The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1905-07-01
HTHING CASE
ARGUED I'M COURT
Demurrer in Suit of Smurthwaite and
Musser VS.. Smith Debated.
MOTION UNDER AMUSEMENT
QUESTION OF ACCOUNTING FOR
THE FUNDS AT ISSUE.

Arguments were heard by Judge
Morse yesterday on the demurrer TO the
amended complaint in the case of Don
Carlos W. Musser and Charles A
Smurthwaite against President Joseph
r. Smith and the other high officials Of
the Church of Jesus Christ of Latter
day Saints, in which il is sought 10
compel the defendants t. account for
the tithes collected from the church
membership, it being alleged that much
OF the money received by President
smith and the other defendants is used
for the promotion of their commercial
enterprises, instead OF being applied in
promoting the temporal and spiritual
welfare of the church.
The opening argument was made by
Attorney Franklin S. Richards. who ap-
peared for President Smith and the 9TH
er defendants. He was followed by
Judge G s Zane for the plaintiffs, Mus
ser and Smurthwaite-
Attorney Richards attacked the
amended complaint. declaring il an in
sufficient basis for the action and asked
the court to order that the defendants
be allowed to go free without being re-
quired to make further answer, and
that the costs be taxed UP against the
cOmplainants. Judge Zane cOntended
that the amended complaint was all
sufficient, and that the defendants
ought to be required to make the ac-
counting asked for in the amended
complaint.
Judge Morse took the matter under ad-
visement, without announcing when he
would render a decision on the demur-
Ter.
Argument For Church.
Attorney Richards. in his opening ar
mo allegations are made in the com
plant of any wrongful act on the part
and there is no allegation that either
of the defendants has ever misappropri-
ated any OF the property or funds of
'The allegation that President Joseph
T. Smith 'unlawfully uses church funds
not a statement of fact. anu
Admitting for the purposes Of the de-
and requests are to be expended. as the
complainant says, exclusively for church
ing temples, houses of worship. payment
of officers, aiding its missionaries. and
charitable objects connected with said
church. there is no allegation that any
OF these purposes have been neglected
or left unprovided for by reason of any
act Of the defendants. or either Of them
1.-The complaint is insufficient in that
IL does not state facts from which the
court can know the nature and character
clearly appears from the complaint is
that the trust was not created by any
Iles ana powers OF the trustee nave not
is the statement which refers to the
tithine. that said contributions are paid
to such church and said trustee for ap-
preparation and expenditure by 1t eN-
cluSively for church purposes etc This
- q cotCiuSlOn anu nVt q StdtsilenI OF
fact So the real nature Of the trust
is aot set forth Inasmuch the du-
ties and powers OF the trustee have not
been defined, they must be determined
by the general principles of law applicable
TO such cases
Sc The general powers of trustees are
such as are inherent TO the office. They
are such as are conferred by law upon
all persons who hold the position OF trus-
tees Under these general powers a trus-
tee may do such things as are essential
10 the care, TO the protection, or to the
Sec. 42S.
Calls it Mere Conclusion.
-. The last clause of paragraph 8, that
the same cannot lawfully be used in
secular business to-wit: mercantile, com
meTcial, industrial, or business enterprfs-
IS, or specUlatiOns. is a mere conclusion
of law and not statement of fact. and
therefore it cannot be considered in this
discussion.
The other allegations of the complaint
are, in substance, that the tithes amount
TO SlO00,OoO annually; that since his aD-
trust i'm September 1901 Joseph ~
Smith has invested with the advice and
sanction OF Of the The other Defendants. as
kinds OF secular business. Industries, en-
terprises and ventures for profits and
subject to losses and hazards and in
the purchase Of large tracts of land in
Canada and Mexico. for speculation and
10 provide estates and residences for the
church officials and leaders and others
enumerated in the fifth paragraph of
the complaint
"The allegations in the eighth para
graph that the church had no lawful
right to divert said property money
held to any other use or purpose. or
TO invest il in any secular business, and
that said Joseph +. Smith invested the
same in violation of the trust. pursu-
ant to which said property donations and
gifts made and held are mere
conclusions of law and not statements OF
fact.
investments "Are Paying"
THE allegations of the complaint sim