THE LEGAL HISTORY OF UTAH


Arrested striking coal miners under guard, 1904

Legal history describes the procedures and sanctions of an orderly society. Utah's legal history includes the laws, customs, ideas, institutions, and practices which have governed its settlers and citizens. Its legal history also includes economic, political, religious, and social developments.

The Native American inhabitants of Utah governed by custom and oral arrangement; their arrangements had slight influence on incoming white settlers and their institutions. Mormon pioneers settling in Salt Lake valley did so for the most part without offending Indian tribal rights since they settled in an intertribal no-man's-land. Likewise, Spanish civil law had little impact on white settlers in Mexican territory. Such a contract was short-lived anyway, since the Mexican War ended Mexican claims to Utah Territory shortly after Mormons settled Salt Lake Valley.

Early Utah law was introduced by Mormons into their communities, and consisted of a mix of divine law, natural law, state and federal laws, and Mormon practices. In time, an unwritten western common law would also emerge. Persons with legal skills were uncommon and not especially sought out until after the Civil War. However, early acknowledgment that government has a responsibility to supervise social and economic life resulted in the creation of a territorial legislature and the provisional State of Deseret in 1850.

For many years, Utahns relied on Mormon Church institutions for civil government. After the arrival of the Mormons in the Salt Lake Valley in 1847, an ecclesiastical council and a marshal directed municipal affairs. In December 1847 a General Council took over the affairs of civil government. Bishop's courts for local wards provided a judicial process, with ecclesiastical high councils serving as appellate courts. Bishops, stake high councils, and the LDS First Presidency officiated as courts. Police power was placed in the Nauvoo Legion, and law enforcement officers were appointed. Church tithes and offerings served as community revenues.

Extralegal violence was rare compared to that found in other frontier communities. Litigation was discouraged and people were urged to settle their grievances in a system of arbitration before Bishop's courts where Mormon and non-Mormons generally received satisfactory justice. These ecclesiastical courts distinguished Utah from other frontier communities where vigilante committees periodically arose to help maintain law and order. Punishments also were lenient by comparison. When necessary, whipping of offenders was administered, since jails were unavailable. Prisoners were often housed with the sheriff, and posses frequently formed upon conclusion of church services.

Mormon practice of central direction, cooperation, and consensus formed a framework for government. Leading men would agree and others were expected to concur. Problems and concerns were openly discussed and basic decisions governing the community were made in religious services. Non-Mormons soon came to resent their lack of involvement in this process.

An attitude of stewardship framed the regulation of land, water use, and timber rights. Equal shares were given in return for labor. This reflected the reality of scarce supply as well as the religious idea of collective sharing.

Territorial life meant that while citizens could send a delegate to Congress he could not vote. Also, citizens were unable to elect their own governor and judges. Thus, the General Council in December 1848 formed itself into a convention and pushed for an election. On 12 March 1848 they elected Brigham Young as provisional governor, and also chose a secretary of state, a chief justice, and a legislative assembly. Although the convention proposed the offices of lieutenant governor and auditor, the General Council instead added an attorney general, an assessor/collector, a marshal, and a supervisor of roads. The existing ecclesiastical courts became civil courts and several bishops were elected as magistrates.

In July 1849 the first legislative assembly met and petitioned Congress for recognition as a provisional state. The territorial petition was withheld, however, since their territorial status had some ambiguity. Frustration mounted, since the Northwest Ordinance of 1787, which was the basic pattern for all U.S. territories on the continent, guaranteed civil rights to citizens in the territories and also provided that they could become states as conditions warranted. The provisional state of Deseret failed statehood in 1850 as well as numerous times until 1896 since its fortunes became mired in the debate over the expansion of free and slave states as well as the problem of polygamy. Brigham Young was officially appointed governor of Utah Territory, however; in addition, Indian agents, justices, and a secretary were also appointed. A census led to the election of a territorial assembly. The bill creating the territory was signed by President Millard Fillmore on 9 September 1850. He appointed ten territorial officials including Brigham Young--five Mormons and five non-Mormons.

