The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1896-03-31

The United States district court met
yesterday morning, Judge John A.
Marshall on the bench. The case of
Peter NJ. Baum, charged with adultery.
alleged to have been committed with
Miss Smith at Beaver some months
ago, came UP on a question of juris-
diction. Attorneys Waldemar Van
Colt, j. NJ. Tanner and Barlow Fer
| guson appeared for Baum, arguing
that the alleged crime was one over
which the federal court had no juris-
diction, and they therefore asked that
the case be dismissed
United States Attorney Judd took
the opposite view. holding that the Of
tense under the territorial conditions
was against the laws of the United
States and that the admission to state
mood did not make the proceedings in
operative.
In Judge Judd's brief, which is as
follows. both his own position and
that of the defense are clearly and
concisely stated:
The position of counsel for the defend
ant. If L grasp it correctly. is: That the
uelendant having been indicted in the
territorial courts under a law of con-
Sress, and the congress having power to
pass the law and make it applicable only
because of its Jurisdiction over the ter
rltory, that when the territory was ad
mitted into the union as a state. the
law ceased to operate, and hence, any
ttuictHleht FOUND under 1t must abate;
that II IS like the repeal of jurisdic-
t1onal law with no saving clause
counsel for the defendant further says
that II this be not so, then the bold posi-
ton IS assumed that congress having no
power to cover the territory of state
by any such law, it had not the power to
continue the prosecution of this case by
enactment for that purpose in its own
courts after Utah had become a state.
admit that the repeal of an act Great
ing and defining a crime has the effect
to abate all prosecutions under it,
whether already pending or not, unless
there is what is called a saving clause
as TO such ofenses as may have been
committed.
Sutherland on stat. const., sec. 166.
This is equally true of all laws that are
jurisdictional in their cha -n--.-i.
Ibid. sec. 165.
THE ENABLING ACT.
But does this concession initiate
against my case? Let us examine it:
That congress has preserved this action
SO that 1t can be prosecuted in this court
Ii IL had power to do so, / do not think
admits of serious doubt. The Utah en-
abling act at section II, first gives the
constitutional convention to be held I'M
der the act, the power to provide by ord
nance for the transfer of all cases, ac-
tons and proceedings pending in the dis
trfct courts of the territory, to such
courts as shall be established under the
or to the circuit and district
courts Sof the United States; and then
provides: THAT no indictment, action or
nnF1fF otof ilaf Iavr of ar1yr
change in courts, but shall be proceeded
with in the state or United States courts
according to the laws thereof respect
lively"
can make none. 1t is a familiar principle
of law that when a statute makes no
exception, the court can make none. This
is usually applied to statutes of lirnita-
tion, but I apprehend it is equally APP
plicable to all statutes of the character
under consideration.
AS to the effect of a repeal upon Of
lenses and incomplete proceedings, see
Sutherland on stat conSt., sec. 16I, 1874;
r. S. sec. Is.
All, indictments, actions and proceed
ings are saved, for none shall abate. This
is the positive mandate of the statute. L
take it that no question can be made as
to the power of Congress to confer upon
the convention both the power and duty
to provide for the suitable transfer of
cases from the territorial courts to the
proper courts OIL the state anu TIE OHIteu
States, respectively; nor that the con-
vention has correctly performed its duty.
At section of the schedule it is pro-
vided that 'all actions, cases, proceed
ings and matters which shall be pend
ing in the district courts of the terri
tory of tUah at the time of the admis--
sion of the state into the union, whereof
the United States circuit or district
courts might have had jurisdiction had
there been a state government at the
time of the commencement thereof re-
spectively, shall be transferred to the
proper United States circuit and district
courts respectively; and all files, records,
indictments and proceedings relating
thereto, shall be transferred to the said
United States courts And still less can
any question be made that the case at
bar falls within the classification here
mentioned.
The act of congress and the convention
together, by the schedule quoted from,
did what was accomplished alone by the
act of congress in the cases of WASH
ington, Montana and the Dakotas loS U.
S., Al, A.
AS to the cases mentioned in the
schedule, of which the case at bar is
one, the United States courts were made
successors to the territorial courts.
The question now comes had the con.
gress the power to preserve in favor OF
the United States, the right to prose-
cute this action in this court?
| shall maintain the affirmative OF this
III.
fidence.
THE EDMUNDs-TUCKER LAW.
The Indictment was found under what
is commonly known in the jurisprudence
of the territory of Utah as the Edmunds-
Tucker law, and is an act to punish
noIyeamy and other sexual offenses
therein denounced. OF course congress
would have no power to pass any such
law and make it operative in a state,
hl1t could only do so in places under the |
Jurisdiction of the general govern
nussion of this question. attention must
he piven to a distinction that is funda-
nenfat When the community OF Utan
PASSED out of the territorial condltlon ana |
Da ssed into the government OIL statenooo,
What was the effect? All laws. customs |
md usages which regulated the rights of
neonle between man and man remained in
force In other words, municipal govern
nent. which concerned the people in
reference to their domestic affairs was
not changed, and this without reference
To- the second section of the schedule to
he constitution. The change was simply
!, change of sovereignty. The community
passed from under the complete severe
gnty of the United States TO that of the
state of Utah, limited of course, by the
of the United States, and
he laws and treaties made in pursuance
hereof.
Even in the case of the conquest of a
by war, international law as
formulated by civilization leaves the peo
lie of the conquered territory to be gov
,rned by their own municipal law, which
s only displaced to the extent decreed by
he conuuering sovereign
Sutherland on Stat. Const. 319 and
'ases cited in note Q.
A fortiori would this be so in the case
If a territory passing into the condition
" state Same authOrity)