1. The act of Congress under which Utah was organized its a
territory provided for a supreme court, district courts, probate
courts, and justices of the peace, and distributed the judicial
power among them.
2. It gave to the supreme and district courts a general
jurisdiction at common law and in chancery and limited and defined
the powers of the justices of the peace.
3. It declared that the legislative power should extend to all
rightful subjects of legislation not inconsistent with the
Constitution of the United States or with the organic act.
4. The act of the territorial legislature conferring on the
probate courts a general jurisdiction in civil and criminal cases,
and both in chancery and at common law, is inconsistent with the
organic act, and is therefore void.
In 1850, Congress passed an act "to establish a territorial
government for Utah," the organic act governing the territory.
[
Footnote 1] The act is a long
act, of seventeen sections. It defines the boundaries of Utah;
establishes an executive power and defines its duties; provides for
a secretary of the territory and defines his duties. It establishes
also a legislative power, declares of whom it shall be composed,
and
Page 87 U. S. 376
how the persons composing it shall be elected, and the
qualification of the voters electing them.
In defining the legislative power, it says, among numerous other
things:
"SECTION 6. The legislative power of said territory shall extend
to all rightful subjects of legislation consistent with the
Constitution of the United States and the provisions of this
act."
"All the laws passed by the legislative assembly and governor
shall be submitted to the Congress of the United States, and
if
disapproved shall be null and of no effect."
It then thus establishes the judicial power:
"SECTION 9. The judicial power of said territory shall be vested
in a supreme court, district courts, probate courts, and in
justices of the peace."
The same section then declares of how many justices the supreme
court shall consist; that the President of the United States shall
appoint them (as the act also does that he shall the governor,
secretary, attorney, and marshal, enacting that the United States
shall pay the salaries of all), and how many judges of the supreme
court shall make a quorum, and for what term their commissions
shall run. It divides the territory into judicial districts, makes
district courts, enacts that the judges of the supreme court shall
hold them, and adds:
"The jurisdiction of the several courts herein provided for,
both appellate and original, and THAT OF THE PROBATE COURTS and of
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, where the title or boundaries of land may be
in dispute or where the debt or sum claimed shall exceed one
hundred dollars, and the said supreme and district courts
respectively shall possess chancery as well as common law
jurisdiction."
The act gives power to the
supreme and
district courts to appoint their clerks, and enacts
additionally:
"Writs of error, bills of exception, and appeals shall be
allowed in all cases from the final decisions of said district
courts
Page 87 U. S. 377
to the supreme court under such regulations as may be prescribed
by law. . . ."
"Writs of error and appeals from the final decisions of said
supreme court shall be allowed, and may be taken to the Supreme
Court of the United States in the same manner and under the same
regulations as from the circuit courts of the United States."
But though the act goes into full details about the supreme and
district courts, and in fact about everything else relating to the
government of the territory, it says nothing more in any part of it
about probate courts than the eleven words above quoted on page
87 U. S. 376 in
small capitals.
With this act of Congress in force as the fundamental law of the
territory, the territorial legislature in 1855 [
Footnote 2] passed an act, entitled "An act in
relation to the judiciary." That act says:
"The several
probate courts in their respective
counties have power to exercise
original jurisdiction, both
civil and criminal, and as well in chancery as at common law,
when not prohibited by legislative enactment, and they shall be
governed in all respects by the same general rules and regulations
as regards practice as the district courts."
Congress had not enacted any act "
disapproving" of this
territorial act, and thus rendering it, by federal legislation,
null and of no effect.
In this state of enactment, Congressional and territorial,
Higley sued Ferris in the
Probate Court of Salt Lake
County on a promissory note for $1,000, and obtained a judgment
there. The case, coming into the District Court of the Third
Judicial District, was reversed on the ground that the probate
court had no jurisdiction of such a suit, and, this judgment being
affirmed on appeal to the supreme court, it was now brought here by
writ of error to that court.
The question, of course, was whether, under the organic act of
the territory vesting the judicial power of that territory
Page 87 U. S. 378
"in a supreme court, district courts, probate courts, and in
justices of the peace" and declaring that the jurisdiction of those
courts -- mentioning specially "that of the probate courts" --
should be as
limited by law -- the said organic act -- in
its grant of power to the territorial legislature to legislate on
all "rightful subjects of legislation consistent with the
provisions of the act" -- meant that the jurisdiction of the courts
should be limited -- that is to say, should be defined by its law
-- the law of the territory -- alone, or whether it also referred
to and included the ancient law, well known in nearly all the
United States of America, which fixes the constitution of those
courts which under various names, including that of probate courts,
have the care of the estates and concerns of persons deceased.
