laws and parts of laws which estab
lSh. maintain or countenance the practice OF
polygamy. evasively called spiritual marriage
sacrimentS, ceremonies conscientious or other
contrivanceS.
1t is contended that act of Congress annuls
the act OF the legislature of Utah giving tho
right to nlegitipate children to share IN the
fathers estate, because such right of nheri
lance supports. maintains and encourages pc
lygamy.
The purpose of the act of Congress of 1856
was to define and punish polygamy and to an
null all laws of the territory any way making
ii legal or giving il countenance and support
NntnlnC Is said in the act of (,OnCrpSS in refer
ence to the rights of illegitinate children, an,
II that subject was in the mind of Congress
would have been expressed and not left il
doubt or uncertainty. Courts do not favor tn
repeal of laws by implication and laws ar
never interpreted TO repeal former laws, unleS
the two are so repugnant that they cannot bot
be administered and allowed TO stand.
u. S. VS.. u, Packages. IL, How. IS.
Red Rock VS.. Henry, l05 u, S. 500.
Ex Parte Cross Dog. lC9. u. S. $50.
Chew Heong VS.. United States, l.2 u. s.. 536.
And certainly the same course of interprets
ton applies with equal if not more force TO tn
annulling of laws. The law Of the territor
was before the Congress, and how much easie
1t would have been 10 annul the territorial &C
by name, if ii had intended that, than to hav
left its annullng to judicial Interpretation by
sweeping clause that reads more like tn
rounding up of sentences in stump speec
than solemn act of the highest legislature
the nation. This law of inheritance was befor
Congress, and If the meaning is to be given I
these general words claimed. it clearly ADD
Gated its functions and left to the courts I
make and annul laws by judicial Interpretation
IL cannot he supposed Congress intended an
such thing. Courts are like men and sons
times not overburdened with wisdom. and
would be, If such n thing be supposed
most dangerous exercise OF legislative authorit
10 frame laws so as TO leave 10 judicial interpr
tation their enlargement and annulling. WheI
the law would begin and where it would en-,
would be left TO conjecture and uncertalnt'
The law is uncertain enough Interpreted Z
best it may be the courts, and il the interpret
ton commended for was given, conjecture an
uncertainty would be vastly increased. 1t
always TO be presumed that the Legislature
when il entertains an intention, will express /
and that in clear and explicit terms. (Pottt
Deyaris 2lg).
n this territorial law is annulled right i
taken away ana all such laws are in the natul
OF a penalty and are strict laws. and are not
be extended by intendment.
Another course OF construction in such statui
is that where general words follow the enume
alton of particular cases, such general wore
are held to apply to cases OF the same kind
particularly mentioned. For example an a
OF parliament provided whoever stole sheep
other cattle should be deprived of the benefit
clergy-and the courts held that other catt
oaly meant sheep" Potter Devaris, pal
go to 22a)
The words of the acts of Congress that it
claimed annulled the act of the Utah legislator
and which establish, support maintain, SHE
or countenance polygamy," etc. Afterwarl
there are words of explanation. but words
explanation cannot enlarge the meaning of Il
words they are intended to explain. The
words are TO be interpreted according TO the
common or ordinary meaning.
Allowing illegitimate children to inherit fro
their fathers does not establish polygamy; do
not support it; does not maintain it; does n
countenance it. For il is consistent with 4
severest punishment of poygamy and its G
tire overthrow that illegitimate children shou
inherit from their fathers.
Therefore. do not think it repeats or annu
the act of the territorial legislature giving
illegitimate children the right to inherit / a
strengthened in this opinion by the act of CO
gress of 1889 called the Edmunds act. Sect