FERRIS V. HIGLEY, 87 U. S. 375 (1873)

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U.S. Supreme Court

Ferris v. Higley, 87 U.S. 20 Wall. 375 375 (1873)

Ferris v. Higley

87 U.S. (20 Wall.) 375


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

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