Page 87 U. S. 379
MR. JUSTICE MILLER delivered the opinion of the Court.
The single question in this case is whether the probate court
had jurisdiction to hear and determine such an action as it heard
and determined in the present case, and this must be decided by a
construction of the statute of the territory and the provisions of
the act of Congress organizing the territory.
A statute of the territorial legislature enacts that
"The several probate courts, in their respective counties, have
power to exercise original jurisdiction, both civil and criminal,
and as well in chancery as at common law, when not prohibited by
legislative enactment, and they shall be governed
Page 87 U. S. 380
in all respects by the same general rules and regulations as
regards practice as the district courts."
In a very learned opinion of one of the judges of the supreme
court of the territory, we find an ingenious argument in support of
the idea -- though the case is not rested on this ground -- that
this provision was not intended to confer jurisdiction, but was a
mere declaration of the opinion of the territorial legislature that
the jurisdiction already existed. This is founded on the use of the
words "have power" in the present tense, instead of "shall have
power," in the future. We have no doubt that the legislature
intended to confer the power by that sentence. No statute or other
law existed previously by which anyone ever supposed that such
power existed. The form of expression here used is not at all
uncommon for that purpose, especially in enactments which, like
this, are parts of a general code of laws. The legislature was not
in any manner called upon to give its opinion of the powers of the
probate court, but it was in fact making a general system of laws
for the territory. It is inconceivable that it meant anything else
but to establish the court and prescribe its jurisdiction.
But the power of the legislature to confer this jurisdiction on
the probate courts is a much more serious question.
The organic act, in defining the power of the territorial
legislature, declares that "it shall extend to all rightful
subjects of legislation consistent with the Constitution of the
United States, and with that act."
We may, I think, assume without much hazard that defining the
jurisdiction of a probate court, or, indeed, of any court, may be
fairly included within the general meaning of the phrase rightful
subject of legislation. Nor do we think there is anything in such
legislation inconsistent with the Constitution of the United
States. There remains, then, only the further inquiry whether it is
inconsistent with any part of the organic act itself.
That act established a complete system of local government. It
stands as the constitution or fundamental law of the territory. It
provides for the executive, legislative, and
Page 87 U. S. 381
judicial departments of government. It prescribes their
functions, their manner of appointment and election, their
compensation and tenure of office. In regard to the judiciary, it
creates the courts, distributes the judicial power among them, and
provides all the general machinery of courts, such as clerk,
marshal, prosecuting attorney &c.
It is here then, if anywhere, that we should look for anything
inconsistent with the power conferred on the probate courts by the
territorial legislature. The ninth section of the act declares that
"The judicial power of the territory shall be vested in a supreme
court, district courts, probate courts, and justices of the peace,"
and it prescribes the organization and number of the district
courts. The judges of these are appointed by the President, by and
with the advice and consent of the Senate of the United States. And
then it declares that
"The jurisdiction of the several courts herein provided for,
both appellate and original, and that of the probate courts, and of
the 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 where the title or
boundary of lands may be in dispute or where the debt or sum
claimed shall exceed one hundred dollars, and the said supreme and
district courts, respectively, shall possess chancery as well as
common law jurisdiction."
Provision is made in the same section for appeals and writs of
error from the district courts to the supreme court of the
territory, and from that court to the Supreme Court of the United
States, but no provision is made for any such review of the
decisions of the probate courts or of the justices of the
peace.
The common law and chancery jurisdiction here conferred on the
district and supreme courts is a jurisdiction very ample and very
well understood. It includes almost every matter, whether of civil
or criminal cognizance, which can be litigated in a court of
justice. The jurisdiction of the justices of the peace is
specifically limited as regards the moneyed value on which it may
decide, and by the exclusion
Page 87 U. S. 382
of matters concerning real estate. Of the probate courts it is
only said that a part of the judicial power of the territory shall
be vested in them. What part? The answer to this must be sought in
the general nature and jurisdiction of such courts as they are
known in the history of the English law and in the jurisprudence of
this country. It is a tempting subject to trace the history of the
probate of wills and the administration of the personal estates of
decedents from the time that it was held to be a matter of
exclusive ecclesiastical prerogative down to the present. It is
sufficient to say that, through it all to the present hour, it has
been the almost uniform rule among the people, who make the common
law of England the basis of their judicial system to have a
distinct tribunal for the establishment of wills and the
administration of the estates of men dying either with or without
wills. These tribunals have been variously called prerogative
courts, probate courts, surrogates, orphans' courts &c. To the
functions more directly appertaining to wills and the
administration of estates have occasionally been added the
guardianship of infants and control of their property, the
allotment of dower, and perhaps other powers related more or less
to the same general subject. Such courts are not in their mode of
proceeding governed by the rules of the common law. They are
without juries and have no special system of pleading. They may or
may not have clerks, sheriffs, or other analogous officers. They
were not in England considered originally as courts of record, and
have never, in either that country or this, been made courts of
general jurisdiction unless the attempt to do so in this case be
successful.