Local governments gradually emerged with county governments being administered by a probate judge and three selectmen. In 1850 the territorial legislature created six counties whose names and boundaries changed nearly one hundred times before 1917, at which time the last county, Daggett, was created. These county selectmen appointed water masters and hired ground overseers and supervisors over roads and canyons. Selectmen became both the legislative and executive arms of county government. A probate judge dealt with estates, guardianship, and other civil affairs. Criminal jurisdiction was added but in time conflicted with the federal district courts, which were distrusted and avoided. Church courts continued as courts of arbitration.

Increasing settlement brought the formation of municipalities to provide specialized services such as animal control and regulation of commerce. In 1851 Salt Lake City was the first city to be chartered by the territorial legislature. It followed the American pattern of a mayor/council form of government. The council developed ordinances and policies which the mayor was charged to enforce. For example, scarcity of timber gave rise to a prohibition against harvesting green timber.

Territorial Utah, while imitating other states and communities, originated some of its own legal customs. Newly settled areas continued to place civil power in the hands of an ecclesiastical stake presidency and high council. This ecclesiastical municipal council provided instant order for a community as well as an orderly transition to civil government. In early Salt Lake City the city council was composed of members of the twelve apostles of the Mormon Church.

Land ownership and occupation were not governed by speculation and squatter's rights as was the case elsewhere in the United States. Speculation was prohibited and much land was reserved for later settlers. One could not hold more land than he could harvest in a single day. Common grazing fields were maintained until population density brought the apportionment of fields. An attitude of stewardship over the land was fostered. It was felt that the earth belonged to God and man's duty was to replenish it. Collectivism instead of capitalism prevailed until 1869 when Congress passed a law that land could be privately owned.

Riparian water rights which applied in most states did not apply in semi-arid Utah where water was critical to life and production. Water was developed cooperatively and public ownership of it prevailed.

Mining law was not legislated, but instead developed by custom as in other mining communities. These customs lasted as long as consensus permitted, and in time became legal codes which governed ownership and development of the rich silver, copper, and other metals of Utah.

Timber and grazing monopolies and charters were often granted to local leaders, although this practice angered non-Mormons.

Early territorial law provided against the abuse and neglect of women and children. It was a misdemeanor not to provide food, clothing, and shelter for one's family.

Female suffrage was passed by the territorial legislature in 1870, and it tended to give Mormons a distinct advantage at the polls. Speaking against female suffrage in 1896, Brigham H. Roberts felt that women would be at the mercy of their husbands, who would in effect have two votes, and he also felt placing women in politics would lessen their presence in strengthening the home. Despite his arguments, female suffrage was approved with statehood in 1896.

Both American and Utah legal history indicates a widespread distrust for judges, juries, and the law. Strict rulings on permissible evidence, selection of juries, and the election of judges were part of the effort to narrow their influence. Utah's experience with territorial judges contributed to this heightened distrust of the law, yet as a new territory it also adopted a legacy of law from other states and communities and did not exist in a legal vacuum.

Both the crusade against slavery with its post-Civil War congressional radicalism and the crafting of a state constitution reveal outside forces and ideas influencing Utah legal institutions for generations.

Territorial Utah demonstrated loyalty to the Union during the Civil War when many states were questioning it; Mormons generally were too strongly attached to America. Thus, Utah's struggle for home rule did not include separation from the United States. Later, increasing suppression of local autonomy by the government in an attempt to solve the polygamy problem was met with resistance but not obstruction. Leaders pursued a run-and-hide rather than stand-and-fight policy. It is noteworthy that this period provided an example of the United States government moving against an organized religion for what it regarded as immoral and offensive religious practices. The government claimed that "anti-monogamy was anti-American." Such opposition blurred the line between church and state, the same practice of which Mormons were accused.

As a result of federal action against polygamy, basic constitutional guarantees were violated; twelve thousand Mormons were disenfranchised by the Edmunds Act of 1882; women were forced to give testimony in court against their husbands; ex post facto laws punishing previous actions and bills of attainder against a certain class of citizens--polygamists--were enacted. Religious oaths were instituted. The assumption of guilt until proven innocent, delayed naturalization of applicants, and the disruption of trial by jury peers caused a clash of territorial administration policies with constitutional guarantees.

