Deseret evening news. [volume] (Great Salt Lake City [Utah]) 1867-1920, 1910-09-23
Presents Argument Why Prohib'
TORY Writ Should be
Quashed.
EXCLUSIVE JURISDICTION
CITY Court Relies Upon statutory Pro-
visions with Regard 10 Its Fro
cccdure al Limitations.

cause why the alternative writ OF pro-
hlbition issued by Judge Morse. staying
him from proceeding further in the
contempt proceedings against city At
torney Harper } Dninuy until 10
O'clock this morning. should not b.
made permanent
The arguments this morning. partici-
pated in by an array ~ legal talent
were on the demurrer 10 the alter
native writ entered by Judge Whit
aker. lie demurred on the grounds
that the district court h without iurts-
diction over the subject matter OF this
proceeding for tho reason that the city
court has exclusive jurisdiction over
cases arising for violations Of the city
ordinances and the contempt proceed
ing Is incidental 20 such exclusive turis-
dictiOn
Judge whitaker was represented in
court by himself and f. 4. Walton
special police court prosecutor. city
Attorney pninny was represented by
himself his first assistant. T.. j. DAILY.
and $ T. Armstrong
The interest aroused by the case was
shown by the large attendance Of law
yers Prominent among persons in the
court room were chief Of Police Bar
low ana 0ltIlH dbHtIn 10 SUM
At noon. arguments on the demurrer
had not Vet been concluded. Court
was adjourned until 3 o'clock.
A motion was made to the court by
Assistant city Attorney =. j. DAILY that
Attorney r.. a Walton, appointee OF
Judge ] j. Whitaker as special prose-
cutor during the contempt proceedings
against city Attorney Dininny, shall
under oath or otherwise. show by what
authority he appears in the city court
as special prosecutor
Authorities we're cited by Assistant
Prosecutor DAILY to show that the sp-
pointment was not valid He was
asked by Attorney Walton II he pur-
posed 10 appear on both sides
rs the city attorney prepared to de-
fend himself in this natter asked
Judge Morse.
I'VE are ready" said Mr.. DAILY.
In outlining his defense, Mr. Dininny
took the stand that the city court had
no right TO appoint an attorney to APP
PEAR in any case in the police court,
without first obtaining authority from
the city council.
IN A QUEER POSITION.
You are placing yourself in very
peculiar position. MIR Dininny' said
Judge Morse When you bring an
action before the Judge or the city
court and then say that the attorney
who appears has no right to appear,
you are indeed placing yourself In n
peculiar position"
Mr. Walton then proceeded with the
argument on the application FOR writ Of
prohibition. lie affirmed that the city
court had exclusive jurisdiction in its
own court and maintained that II is not
amenable to the extraordinary writ Of
prohibition. With reference TO the APP
plication of Mr.. Dininny, he said that
Mr.. Dininny had taken into considere-
ton only q part OF the law applying
TO the case.
Remedy by prohibition is not a prop
err remedy" declared Mr. Walton. II
have not been able to ind yet case
where this remedy had been taken TO
prevent n court from taking action in
contempt proceedings.
The jurisdiction of the city court Is
over all matters arising from viola
lions 81 the city ordinances II the
alleged contempt was IN connection
with case arising from an alleged
violation Of the city ordinances. the
power Ia punish the contempt lies In
the court itself
IAN courts have the inherent right
and power To- punish contempt, unless
the power Is limited by statute. We
need cite no statute giving this power
and there Is no statute limiting this
power"
Judge Morse then asked Mr.. walton
N he understood that the inferior
courts as we'll as courts Of record. have
the power 10 punish for contempt. The
attorney answered by saying that such
was his understanding.
CITY ATTORNEYS DUTIES.
Mr.. walton declared that in his opiu-
ion il was the duty Of the city attol-
ney to adequately care for the interests
of the city at all times by attending
TO the prosecution of cases brought IN
the city courts.
Where there Is no statutory limita-
tion the power exists In tho city court
e. conduct all prosecutions salu MT.
Walton. he then read the section OF
the statutes covering the Issuance ~
warrants VI arrest and the conduct ~
prosecution for an offenscs. He SAL
that the law plainly showed that II
WAS the duty Of the city attorney "a
prosecute the action against virgil Nc
Nahon. and that his action In refusing
10 proceed with the prosecution Of tn
case was contempt ~ court. The
court had a right he said, TO take
c0gnizance Of this contempt ana Ia
punish FOR g.
Mr.. Walton said there were a mum
her Of cases IN record whore a clerk
had been punished for contempt fur
refusing 20 serve a process, and where
n sheriff hy his absence from court had
been held to be in contempt BY an
slogy. Mr. Dininny was also in CON
tempt.
Speaking Of the remedy Of prohibition
MIR Walton said that the late Utah
eases have followed r. given line In such
matters. and that the courts have decid
cd that prohibition is not the prop per
remedy.
The argument for the city attorney
was presented by Asst. city Atty. y,
J DAILY The jurisdiction OF the court
Is the point on which the whole discus
sion must reyoive. he said. He adj
mitted that the city court had exclusive
original Jurisdiction over cases involS-
ing violations of ordinances.
Mr.. DAILY said that In history It was
shown that the origin 81 the muuicips
court was from an ecclesiastical court
which settled neighborhood and per
sonal troubles. and that the court In
its powers grew with the development
Of the communities He said that iti
power to punish also grew 10 certain
extent.
STATUS OF ORDINANCES
Ordinances are merely the bylaw
Of CITY corporation" said Mr. DalN