Year: 1870

The District Court OF Salt Lake City has adjourned
till next September. The act OF Congress establish
ing territorial government for Utah provides that
the judicial power OF the Territory shall be vested In
q supreme court district courts, probate courts
and In justices OF the peace. The Supreme Court Is
composed OF chief justice and two associates. The
three district courts presided over by the same
officers, each in his own judicial district. Being
federal appointments their courts are commonly
called United States courts In conradstinction TO
the probate and police courts, which are presided
over by Mormon officers. The act provides that the
Jurisdiction or the several courts, both appellate
and original, and that Of the probate courts and
Justices OF the peace, shall be as limited by law
provided that justices OF the peace shall not
have jurisdiction OF any matter In controversy
when the title or boundaries Of land may
be In dispute or where the debt or sum
claimed shall exceed one hundred dollars; and
the supreme and district courts respectively
shall possess chancery as we'll as common law
jurisdiction Heretofore the probate courts acting
under the authority Of the Mormon Legislature, have
assumed the right Of chancery and common law
jurisdiction, the supremacy Of the United States
courts has been practically ignored, and United
States judges have been inundated and practically
driven out Of Utah. The question OF the right OF the
probate courts TO common law jurisdiction came up
for adjudication before Chief Justice G. G. Wilson
at the term OF the court which has Just adjourned
The case was q civil sutt-Cronyan Il Co. vs. @. w.
Hgley-in which Judgment had been rendered In
The Probate Court OF Salt Lake county by Justice
Smith In the amount Of 81, 600 on promissory note
The case came before Chief Justice Wilson for re-
view, on the ground OF want OF Jurisdiction Of the
Probate Court. 1t was claimed on the other hand
that while the act of Congress organizing the Terri
tory conferred upon the supreme and district courts
cha
not connne such Jurisdiction exclusively to them
that the Territorial Legislature If 1t could not de-
prive those courts OF that power, has unlimited
authority in distributing and apportionng judi
ciai authority among the several courts and
that hence it had the right to confer on
the probate courts the jurisdiction claimed.
The opinion OF Chief Justice Wilson, who has
always been liberal rather than radical towards
the Mormons, was adverse to their side Of the ques
ton. He held that the Territorial Legislature was
the creature OF Congress- and that all the laws Of
the Legislature must be consistent with the power
which Congress delegated to it; that Congress- hav
ing prescribed the jurisdiction of the supreme and
district courts, left that Of the probate courts and
OF justices Of the peace to be limited by the Legis-
lature, at the same time excepting Justices OF the
Peace nom adJudlcatlng cases involving the title
boundaries OF land, or sums exceeding 500. After
careful examination OF the act he to the con-
clusion that Congress- neither by implication by
express TERMS gave to the probate courts common
law jurisdiction. Neither had such courts in the
several States exercised such powers except when
conferred by express statute, as had been done IN
some cases. Therefore he decided that probate
courts In Utah have no inherenr power to adldoate
controversies at common law, ana that the Leglsla-
ture had no authority to confer such power
The question then arose as to the meaning of the
Language Of the organic act, which says 'The jufs
dicton Of the several courts, both appellate and
original, and that OF the probate courts and
Of justices OF the peace shall be as limited
meant simply this and no more--that the
Territorial legislature might limit. the courts
consistent with the constitution of the United States
and the provisions OF the organic act. That Is to
say that the Legi iaturc could confer upon the pro-
bate courts jurisdiction OF all such subjects were
not by the act conferred upon the other courts and
such consistent with their character as pro.
ter OF the probate courts OF America showing them
to he based upon and partly analogous to the Old
the act of Parliament Of 1857 transferring their jurs
dlctOn TO the temporal courts) took cognlzance Of
matters OF probate Wills administration OF estates
idiots and insane persons, ana divorce aimOny, &c


and he said, 1t would De proper for the Territorial
Legislature to confer such powers upon the probate
courts Of Utah. In some Of the States probate courts
mad taken jurisdiction OF common law cases under
an express statute, but never OF chancery crml-
nal matters, as they have In Utah. Since neither
the old ecclesiastical courts OF England nor
the probate courts OF America as their successors,
nad matter OF right or by comman practice any
jurisdiction Of common law cases. and as In the pre-
sent instance no such express authority had been
conferred by Congress, the Court ruled that any and
all Territorial legislation conferring such jnrisdc-
ton upon the probate courts of Utah Is unauthorized
and invalia, and accordingly dismissed the suit
Before concluding his opinion, however, Judge VIII
took occasion TO say tnat the Jurisdiction Of
mon law cases by the probate courts Of Utah had
been OF great convenience TO the people, and this
ground of convenience he was OF opinion that Con-
Qress should confer such jurisdiction on them at


From legal point Of view, and on the grounds of
economy and convenience, this opinion may be
sound but from political point Of view, consider
ing existing circumstances, the delegation OF such
Jurisdiction would be most imp0litfc.


The only other important case before the court


one touching the supremacy Of United States over
Mormon ofllcers-came up on q question OF execu-
tive duties between the federal and Terrific
rial marshals Joseph N: orr, United States Marshal
Grant, and entered on his duties He claimed that
the laws Of the United States required him TO per-
district courts. He alleged that J. u. T. McAllister
a bishop In the Mormon Church, as Territorial mar
shall by authority Of his appointment by the Legsla
ture, assumed the right TO perform nearly all the
executive business OF those courts had performed it
and still claimed the right to perform little exceD-
tions n which he had not done SO being some cases
in which the United States had been a party This
case arose out OF petition OF the United States Mar
shall upon which the District Court issued writ,
recurring the Territorial Marshal to show cause and
by what authority he claimed his prerogatlye OF mar
sha in violatlon Of the United States Marshas
stated that pursuant to an act OF the Territorial
Legislature In relation to marshals, approved
March g. 1852, he had been elected Marshal by the
Legislature in January 1865 and again in February


1870, and being duly qualified and commissioned had
performed the dutles u MS once since 1865. lie
denied the allegation that he had assumed to act
or exercise the duties Of the United States Marshall
and disclamed the right TO act as the executive
officer OF either the Supreme or District courts
'when exercising the jurisdiction Of circuit or dis
trict courts OF the United States;' but when they
were not exercising such jurisdiction he claimed the
right to act as marshal and perform the executive
duties Of those courts by authority of law. TO this
answer the Cnted States Marshal fled general de-
murrer setting forth that by virtue OF the original
act Of Congress establishing territorial government
for Utah, and of his appointment by the President Of
the United States he as Marshal was III all respects


the proper executive officer Of the Supreme and Dis


trct courts; that tile Legislature had no right


or authority OF law to appoint marshal


for the Territory, and that the appointment OF Nc


Allister WAS wholly void Thus the case was left for


this poson Chief Justice Wilson went back beyond
the passage OF the organic act, and examined the


power of Congress over Utah Territory. This power
Ia well established and needs no confirmation.


Judge Wilson alluded to the extensive jurisdiction


OF the district courts Of Utah. pointing out the fact


that Is greater than thai OF state court or OF


limited States circuit or district court having, IN