The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1893-05-12
A SERIOUS QUESTION.
The Governors Authority for Estab-
fishing Terms Of Court.
AIr. varian Gives an Opinion to Judges
SIlner and Blackburn Concerning the
Logan and Nephi Proclamation

About month ago Governor Thomas
issued proclamation, fixing terms Of
court at Logan, in the Fourth judicial
district, and Nephi, in the First. The
proclamation fixed September as the
month in which these terms should be
held, but made no provision for clerks,
juries, court dockets, or anything else.
Whether the governor possessed the
authority to change the place of holding
court in this manner is question upon
which leading members of the bar differ,
and is one which, in the opinion of many
should be determined by judicial de-
cision. 1t would create no end of compli-
cations If, after one term had been held,
and important cases adjudicated. it should
| be determined that the court had been
sitting illegally.
Judge Miner is evidently somewhat at
sea on the question, for he recently adj
dressed a letter to United States Attorney
Varian, requesting the opinion of the
| latter on certain points concerning the
establishment of the term of court at
Logan, and as to the authority of the
governor for issuing such proclamation,
Mr.. Varian, in his reply, takes the ground
that no such authority exists, as is indi-
Gated by the following extracts from his
letter:
A'There would be but one clerk, and he
would be required to provide dockets and
a deputy for the court at Logan. As I'M
derstand it, the expenses of providing the
dockets and books are allowed by the
government. AS to the iuries
think the court would have power to
cause them to be summoned for either
place, but should not hold grand jury
in but one place in the district.
There lie in my mind, however, a seri-
GUS question presented affecting the le-
gality of fixing the term at Logan. In
1888 Congress provided for the appoint
ment of an additional judge, authorized
his assignment by the governor TO either
district and the times and places as now
fixed by the statutes of said territory for
holding court therein shall remain until
changed by law.
by act of February II, 1892, it was
provided that the governor and legisla
tive assembly OF the Territory of Utah be,
and they are hereby authorized to es
tablish fourth judicial district in said
territory, and to readiust the districts in
said territory in such manner as to
best promote the convenient administra-
ton of justice therein
1.-THE legislature, by act of March 10,
1892, created the Fourth judicial district,
designating the counties of Weber, Box
Elder, Cache, Rich and Morgan as con-
shutting the same. 1t provides that all
causes, both civil and criminal, in which
the cause of action shall arise in either of
the counties constituting the district, as
hereinbefore named, shall be heard, tried
and determined in such district, at such
time and place as the governor by pro-
clamation may fix.
'sThis presents to me two questions:
First-Whether this authority, so dele
gated to the governor, is authorized by
the acts of Congress aforesaid. The act
of 1888 declares that the times and places
for holding court as then fixed by the
statutes of the territory, shall remain
until changed by law. The second act of
1892, declares that the governor and the
legislative assembly are authorized to re-
adjust the districts in such a manner as
to best promote the convenient admins
tration of justice therein. Now, IN view
of these provisions, has the legislature the
authority to delegate this power? Posi-
bly, there was no necessity for Congress
speaking on the subject, but having de-
cIared its will, its intention when ascer-
tanned will OF course limit the authority
of the local legislature.
Second, if the governor is lawfully
exercising the power, does his proclama-
ton meet the requirements OF the law
conferring authority upon him? Should
he not designate in his proclamation
where the causes, civil and criminal, aris-
ing in either of the counties comprising
tie district should be tried? Is it to be
supposed that the legislature intended to
leave it to the pleasure of plaintiffs in
civil causes to select either Ogden or
Logan as the place for bringing their
suits? And in criminal cases, is it to be
left to the discretion of the committing
magistrates to recognize the defendants
to appear at either place, as the magis-
trate may determine? Does not a fair
and reasonable Interpretation of the
statutes (1S92, page SOY require
the governor to determine by his
proclamation where the causes, arising
as aforesaid, shall be tried; that Is to say,
causes arising in certain counties shall be
tried at Logan, in other counties at Og-
den? Certainly for the convenient adj
ministration of justice this should be so.
The local legislature evidently took this
view years ago in relation to the then
First district.
'sThese are serious questions and should
be determined judicially and after argu-
ment, The matter is one in which the
bar is generally interested and it seems to
me that with propriety you might call
upon the attorneys. as friends of the
court, TO investigate and present the
questions. My own judgment is, with
out present examination, that the power
to Ak the place of holding court rests with
the leg islature. -
Mr.. Varian also sent copy of this let
ter to Judge Blackburn of the First dis
trict.