The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1896-11-15

filed a petition in the supreme court
for a rehearing of the case of the North
Point Irrigation company VS.. the Titan
and Salt Lake Canal companies, appel
lants.
The plaintiff brought suit in the dis
trict. court for damages and an inJunc-
ton, alleging that the defendants
wrongfully discharged the waste ana
befouled waters of a certain artinclai
drain ditch from Decker's lake INTO
the surplus canal in and upon the Janus
of the plaintiff, thereby damaging the
land and also rendering the water sur
plus canal unfit for irrigation pur-
poses. Go.
The case was heard by Judge Street
on the petition for a temporary IN
junction until the case could be nearu
on it's merits. His honor granted the
temporary injunction, pendente lite,
from which ruling the defendants ap-
pealed to the supreme court, ana lne
respondents moved to dismiss the ap-
peal, on the ground that no appear lies
to the supreme court except from maj
judgments. and the Judgment in this
case being in the nature of an lnterlo-
cutory order, the appeal would not ne
The supreme court took the motion
TO dismiss under Amusement, ana
couple of weeks ago handed down
lengthy and exhaustive opinion, Writ
ten by Justice Miner. sustaining the
motion and Diminishing the appeal, tax =
ing the position that when the trainers
of section Q OF the state constitution
used the term from all final judg-
ments of the district courts there snail
be right of appeal to the supreme
court they intended to deny the right
of appeal in all other cases arising
under that clause, although no express
term of negatiOn is used, and that
therefore the constitution has taken
away the right of appeal from interlo-
cutory orders like the one in question.
NOT ACCEPTED AS CORRECT.
This ruling is not accepted by many
of the leading attorneys OF the Salt
Lake bar as a proper construction OF
the constitution, and in the western
states at least, appeals have IAN from
rulings of the lower court on such mat
ters as applications for temporary in
functions pending the final determina-
ton of an action.
Messrs. Richards and Richards. the
attorneys for the defendant canal COM
panies, filed the following petition for
a rehearing:
Now come the defendants and petit
ton the court for a rehearing of the
above entitled cause, upon the follow
ing grounds, to-wit:
1. The court erred in Diminishing the
appeal in said cause.
2. The court erred in applying to the
constitution OF the state of Utah the
rules applicable to the construction of
the constitution of the United States.
8. The rule of construction applied
by the court in this case is inapplica
BILE to state constitutions.
4. The maxim ''eXpressio unius est
exclusio alterius" is not applicable to
this case.
5. The provision of section 9, article
of the constitution. upon which the
court bases it's decision, guarantees a
right of appeal in certain cases, but
does not restrict the legislature from
granting appeals in other cases.
6. The constitution does not in ex-
press terms or by necessary implication
restrict the legislature from granting
appeals from temporary injunctiOns. 1t
was merely the intention of the franz
ers of the constitution TO restrict
the legislature from taking away the
right of appeal in all cases of final
judgments in the district courts.
We submit herewith a brief of our
points and additional authorities, and
ask that the brief heretofore presented
by US upon this question may be con-
sidered as a part of the brief accom-
panying this petition and as supple
mental thereto.
A SUPPLEMENTAL PETITION.
Supplemental to the above petition
is a certificate, signed by Mr.. F. S.
Richards and others of the attorneys.
who believe the ruling of the supreme
court is erroneous, in the following
terms:
I, Franklin S. Richards. one of the
attorneys for the appellants in the
above entitled action, certify that in
my opinion there is good reason to be-
lieve the judgment of the court filed in
said action is erroneous, and that the
said cause ought to be re-examined.
FRANKLIN S. RICHARDS.
We concur:
DICKSON, ELLIS & ELLIS,
WILLIAMS, VAN COLT & SUTH-
ERLAND.
MARSHALL & ROYLE.
POWERS, STRAUP & LIPPMAN
RAWLINS & CRITCHLOW.
BROWN, HENDERSON & KING.
c. S. VARIAN,
w. c. HALL,
CHARLES c. DEFY,
FRANK PIERCE.
The brief by Messrs Richards and
Richards, which accompanies this pc
tition, holds that the error of the su
preme court originated in APPLYING to
the Utah state constitution the same
rule Of construction that is applied to
the constitution of the United States.
The rule in constituting a state consti-
tuition is to concede to the state legis-
lature all authority which is not ex-
pressly withheld by the constitution.
But in constituting the national charac-
ter, congress is allowed only such au-
thority as is expressly or by necessary
implication. conferred by it.
The brief deliberately discusses the
subject and bears the following in
dorsement:
STRONG ENDORSEMENT.
Fully concurring in the principles of
law expressed in the foregoing petition
and in the brief on this point hereto
fore filed by the attorneys for the ap-
pellantS in this case we respectfully
join in this petition. and ask that a re-
hearing be granted in this case that
counsel for appellants NAV have an or, !,
portunity to present this question fully
to the court in oral argument. and that
we may be allowed to join therein as
amici curae.
DICKSON, ELLIS & ELLIS,
WILLIAMS. VAN COTT & SUTH-
ERLAND,
MARSHALL & ROYLE,
POWERS. STRAUP e LTPPMAN.
RAWLINS & CRITCHLOW,
BROWN. HENDERSON & KING.
c. S. VARIAN,
w. c. HALL,
CHARLES c. DEFY,
FRANK PIERCE.
The point involved in this case is
u INN 10 f1f 1c,1