The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1892-09-04
CHURCH CASE CLOSED
Arguments by Varian and RawI-
ms for the Masters Report.
The Case is Taken Under Amusement and
Court Adjourns Until
November 5.

The argument on behalf of the plaintiff
and sustaining the report of the master
was opened yesterday by Mr.. Vsrian. He
held that the scheme proposed by the
church was really suggestion to return
the fund into the identical hands from
which it had been taken, based no doubt on
the theory that conditions have been
changed in regard TO the practice and'teach
ing OF polygamy. 1t is decreed, however,
that the property is not Lawfully applicable
to the purposes for which it was originally
acquired and which, at the commencement
of the suit, it was being devoted. 1t would
not be competant for this court to make an
order which Is not consistent with the
original decree.
The decision of the 5th Utah will show
how the fund had been used. The coun-
sci on the other side held that each donor
of the fund had specific charitable in
tent. We can only find a general inten-
ton. and when the donors gave it was to
be dealt with as the first presidency
might determine. A considerable portion
of it was invested in various speculative
enterprises Ali this fund is in the posi-
ton of having been devoted to charity
generally, and the trustees were ex :
pected TO make the application. Ii the
scheme presented by the government is
not embraced in the decision it will fail.
The fsiiure heretofore has been occasioned
by the diversion of the fund and its mis-
use in aid Of Illegal and unlawful pur-
poses. The church maintains that be-
cause some of the uses were legal the
court is bound to administer the trust in
accordance there = it'll. We maintain that
this court may select one or more and
we have presented two and ask that they
be designated.
II is urged that the decisions would have
Deen different had the facts alleged now TO
exist have also existed AT the time, and be-
cause the trustee has since reformed and
promises to perform his duty under the
law. and therefore the effect of the decree
may be diverted. l do not mean to say that
the court may not find some great public
charity for the benefit of the Mormon peo-
pie and devote it to such. We think the
schools are just such a charity. The courts
of this LAND have not said that anything
was unlawful in this trust except the gene
til course of its administration, and par
ticularly the propagation Of the doctrine OF
polygamy. 1t is true that less than 20 per
cent. of the population OF manageable age
entered into polygamy, as claimed.
In The testimony full investigation of
this matter was had. From this it is shown
that there is no change in the belief of the
original authenticity of this revela-
ton. and that it is still a doc
trine, but has only been modified
by the later one suspending its practice,
and it is maintained that even this may be
changed at any time. Should the people
receive such revelation, there would be
nothing to prevent them from re-entering
into that practice except the civil law of
the land The word Of the head OF the
church has changed the practices of this
entire people in q DAY, because of their be-
lief that the Deity so directed. From the
books Of doctrine, from the lips of every
teacher of that creed, there constantly
comes the statement that the revelation of
polygamy is still doctrine, but has been
only suspended.
They are asking that this fund be applied
to the support of schools wherein the doc
trines of the church may be taught. 1t is
no answer to say the government does not
attack creed-but when q church like this
asks TO be made trustee, it is proper TO
look into the creed and know what they
propose to teach. On this ground alone.
this fund should not go TO the building Of
such schools or churches.
But the gentlemen want you to erect a
fund here that will only prove an attrac-
tion TO draw the poor from Europe and all
the world. Once establish fund like that
and paupers will multiply Indefinitely,
while real education would anguish.
If we are to Judge what Congress would
have desired in this case by their DISPOSE
ton OF the real estate, the public school
fund would be the right place to locate it,
OF all the charities suggested this IS the
one most apt to benefit The entire people.
Under the claim of the defendants every
thing would be really administered by the
church heads though trustees would be
n0ninslly created.
The argument was concluded by Mr.. j.
l. Rawlins of council for the plaintiff. and
on behalf of the masters report he said !:
There are certain objects Of charity and a
great variety OF methods for applying
them. The counsel for tbs defendants
hold that the court has a right only to
direct the method Of application. Where
the object itself ceases to be lawful the
charity tails. and it is not in the province
of the court to administer. There is no
prerogative OF the sovereign in this coun-
try analogous to the power OF the crown.
Here we have property given to dis
solved corporation without q successor,
and Il the object has failed it falls back to
the state. The court not being able to
designate new object, goes to the gov
ernmenr freed of any faint of a trust.
Congress might have the power of the
crown DQI mas QOI exercised IT, Judge
Gray speaks Of two csses-one where the
gift is TO charity generally and not to any
particular object. The court cannot sup
ply g charity not expressed and the doc
trine of cy pres Is without standard to
guide
Where property is given to a trustee to
devote as be may designate, it is not for
the courts to manage. but will go to those
legally entitled TO IL.
The scheme proposed by the defendants
leaves this property as tho property Of the
United States.
This case must rest there and if this
court does not act the Congress of the
United States will have to dispose OF it,
In the testimony and petition it appears
that there was no specific charity. All we
ask is useful and lawful application of
this fund within the purpose indicated
The duty of the court is to TX upon some
definite charity and the method of applying
the fund. Assuming that the charity must
be lawful, useful and beneficial and not
contrary 10 public policy.
In the supreme court OF Ohio where
property had been placed in the hands of a
Catholic bishop in trust for asylums,
schools. etc, each was held upon it's own
separate use and each particular interest
must be accoun ted for in that way.
If this fund had been devoted TO def
nate charity, the court might turn it back,
but if unlawful, it would go back to be
generally disposed Of. if not so held this
court must make proper application to