Mormons venerated the Constitution, since to them it protected personal choice and free agency. They argued that the First Amendment guaranteed freedom and free exercise of religion and that the Anti-Bigamy Act of 1862, the Edmunds Act of 1882, and the Edmunds-Tucker Act of 1887 violated the Bill of Rights. To them, the equal protection and the privileges and immunities clauses of the Fourteenth Amendment guaranteed their marriage practices. They had enjoyed their rights as former citizens of states, and felt such rights were transferable to the territory. Marriage, they claimed, is a contract between two individuals and cannot be impaired by state or federal action. It was argued that the Tenth Amendment reserved domestic powers like marriage to the state, thereby prohibiting federal intervention. These arguments mirrored the legal claims of the states' rights advocates prior to the Civil War.

The action of Congress was a historic departure. There was scant precedent for its action in objecting to religious tenets rather than dealing with the issue of territorial autonomy and statehood per se. However, upon challenge, the Supreme Court of the United States upheld the actions of Congress in Reynolds v. United States (1879), saying that a secular regulation against polygamy was within the constitutional powers in the territories. The court also used Thomas Jefferson's view that there was a distinction between freedom of conscience and freedom of conduct. The federal assault on polygamy became an assault on the Mormon Church through economic sanctions and the taking of property, which did not cease until the Manifesto of 1890 ending new polygamous unions.

The quest for statehood was finally achieved in 1896 after seven attempts in nearly half a century. The state constitutional convention met in Salt Lake City beginning 4 March 1895, and lasted sixty-six days. The framework for government was modeled after that of other states-- Nevada, Washington, Illinois, and New York in particular. The convention retained the anti-government philosophy of earlier 1872, 1882, 1887 documents. Yet in borrowing from other state constitutions, simplicity was lost. Borrowing the Board of Examiner provision from Nevada fragmented executive power since the governor shared the executive role of reviewing claims for payment. The legislature was allowed to further fragment executive power by the creation of boards and agencies. This popular distrust of government was widespread in late nineteenth-century America. In addition, complicated protections for religious freedom and the freedom from sectarian controls as well as injunctions against the union of church and state were placed in the document. Checks and balances were sometimes carried to extremes.

While statehood brought home rule and self-government without federal intervention, the fact that 75 percent of Utah's land mass was owned by the federal government guaranteed federal involvement in state and local government matters. Utah leaders saw themselves as a colony in a federal empire throughout most of the twentieth century, yet some Utah laws also had national importance. In the area of social justice, legislation improving mine working conditions was upheld before the U.S. Supreme Court in Holden v. Hardy (1897). A prohibition against women and children working in mines and a regulation of trade and work dangerous to the health and morals of children were also enacted. A juvenile court was created in 1905 to keep youth under eighteen years of age out of the criminal justice system.

In the 1920s, national Prohibition brought intrusion of the law into private lives and placed otherwise respectable people on the fringes of the law. It helped bring a cooperative federalism between the state and the national government, although in Utah much enforcement energy was spent in law enforcement agencies watching each other. The low salaries of lawmen and prosecutors contributed to problems with bribes and enforcement difficulties.

During the Great Depression cooperative federalism and mutual state-federal programs were accelerated. Utah declared a bank holiday in advance of the federal government's call for a national bank holiday. National industrial codes were adapted to Utah's needs, particularly in the coal industry. A voluntary moratorium on foreclosure of home mortgages was enacted by the state legislature in order to obtain federal monies.

The absence of a tradition of strong positive government provided a dilemma for lawmakers facing overwhelming welfare needs during the Great Depression. They were unwilling to finance unemployment compensation; yet, ironically, Utah received among the highest per capita federal expenditures in the nation. And at the end of the Great Depression when federal monies were reduced, the state reduced its welfare and social services outlay. The many forms of taxation created to offset the reduced property tax would become available for future uses.

With World War I and its aftermath, the spirit of cooperative federalism was expanded through grants in aid, transfer payments, general revenue sharing, payments in lieu of taxes (PILT), and block grants. Such programs characterized financial federalism till the mid-1980s.

