United States v. Church of Jesus Christ of Latter Day Saints

6 Utah 9 | Utah | 1889

Lead Opinion

Sandford, C. J.:

A petition was presented to this Court in the above-entitled action, signed by T. C. Bailey, Chairman of the Board of Trustees, Seventh school district; Budolph Alff, Chairman Board of Trustees, Eighth school district, and J. T. Millspaugh, Secretary Board of Trustees of Twelfth district, — for permission to be allowed to become parties therein. That petition was denied on the ground that they were not the proper parties, and had no right to be brought in as intervenors. The petition, however, contained serious charges reflecting upon the Beceiver appointed in that action, and upon his attorneys, and it was decided that, while the petition should not be granted, the charges of corruption, fraud, and improper and unprofessional conduct ought to be investigated. Leave was given, therefore, to the petitioners to file their petition in this Court. The persons .charged with improper conduct were required forthwith, as officers of the Court, to file their answers thereto; and in the language of the decision then made, “it should be referred to an Examiner to take such testimony as is offered both to sustain and disprove the charges contained in the petition.” The question of the amount of compensation which the Beceiver should be entitled to receive for his services having been theretofore by an order of this Court referred to an Examiner, it was further decided that question should be reserved until the report of the Examiner to be appointed to take proofs of improper and unprofessional conduct, should be received. Thereupon an order was entered, and the charges of mal-versation referred to Examiner Harkness. An examination was commenced before that examiner, and the receiver, Dyer, was sworn and interrogated as to his conduct. He refused, under the advice of his counsel, as appears from the record before us, to answer certain questions declared by the examiner to be proper. His refusal so to answer has been reported to this court, and an order is asked for declaring him guilty of contempt, and that he be punished therefor. 'A motion is also made for an amendment of the provisions of the order heretofore granted, denying the application of the school trustees, and providing for an examination of tbe said charges. The amendment requested is that, after providing that the examiner take and report such evidence as may be produced either by the petitioners or the receiver and his counsel, touching the matters in said petition set out, there be inserted after the words “ set out ” the following words : “ To-wit, charges of corruption, fraud and unprofessional conduct,” so as to define with more particularity the precise matters referred and to be examined before that referee.

The two applications, as they relate somewhat to the same matter, may be considered together. When the order of reference directing that testimony concerning the charges set forth in the petition was made, it was the intention of the Court that the examiner therein appointed should take proofs touching the alleged misconduct, of the officers of the court only, inasmuch as the question of, the amount of compensation to be allowed to the receiver had already been referred. This intention was evident from the decision of- the Court then rendered. If the order had been drawn so as to embody the purpose of - the Court, the amendment to the order now sought would have been unnecessary. If granted now, the amended order will incorporate the "intention and decision of the Court as then expressed, and we think the amendment should be allowed. As the order was originally drawn, the petitioners’ contention that the question of compensation w.as also referred had some grounds, if read alone, and not in connection with the decision of the Court. Under the order of the Court as then entered, the questions which the witness refused to answer were proper and pertinent, and the questions should have been answered. On such an examination as this the wiser course generally is not to stand on the accused’s legal rights, but to answer fully and in detail all questions that may have the remotest connection with the subject of the investigation. ' The ruling of the examiner by which he excluded questions relating to the conduct and financial condition of the receiver when acting as a private citizen, or acting in any other official capacity, was correct. The charges made against him were directed to his conduct as an officer of this court, and all questions that bore on that point, even though remote, and not clearly connected with it, should have been answered: The receiver, as appears from the testimony before us, was advised by his counsel that he need not answer the questions, the refusal of which has been reported by the referee to this court. It has been held in many cases similar to this that such advice, honestly given and accepted, and acted upon in good faith, is to be considered as exculpatory, and in mitigation of the offense. Capet v. Parker, S Sandf. 662. The receiver’s counsel were wrong in giving such advice. The order, standing alone, and not taken in connection with the decision of the Court, authorized and justified the questions put to the receiver. If, in their opinion, the order was incorrect, it was their duty to have promptly moved the Court for its correction or amendment ; and the examiner, on their stating their wish, would have doubtless suspended temporarily the examination of the witness until the decision of the Court upon their application to amend could have been obtained. Lansing v. Easton, 7 Paige, 364 ; Hilton v. Patterson, 18 Abb. Pr. 245. It has been held that a referee has no power to dismiss a suit because of a refusal of the plaintiff or a witness to testify. He should report the matter to the Court and await its decision. In this case, however, the examination has not been so fully closed that it may not be resumed. We are of the opinion that under the amended order the examination should proceed before the same examiner. We are not willing that the conduct of such officer should, when challenged so seriously as is the case here, be allowed to pass without a full and complete examination, by means of which the charges made may be either proven, or the persons accused exonerated. The hearing, therefore, must be continued as rapidly as possible. Were it not for the excuse presented by the receiver for his conduct before the examiner, a fine would be imposed on him. This refusal to answer, although no one has suffered therefrom, was unjustifiable and contemptuous, and, unexcused, would have merited serious and severe punishment. Under the circumstances presented here, however, the proceedings looking-to his punishment should be arrested, and the applica-tibn therefor denied. He will be allowed an opportunity in the examination, when resumed, to show that he purges himself of this particular contempt, by answering the questions ruled upon by the examiner as proper. The question of compensation to be allowed him will, as was heretofore directed, remain undisposed of until the completion of the examination now to-be resumed. An order will be entered providing for the further and speedy investigation of the charges of improper and unprofessional conduct, such investigation to be carried on before Examiner Harkness, the time and place of which will be fixed by the . Court in its order. As to the terms of the order ie-snbmitting the case to the examiner, I concur in the opinion read by Judge Henderson.