Looking, then, to the purpose of the organic act to establish a
general system of government and its obvious purpose to say what
courts shall exist in the territory and how the judicial power
shall be distributed among them, and especially to the fact that
all ordinary and necessary jurisdiction is provided for in the
supreme and district courts and that of the justices of the peace,
and that the jurisdiction of the probate court is left to rest on
the general nature
Page 87 U. S. 383
and character of such courts as they are recognized in our
system of jurisprudence, is it not a fair inference that it was not
intended that that court should be made one of general
jurisdiction?; that it should not be converted into a court in
which all rights, whether civil or criminal, whether of common law
or chancery cognizance, whether involving life, or liberty, or
property, should be lawfully tried and determined?
For all such cases, when tried in the district courts, provision
is made for correction of errors and mistakes by appeal to a higher
court. But no such provision is made in regard to the probate
courts, a thing which certainly would have been done if it had been
supposed that all judicial power would have been vested in
them.
It is supposed that a sufficient answer to this course of
reasoning is found in the declaration of the ninth section of the
organic act already cited that the jurisdiction of the several
courts therein provided for, "shall be as limited by law." The
argument is that this refers to laws to be thereafter made by the
territorial legislature, and that as the power of that body
extended to all rightful subjects of legislation, it extended to
this of totally changing the jurisdiction of these courts. We are
not prepared to say that, in deciding what law is meant in this
phrase "as limited by law," we are wholly to exclude laws made by
the legislature of the territory. There may be cases when that
legislature conferring new rights, or new remedies, or establishing
anomalous rules of proceedings within their legislative power, may
direct in what court they shall be had. Nor are we called on to
deny that the functions and powers of the probate courts may be
more specifically defined by territorial statutes within the limit
of the general idea of the nature of probate courts, or that
certain duties not strictly of that character may be imposed on
them by that legislation.
But we hold that the acts of the legislature are not the only
law to which we must look for the powers of any of these
territorial courts. The general history of our jurisprudence and
the organic act itself are also to be considered,
Page 87 U. S. 384
and any act of the territorial legislature inconsistent with the
latter must be held void. We are of opinion that the one which we
have been considering is inconsistent with the general scope and
spirit of that act in defining the courts of the territory, and in
the distribution of judicial power amongst them, inconsistent with
the nature and purpose of a probate court as authorized by that act
and inconsistent with the clause which confers upon the supreme
court and district courts general jurisdiction in chancery as well
as at common law. The fact that the judges of these latter courts
are appointed by the federal power, paid by that power -- that
other officers of these courts are appointed and paid in like
manner -- strongly repels the idea that Congress, in conferring on
these courts all the powers of courts of general jurisdiction, both
civil and criminal, intended to leave to the territorial
legislature the power to practically evade or obstruct the exercise
of those powers by conferring precisely the same jurisdiction on
courts created and appointed by the territory.
The act of the territorial legislature conferring general
jurisdiction in chancery and at law on the probate courts is,
therefore, void.
This view is supported by the decisions of courts of Kansas,
[
Footnote 3] on a similar
statute; by decisions in Idaho, [
Footnote 4] and by the decisions of the supreme court
whose judgment we are here called on to reverse.
Judgment affirmed.
The CHIEF JUSTICE, not having heard the argument, took no part
in the decision of this case.
[
Footnote 1]
Act of September 9, 1850; 9 Stat. at Large 453.
[
Footnote 2]
January 19.
[
Footnote 3]
Locknane v. Martin, McCahon 60;
Dewey v. Dyer,
ib., 77;
Mayberry v. Kelly, 1 Kans. 116.
[
Footnote 4]
People v. Du Rell, 1 Idaho 30;
Moore v. Konbly,
ib., 55.
