ERROR to the Supreme Court of the Territory of Utah. The case, which involved a question as to the jurisdiction of the Probate Courts of Utah, was thus: In 1850 Congress passed an act 'to establish a Territorial government for Utah;' the organic act governing the Territory.*fn1 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 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 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 376, in small capitals. With this act of Congress in force as the fundamental law of the Territory, the Territorial legislature in 1855*fn2 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 $1000, 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 '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.
The opinion of the court was delivered by: Mr. Justice Miller, delivered the opinion of the court.
Messrs. C. J. Hillyer and T. Fitch, for the plaintiff in error:
It cannot be argued that the establishment and definition of jurisdiction of courts of record is not 'a rightful subject of legislation,' or that Territorial legislation to that end with respect to local courts, is inconsistent with the Constitution of the United States.
The only inquiry is then whether the Territorial statute conferring common-law and chancery jurisdiction upon Probate Courts is inconsistent with the provisions of the act of Congress.
It is submitted that Congress, in declaring that the jurisdiction of the Probate Courts shall be 'as limited by law,' intended a law to be hereafter enacted either by itself or by the Territorial legislature, and that the Territorial legislature, in conferring upon the Probate Courts common-law jurisdiction to an unlimited extent, did no more than it was empowered by the act of Congress to do. It is further submitted that the failure of Congress to subsequently annul this act of the Territorial legislature by a disapproving statute validates the exercise of power by the Territorial legislature, even if it had been originally of doubtful validity.
The idea that Congress, in using the words 'as limited by law,' intended, not statutory enactments alone, but 'the law' in its broader sense, wherein the history of Probate Courts, the constructions of eminent writers and the interpretation of courts as to the powers and jurisdiction of Probate Courts in general are considered as part of 'the law,' can hardly be sustained. A grant of power from the lawmaking body, accompanied by a reservation that such power so granted may afterwards be 'limited by law,' means a law to be thereafter enacted, and not a judicial construction of existing enactments.
Neither can it be argued that, as the section of the act of Congress heretofore quoted confers original chancery and common-law jurisdiction upon the District Courts, it therefore, by necessary implication, excludes such jurisdiction from all other courts under the application of the maxim. The act of Congress referred to is not a penal statute, and the maxim, 'Expressio unius,' &c., does not apply.
The words 'have power' in the Territorial act, are unusual in a statute meant to grant power. The usual words are, 'shall have power.' One of the judges of the court below was of the opinion that the words used were meant as a simple declaration of the Territorial legislature that the jurisdiction already existed, though he did not rest the case on that ground. His opinion is submitted.
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 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 any one 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 ...