Hendebson, J.:

The reference to investigate the charges against the receiver and his attorneys has failed. "When the report of the examiner to whom was referred 'the matter of compensation to the receiver and attorneys was' presented to this court, or it was announced that it was ready to be filed, the petition of the school trustees was presented, asking for the right to intervene as parties to that proceeding, and we held that the interests of the petitioners were too remote to be allowed to intervene as parties. But the petition contained charges of grossly improper, fraudulent and dishonest conduct; that by this misconduct the fund had suffered a loss of over $200,000, The charge was distinctly made that this court had been imposed upon and deceived by the representations of the receiver and his attorneys; and that the receiver ha.d fraudulently acted in collusion with the defendants in the case, and with some of his bondsmen, and that fraudulent and unconscionable compensation had been sought. At once, upon the hearing of this petition, without entering upon any investigation of the matters contained in Judge Sprague’s reports as to the amount of compensation, deeming that question wholly immaterial to us if these charges contained in this pétition were true, and that the question of the amount of compensation would never be reached in this court in that event, this court directed that tbe petition .be received and filed as charges o£ official misconduct on the part of the receiver and his attorneys so far as such fraud and misconduct were alleged therein, and directed an examination of the charges at once. The session of the court necessarily terminated on the day this order was made. The engagements of the judges imperatively called them to their respective districts at once thereafter; but to facilitate the investigation it was sought to refer the taking of testimony upon these charges to an examiner, -and, with the consent of all parties concerned, selection was made of one of the most eminent and learned members of the bar of this territory, whose action in the matter has fully justified the confidence reposed in him. At the time of' making this order, the court filed in writing a memorandum of the order that was intended by it. This was done in view of the fact that the court would necessarily adjourn before the order could formally be reduced to writing and entered upon the journal, and attention was expressly called to it at the time and counsel were directed to co-operate in preparing the order pursuant to the directions. This seems to have been neglected, and the order entered and given to the commissioner referred all matters contained in the petition to the examiner. No answer had been filed to the charges, and under such circumstances the reference was somewhat uncertain. Ample time was. given by the order to each party to produce testimony. The answer of respondents was thereafter filed, traversing the entire petition; and on the day appointed by the order all these matters were taken to the examiner, and an examination attempted, an i he has reported to us 65 pages of proceedings had before him, and not more than ten pages of this is testimony. At once an application was made for an intervention by active parties. The parties differed widely as to the scope of examination. On the part of the petitioners it was claimed that it was but a continuation of the examination before Judge Sprague, and that everything was in issue that was put in issue by the petition and answer; that the respondents, having been examined before Judge Sprague, could be’recalled; and that their character was in issue tbe same as though they were plaintiffs in an action of libel or slander; and that they might be cross-examined upon that theory. On the other hand, this was denied, and it was claimed that nothing upon the subject of compensation could- be received. The petitioners called respondent Dyer, and proceeded to examine him upon the theory claimed by them. The examiner was without authority conferred by the order of reference. We fully appreciate the embarrassing situation of the learned examiner, and fully approve his conduct of the matter before him, and only regret that he was not vested with authority in the premises; and we propose to refer it back to him, and give him that authority. We can see no good reason why the petitioners should not have proceeded with other testimony, especially in view of the fact that the respondents offered to stipulate that the examiner should have authority to pass* upon all questions of the admissibility of the testimony and the scope of the inquiry. » It is but fair that a speedy investigation should be had. Counsel, as well as the receiver, are resting under grave charges.