Periodic efforts to expand or maintain state rights within the federal system were demonstrated by objections to federal laws and mandates requiring compliance with federal policies. A dispute over the ownership of the Great Salt Lake with its rich mineral resources was resolved in the courts in favor of the state. A sagebrush rebellion to control the exchange and utilize the resource of public lands was noteworthy in the 1970s and early 1980s.

The character of twentieth-century legal developments focused on modernizing archaic provisions in the law and state constitution which had been deliberately placed to restrict the ability to govern. Concerns were expressed that state government was declining in power and that its functions were passing to the federal government. Constitutional revisions occurred to help fit a modern state government in a dynamic federal system. The formation of a state Constitutional Revision Committee and of a little Hoover Commission in 1965 went beyond earlier attempts to modernize the Board of Examiners and strengthen the governor's power. Earlier reforms in 1921, 1933, and 1941 had served mainly to duplicate and proliferate executive agencies and commissions, not to centralize and strengthen the governor's office.

Enhanced public participation in the legislative process was furthered by requiring the legislature to meet once a year, and by the introduction of budget sessions and of special sessions, which the governor was empowered to convene for extraordinary purposes. In addition, the establishment of interim legislative study committees provided greater deliberation of issues and continuity between legislative sessions. A legislative council was introduced to help control elected officials. Such innovations enhanced the law-making process and strengthened the base of democratic institutions.

The modernization of local governments was begun when the nineteenth-century mayor-council form of government, often impotent and fraught with corruption, was reformed across America in the early twentieth century. The professional commission form of local government was put in its place. In 1959 legislation was approved permitting a strong-mayor form of government, which separated the powers of the board of commissioners from those of the mayor.

In 1971 the legislature proposed a constitutional amendment permitting similar optional forms for county governments through a referendum of the people. A variety of structural and management options was allowed, but most communities have been reluctant to introduce or approve these options. Municipal growth and development brought problems and occasional clashes within and among local government bodies. The local government reform process requires time and common sense. In 1978 a Boundary Commission Act permitted cities and counties to resolve annexation and boundary disputes in a non-judicial forum. The enactment by the legislature of fiscal procedures, purchasing, personnel management, and merit system laws in the 1970s and 1980s has improved the quality of state and local governments.

Coordination and planning on a regional and countywide basis to meet problems of air quality, transportation, and water management have been possible through councils of governments. Many local government services have been merged and are continuing to merge on a gradual basis, revealing the recognition of the increasing complexity of law enforcement, health, public safety, and environmental needs.

The legislature, while diversifying its resources and powers to meet a growing population and economy, generally has been reluctant to grant cities and counties home rule powers to tax and make policy, preferring to retain those powers. Yet, this attitude brings its own frustration to the legislature when it wonders why local governments keep coming to it for authority to solve local problems. Significantly, state and local governments continue to spend far less per capita than most of their counterparts nationally.

Historically, the courts in Utah have not been politically detached. Judges have stood for election or were appointed for their political persuasion, and were thereby subject to the winds of change. In 1967 a bipartisan nominating process was created to provide names of potential judges to the governor for appointment. This was extended to include the district and circuit courts; and local Justices of the Peace, while once elected, became appointed in the 1990s. Many judges had careers as city and county attorneys. The quality of training has enhanced the legal profession and improved the decisions rendered by the courts.

The legal institutions of Utah continue to reflect the ambivalent attitudes about encroachment by the federal government, as was also the case in the nineteenth and throughout the twentieth centuries. The pubic generally greets the positive actions by government at all levels reluctantly. Government and the law, while not necessarily considered evil, appear to be most accepted when they deal with emergencies and the absolutely necessary. Very often, policies and legislation which carry a moral force are likely to win approval. This, coupled with an occasional flair of individualism, has given distinctiveness to Utah legal institutions.

See: Nels Anderson, Desert Saints (1966); Leonard Arrington, Great Basin Kingdom (1966); Utah Foundation, State and Local Government in Utah (1973); John J. Flynn, "Federalism and Viable State Government: The History of Utah's Constitution," Utah Law Review (1966); John Nebeker, "Early Justice in Utah," Utah Historical Quarterly 3 (1976); Arvo Van Alstyne, "Local Government Modernization: A Utah Perspective," Utah Law Review (1971).

D. Michael Stewart