Under the Organic Act of September 9, 1850, organizing the
Territory of Utah, the attorney general of the territory, elected
by the legislature thereof, and not the district attorney of the
United States, appointed by the President, is entitled to prosecute
persons accused of offenses against the laws of the territory.
By the Organic Act passed September 9, 1850, establishing the
Territory of Utah, it was enacted:
"SECTION 6. The legislative power shall extend to all rightful
subjects of legislation consistent with the Constitution of the
United States and the provisions of this act."
By the ninth section, the judicial power was vested in a supreme
court, district courts, probate courts, and justices of the peace,
whose jurisdiction was to be limited by law,
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provided that justices should not try land titles nor cases
exceeding $100 in amount, and that the Supreme and district courts
should possess chancery as well as common law jurisdiction. Each
district court was invested with the same jurisdiction in cases
arising under the Constitution and laws of the United States as is
vested in the circuit and district courts of the United States, and
the first six days in each term were appropriated to such
cases.
Another section thus enacted:
"An attorney general shall be elected by the joint vote of the
legislative assembly, whose term of office shall be one year unless
sooner removed by the legislative assembly or until his successor
is elected and qualified. It shall be the duty of the attorney
general to attend to all legal business on the part of the
territory before the courts where the territory is a party
and
prosecute individuals accused of crime in the judicial
district in which he keeps his office
in cases arising under
the laws of the territory, and such other duties as pertain to
his office."
Another section provided for the election of
district
attorneys, whose duty it was made to
"attend to legal business before the courts in their respective
districts where the territory is a party, prosecute individuals
accused of crimes in cases arising under the laws of the territory,
and do such other duties as pertain to their office."
Then, following all, was:
"SECTION 10. There shall be appointed as attorney for said
territory, who shall continue in office for four years unless
sooner removed by the President and who shall receive the same fees
and salary as the attorney of the United States for the present
Territory of Oregon. There shall also be a marshal."
The marshal's duties were defined, being declared to be to
execute all process issuing from the courts constituted by the act,
when exercising their jurisdiction as circuit and district courts
of the United States. But about the duties of the district attorney
of the United States, to be appointed as above mentioned, nothing
at all was said.
In this state of things, the legislative assembly, by joint
Page 85 U. S. 319
vote, on the 19th of January, 1869, elected Zerubbabel Snow,
"attorney general of the territory," and on the 3d of April, 1870,
the President of the United States appointed C. H. Hempstead, to be
"the attorney of the United States" for the same territory.
Hereupon, Mr. Snow having undertaken to prosecute in one of the
district courts of the territory certain offenders "against the
laws of said territory," a
quo warranto was issued by the
United States on the relation of Mr. Hempstead against him, the
purpose of the writ being to have it judicially settled which of
the two persons -- whether the attorney of the United States for
the said territory, appointed by the President, or "the attorney
general of the territory," elected by its legislature -- was
entitled to prosecute in Utah persons accused of offenses against
the laws of the territory.
The supreme court of the territory, assuming that the Supreme
Court and the district courts of Utah was courts of the United
States, were of the opinion that the attorney of the United States
was the proper person, and adjudged accordingly.
The Attorney General of Utah thereupon brought the case
here.
MR. JUSTICE BRADLEY delivered the opinion of the Court.
The government of the territories of the United States
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belongs primarily to Congress and secondarily to such agencies
as Congress may establish for that purpose. During the term of
their pupilage as territories, they are mere dependencies of the
United States. Their people do not constitute a sovereign power.
All political authority exercised therein is derived from the
general government.
It is indeed the practice of the government to invest these
dependencies with a limited power of self-government as soon as
they have sufficient population for the purpose. The extent of the
power thus granted depends entirely upon the organic act of
Congress in each case, and is at all times subject to such
alterations as Congress may see fit to adopt.
The organic act establishing the territorial government of Utah
constituted a governor, a legislative assembly, and certain courts
and judicial and executive officers. Amongst the latter are an
attorney for the territory and a marshal.
By the sixth section of the act, it is enacted that the
legislative power shall extend to all rightful subjects of
legislation consistent with the Constitution of the United States
and the provisions of that act. By the ninth section, it is enacted
that the judicial power shall be vested in a supreme court,
district courts, probate courts, and justices of the peace, whose
jurisdiction shall be limited by law, provided that justices shall
not try land titles nor cases exceeding one hundred dollars in
amount and that the supreme and district courts shall possess
chancery as well as common law jurisdiction, and each of the
district courts is invested with the same jurisdiction in cases
arising under the Constitution and laws of the United States as is
vested in the circuit and district courts of the United States, and
the first six days in each term are appropriated to such cases.
The duties of the attorney are not specified in the act. The
marshal is required to execute all processes issuing from said
courts when exercising their jurisdiction as circuit and district
courts of the United States.
This recital shows that the business of these courts, when
acting as circuit and district courts of the United States, is to
be kept distinct from their business as ordinary courts
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of the territory, and gives countenance to the idea upon which
the territorial legislature seems to have acted in appointing
separate executive officers for attending the courts when sitting
as territorial courts. By an act of that legislature, passed March
3, 1852, it is, amongst other things, provided that an attorney
general shall be elected by the legislative assembly to attend to
all legal business on the part of the territory before the courts
where the territory is a party, and to prosecute individuals
accused of crime in the judicial district in which he shall keep
his office, in cases arising under the laws of the territory, and
that for the other districts, district attorneys shall be elected
in like manner with like duties. This law, it is understood, has
always been acted upon until the recent decision of the Supreme
Court of Utah denying its validity. Similar laws have been passed
and acted upon in other territories organized under similar organic
acts. The attorney appointed by the President for the territory has
been accustomed to attend to the business of the general
government, the same as is done by United States district attorneys
in the several states, and the attorney general and district
attorneys of the territory have attended to the business of the
latter and prosecuted crimes committed against the territorial
laws.
It must be confessed that this practice exhibits somewhat of an
anomaly. Strictly speaking, there is no sovereignty in a territory
of the United States but that of the United States itself. Crimes
committed therein are committed against the government and dignity
of the United States. It would seem that indictments and writs
should regularly be in the name of the United States, and that the
attorney of the United States was the proper officer to prosecute
all offenses. But the practice has been otherwise not only in Utah,
but in other territories organized upon the same type. The question
is whether this practice is legal, or in other words whether the
Act of the territorial legislature was authorized by the organic
act. If it was, the plaintiff in error in this case was erroneously
ousted from performing
Page 85 U. S. 322
the duties of his office of attorney general of the
territory.
The power given to the legislature is extremely broad. It
extends to all rightful subjects of legislation consistent with the
Constitution and the organic act itself. And there seems to be
nothing in either of these instruments which directly conflicts
with the territorial law. If there is any inconsistency at all, it
is in that part of the organic act which provides for the
appointment by the President of an attorney for the territory. But
is that necessarily an inconsistency? The proper business of that
attorney may be regarded as relating to cases in which the
government of the United States is concerned. The analogous case of
the marshal and the separation of the business of the courts as to
government and territorial cases seem to give some countenance to
this idea. At all events, it has sufficient basis for its support
to establish the conclusion that there is no necessary conflict
between the organic and the territorial laws. The organic act is
susceptible of a construction that will avoid such conflict. And
that construction is supported by long usage in this and other
territories. Under these circumstances, it is the duty of the Court
to adopt it and to declare the territorial act valid. In any event,
no great inconvenience can arise, because the entire matter is
subject to the control and regulation of Congress.
Judgment affirmed.