The examination to be had before the Examiner is in no view a continuation of the investigation before Judge Sprague. We have expressly reserved that question until after this investigation. We have not examined tfie matters of that report, and do not care to until we hear from this investigation. If in the end it comes to be a mere question of computing and estimating the amount of compensation, this Court will proceed to do this upon its responsibility as guardian of the fund in controversy, and will seek such information as is necessary for that purpose. On the other hand, if these charges of fraud are sustained, no inquiry of that kind will become necessary, and the bond of this receiver will stand as an indemnity to 'make good any loss tbe fund has sustained thereby. The examination is to be had under the order of reference. It is the order of the Court which specifies the .matters to be investigated, and confers jurisdiction upon the commissioner, and points out the range of inquiry ; and the parties cannot, by their allegations and denials upon other or immaterial matters', make them material. We have examined witb care tbe supplemental report made by tbe examiner, containing a detailed statement of all that transpired before bim, and we are satisfied witb tbe rulings be took tbe responsibility of making, as well as those be intimated be would make if be was bimself bearing tbe case, and bad authority in the premises. An order should be entered referring it back to tbe examiner, and tbe order should be so modified as to provide that tbe examiner shall proceed to take testimony produced by either tbe petitioners or respondents respecting any and all allegations of fraud, corruption, misconduct, fraudulent claims, and charges for compensation and unprofessional conduct on tbe part of Frank H. Dyer as receiver in this case, and of George S. Peters and Parley L. Williams as bis attorneys, contained in said petition; that said Robert Harkness is vested witb all tbe powers and authority of examiner of this Court for such examination ; that be be authorized to pass upon and determine all questions as to tbe admissibility of testimony, tbe same as though tbe cause was being tried before him, subject, however, to tbe right of either party to appeal to this Court by way of exceptions, to bis rulings thereon; that either of tbe parties interested be authorized to take subpoenas from this Court for witnesses to appear before said examiner ; that said examiner be empowered to employ officers, either Federal or Territorial, to attend bim under bis direction, and to fix their compensation; to employ stenographers, and to swear witnesses ; that such examination on tbe part of petitioners begin on Thursday next, January 24, 1889, and that they be given four days in which to give such testimony; that tbe respondents, in reply, commence on Thursday, January 31, 1889, and that they be given four days ; and that Thursday and Friday, February 7th and 8th, be given by said examiner to tbe taking-of rebutting testimony, to be divided between the parties as tbe commissioner shall direct; and that said commissioner make report of such testimony on or before Wednesday, February 13, 1889; and that tbe bearing upon such report be set for February 16, 1889. Tbe order should further provide that tbe examiner may change the above allotment and division of time in any manner be may see fit, but only so tbat the final report may be made and filed by February 16, 1889. I concur with the Chief Justice in his opinion just delivered as to the matter of contempt.

