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CLINTON V. ENGLEBRECHT, 80 U. S. 434 (1871)

U.S. Supreme Court

Clinton v. Englebrecht, 80 U.S. 13 Wall. 434 434 (1871)

Clinton v. Englebrecht

80 U.S. (13 Wall.) 434


1. The effort of a defendant to secure, so far as he can, by peremptory challenges and challenges for cause, a fair trial of his case, does not waive an inherent and fatal objection to the entire panel.

2. The fact that judges of the district and supreme courts of the territories are appointed by the President, under acts of Congress, does not make the courts which they are authorized to hold "courts of the United States." Such courts are but the legislative courts of the territory, created in virtue of the clause which authorizes Congress to make all needful rules and regulations respecting the territories belonging to the United States. Accordingly, jurors summoned into them under the acts of Congress, applicable only to the courts of the United States, i.e., courts established under the article of the Constitution which relates to the judicial power, are wrongly summoned, and a judgment on their verdict cannot, if properly objected to, be sustained.

3. The theory upon which the various governments for portions of the territory of the United States have been organized has ever been that of leaving to the inhabitants all the powers of self-government consistent with the supremacy and supervision of national authority, and with certain fundamental principles established by Congress.

4. This view illustrated by reference to the various acts, from the earliest dates till 1864, organizing the territories of the United States.

5. The Utah jury law of 1859 examined and considered in the light of this view and this history, and certain objections to it declared to be without foundation.

The principal question for consideration in this case was raised by the challenge of the defendants to the array of the jury in the Third District Court of the Territory of Utah.

The suit was a civil action for the recovery of a penalty for the destruction of certain property of the plaintiffs by the defendants. The plaintiffs were retail liquor dealers in the City of Salt Lake, and had refused to take out a license as required by an ordinance of the city. The defendants, acting under the same ordinance, thereupon proceeded to the store of the plaintiffs and destroyed their liquors to the value, as alleged, of more than $22,000. The statute gave an action against any person who should willfully and maliciously injure or destroy the goods of another for a sum

Page 80 U. S. 435

equal to three times the value of the property injured or destroyed. Under this statute, the plaintiffs claimed this threefold value.

The act of the territorial legislature, passed in 1859 and in force when the jury in this cause was summoned, required that "the county court" in each county should make out from the assessment rolls, a list of fifty men qualified to serve as jurors, and that thirty days before the session of the district court, "the clerk of said court" should issue a writ to the territorial marshal or any of his deputies, requiring him to summon twenty-four eligible men to serve as petit jurors. These men were to be taken by lot, in the mode pointed out by the statute, from the lists previously made by the clerks of the county courts, and their names were to be returned by the marshal to the clerk of the district court. Provision was further made for the drawing of the trial panel from this final list and for its completion by a new drawing or summons in case of nonattendance or excuse from service upon challenge, or for other reason.

For the trial of the cause, the record showed that the court originally directed a venire to be issued in conformity with this law, and that a venire was issued accordingly, but not served or returned. The record also showed that under an order subsequently made, an open venire was issued to the federal marshal, which was served and returned with a panel of eighteen petit jurors annexed, the court, in making this order, acting apparently on the theory that it was a court of the United States, and to be governed in the selection of jurors by the acts of Congress. The jurors thus summoned were summoned from the body of the county at the discretion of the marshal. Twelve jurors of this panel were placed in the jury box, and the defendants challenged the array on the ground that the jurors had not been selected or summoned in conformity with the laws of the territory and with the original order of the court. This challenge was overruled. Exception was taken, and the cause proceeded. Both parties challenged for cause. Each of the defendants claimed six peremptory challenges. This claim was also overruled,

Page 80 U. S. 436

and exception was taken. Other exceptions were also taken in the progress of the cause. Under the charge of the court, a verdict was rendered for the plaintiffs, under which judgment was entered for $59,063.25, and on appeal was affirmed by the supreme court of the territory. A writ of error to that court brought the cause here.

Page 80 U. S. 440

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