Deseret evening news. [volume] (Great Salt Lake City [Utah]) 1867-1920, 1906-07-07
They Were Concluded Before
Judqe Morse and Taken
Under Amusement.
WHAT THE CONVENTIONS ARE.
iSlrong Presentation by Hon. !. 5.
Richards and Reply by Judge
G.. ). Zane.

The case Of Don Carlos W. Musser
md Charles A. Smurthwaitc VS.. Joseph
r smith. president and trustee IN
trust Of the church Of Jesus Christ u
iatter.day Saints. aud John Il. VIM
der and Anthem II. Lund. his counsel
or. and william b. Preston, presiding
bishop Of the Church, was up yester-
day before Judge C. ". Morse on the
attendants demurrer To the plaintiffs
second amended complaint. and was
argued by Hon. F. s. Richards for
tho defendants and c. s. Zane for the
rIsinilHs Arguments were resumed
today and the case taken under ADVISE
menL
The action is brought 10 obtain
decree declaring the legal duty Of
Joseph T. Smith. president and trustee
IN trust Of the Church, with respect
10 tthing and other donations. and
~ secure an Injunction restraining the
defendants from investing or continu-
INK investments Of the Church funds
in any business or enterprise estab-
lished or prosecuted for commercial,
Industrial or business purposes.
ORIGINAL COMPLAINT.
T, will be remembered that a de-
mwrer was filed by the defendants to
the original complaint. on the ground
that II did not state facts sufficient
~ constitute y cause OF action. and be-
cause II was ambiguous in certain par
81. A. .I..H aH0.s
then filed and a similar demurrer IN
terposed. This demurrer was after
wards sustained by the court. witch
flied written decision. holding that
The amended complaint did not state
facts sufficient 10 constitute a cause
Of action.
A second amended complaint was
fled and demprred TO on the same
grounds. This is the demurrer that
was argued YESTERDAY
Mr. Richards made a lengthy and
exhaustive argument, during which he
read the decision Of the court on the
former demurrer. and compared the
present complaint with the previous
one, 10 show what changes had been
made I'm the pleading, his contention
being that the allegations Of the sec
ond amended complaint did not meet !
the requirements Of the law or the de-
clsion Of the court. and that II came
no nearer stating a cause of action |
than the former complaint, which |
was held to be insufficient.
WHAT WAS NOT ALLEGED.
He emphasized the fact that II was
not alleged or contended by counsel for !
the plaintiffs that the acts OF the de- |
PENDANTS complained Of we're unlawful |
s. The sense that they are In violation
N any Of the laws OF this state. neither
was Il alleged or contended that any
N the trust property had been or was
bong appropriated By the defendants,
o. either Of them, 20 their own use, or
that either Of the defendants had been
guilty ~ any fraud with relation 10 !
Ech property. The contention was /
hat the investment Of the funds In the |
stocks Of certain commercial and in |
dustrial enterprises was unauthor- |
lied and unwarranted, and consti-
iuted a violation on the part u the /
Of their duties as trustees, j
hu, what those duties are, and what the /
Of authority on the part OF /
the trustees. do not appear in either 81 /
The complaints. although Il Is essential |
That they should appear, IN order % |
chow the terms Of the trust. which must |
b. known to the court before it can de- |
itrmine whether or not there has been !
a violation Of the trust.
THE VITAL DEFECT.
Tho vital defect in this complaint. as
we'll as IN the former ones, Is that Meth
a. Of them states facts showing the
terms OF the trust under which the
Church funds are held nor how the
funds are 10 be managed and applied,
Fnd with whom, II anyone. rests the
discretion Of determining or directing
such management or expenditure The
court said I'm It's decision:
An the facts or circumstances relied
upon 10 show the creation or existence
81 a trust in favor OF the plaintiffs must
Do distinctly alleged. And this must OF
necessity be so, for II cannot be deter
mined whether a breach Of duty or the
failure 10 perform an obligation has oc-
CURED, unless the duty or obligation be
clearly set forth and defined
THE TWO COMPLAINTS.
IN the former complaint the allcra-
lion was made that the Church lex
acts annually from It's members one
tenth of their gains or income as thith-
ins. that said contributions are paid
10 said Church and said trustee for ap-
preparation ana expenditure by 10 cN-