United States v. Baum

• Decision Date: 06 April 1896
• Docket Number: 10.
• Citation: 74 F. 43
• Parties: UNITED STATES v. BAUM.
• Court: U.S. District Court — District of Utah

74 F. 43

UNITED STATES v. BAUM.

No. 10.

United States Circuit Court, D. Utah.

April 6, 1896

J. W Judd, U.S. Atty.

J. M Tanner, for defendant.

MARSHALL District Judge.

The defendant asks that this action be dismissed, on the ground that the law under which he was indicted ceased to operate when Utah was admitted as a state, or, as stated in the motion, 'was repealed by the admission of Utah to statehood,' and there is no law of the United States now in force in Utah making the act charged against him a crime or authorizing its punishment. On November 21, 1895, the defendant was indicted in one of the district courts of the then territory of Utah for the crime of adultery, charged to have been committed on the 25th of September, 1895, in said territory, and within the jurisdiction of the court. To this indictment the defendant pleaded not guilty, and it was pending in such district court when Utah became a state. The crime of adultery was defined, and its punishment prescribed in section 3 of the act of congress of March 3, 1887, commonly known as the 'Edmunds-Tucker Act.' 24 Stat. 635. It was by that act made a crime against the United States, not only in the territories, but in any other place over which the United States had exclusive jurisdiction. As the court in which this indictment was found has ceased to exist, it becomes important to consider how the process could survive the court in which it was initiated, and could be proceeded with in this court.'

Section 17 of the Utah enabling act (28 Stat. 111) enacted:

'That the convention herein provided for shall have the power to provide, by ordinance, for the transfer of actions, cases, proceedings, and matters pending in the supreme or district courts of the territory of Utah at the time of the admission of the said state into the Union, to such courts as shall be established under the constitution to be thus formed, or to the circuit court or district court of the United States for the district of Utah; and no indictment, action or proceeding shall abate by reason of any change in the courts, but shall be proceeded with in the state of the United States courts according to the laws thereof, respectively.'

Under this authority it was provided, in a schedule annexed to the constitution of Utah, that:

'All actions, causes, proceedings and matters which shall be pending in the district courts of the territory of Utah, at the time of the admission of the state into the Union, whereof the United States circuit or district courts might have had jurisdiction had there been a state government at the time of the commencement thereof, shall be transferred to the proper United States circuit and district courts, respectively, and all files, records, indictments and proceedings relating thereto, shall be transferred to said United States courts. ' Const. Utah, art. 24, Sec. 7.

That the circuit court would have had jurisdiction of the crime charged if Utah had been a state at the time of its commission, and it had been committed under the same circumstances,-- that is, at any place within the state over which the United States had exclusive jurisdiction,-- follows from the original grant of criminal jurisdiction to that court in the judiciary act of 1789, which has been re-enacted in the succeeding statutes defining its jurisdiction. This grant was of 'exclusive cognizance of all crimes and offenses cognizable under the authority of the United States, except as otherwise provided by law and concurrent jurisdiction with the district courts of the crimes and offenses cognizable by them. ' Rev. St. U.S. Sec. 629; 25 Stat.c. 866, Sec. 1.

This is not one of the causes that could have been proceeded with in a state court, because the offense was against the United States, and not against the state; and the courts of the former are given exclusive cognizance of all offenses against the national government. It is evident that when congress exercises its exclusive powers of legislation for the territories, it is not as a local legislature. The authority is conferred by the same instrument that is the source of its other powers; and, in the language of the supreme court of the United States in Cohens v. Virginia, 6 Wheat. 426, it is to be exercised 'like all its other powers, in its high character as the legislature of the Union. ' It would seem, then, that the enabling act, and the ordinance adopted by its authority, have made this court the successor of the territorial court as to this case, and that process initiating in the latter court could be proceeded with her provided there be any authority to now punish the defendant for the crime charged. But it is contended that the power to punish in this case has ceased, because Utah was admitted as a state on the same footing as the other states, and, as claimed, the United States is without constitutional power to make criminal the act charged in the indictment, if now committed in Utah; and hence it has lost the power to punish the defendant for it. If the act would not constitute a crime against the United States if now committed, it would not follow that the power to punish...