BoebMAN, J. :

In my view of this matter, the questions asked the receiver as a witness, and which he refused to answer, were, as the examiner ruled, proper, and should have been answered, and this.he should be required to do, whether the amendment of the order as prayed be allowed or disallowed. It is no doubt true that nothing was intended to be referred to 'the examiner except the charges made in the petition of Messrs. Bailey, Alff, and Mills-paugh. But one of the charges made in that petition was that the receiver had made an unconscionable claim for compensation; and, that being so, such claim was a proper, although not the main or most important, subject of inquiry by the examiner. It would have been misconduct in the receiver to have made such a claim. If I have read aright the report of the examiner, his view was that such matters in the petition as referred to other subjects than the charges of misconduct, fraud, etc., were not before him, but that all of the charges made by the petitioners against the receiver and his attorneys were before him for investigation. This view was correct, and I approve the rulings made by the examiner on this subject. The amendment sought to be made to the order of the Court is, in my view,' not very important, and it would not materially change the subjects of investigation, and with the change made the receiver would still be required to answer the questions. The answer of the receiver and his attorneys took issue on the unconscionableness of the receiver’s alleged claim for compensation ; and as to the wording of the order the Court had advised counsel to confer and to examine it before it should be entered. This was not done, and it seems to me that it is now too late, even although the order did not technically conform to the wording of the opinion of the Court delivered at the time. The order should now be that the receiver make answer to the questions, and, if he still decline to do so, that he should be punished as for contempt.

I heartily concur in referring the subject of the charges back again to the examiner ; and the renewed order of the Court will give ample authority to the examiner to fully investigate all the charges made, and to confine the investigation to the charges made in the petition. The question of the amount of compensation that should be allowed the receiver is only incidental in this investigation. That question will come before us for fuller examination when we come to consider the 'report of the former examiner, Judge E. T. Sprague. Its purpose in this investigation is to show whether the receiver’s claim be unconscionable or not. If it be so, the Court should know it; not, perhaps, to fix what 1 his compensation should be, but to enable the Court to know whether the receiver has been acting in good faith with the Court. If he has not, he should be removed. Evidence as to his compensation should be allowed so far as it may, even in the remotest degree, show misconduct on the part of the receiver, as charged, or that any claim he may have made is unconscionable or fraudulent. These charges of fraud, corruption, and misconduct in the office of receiver and of his attorneys are so grave and serious that the Court cannot and will not pass them by, and the parties making them will be allowed ample time and opportunity to substantiate them, if it can be done ; and the respondents will also be allowed ample time and opportunity to defend themselves against the charges, and to introduce evidence bearing upon their exoneration. It has been claimed and urged that the petitioners are prepared to substantiate the charges they have made ; and the parties charged have been equally positive that no such charges can be substantiated, and that they are prepared to show ■themselves entirely free from them. It is to be hoped that all parties will now improve the opportunity again offered to bring out all the facts in the matter. The investigation, to be satisfactory, must be searching and complete, no matter what the result may be. Counsel should keep this fact in view throughout the whole examination. The Court will insist that these charges be sifted to the very bottom, and there should be no delay or obstruction to such searching examination. The parties are officers of this Court, and the Court owes it to itself that the.investigation shall be thorough, and will be satisfied with nothing less. Counsel on both sides should earnestly endeavor to aid the examiner and the Court with that view. If any witness refuse to answer any question of importance, the question could be waived for the time being, and the examination allowed to proceed as to other branches or charges set forth by petitioners. The doors should be open to the fullest extent, and even, if necessary, go to the very verge as to competency. Of course, matters in no way connected. with the charges made ought not to be brought in, but all that is competent should be brought out. The Court is confined to evidence upon questions in issue, and cannot go outside to investigate extraneous matters, and such as are not connected with the charges made. But the changes are broad and specific, and, if they be sustained by evidence, no additional or outside matters would be necessary ; for, if the charges as made be true, the Court would not make any allowance of compensation to the receiver or to his counsel, and" probably other action, would be taken by the Court. The new order embodied in the opinion of Associate Justice Henderson, and which is to be entered in the case, as to a re-submission of the matter to the examiner, conforms substantially to my views, and will give the fullest opportunity to introduce the evidence as to the alleged unconscionable or fraudulent character of the claim of the receiver for compensation.

Contempt — Disbespecteuh Language to the Coubt — Language used in a certain paper submitted to the Court quoted and held to be a contempt of court.

Afterwards the order was amended so as to confine the hearing before the examiner to any and all allegations of fraud, corruption, misconduct, or fraudulent claims and charges for compensation and unprofessional conduct on the part of the receiver and his attorneys.

Thereupon the School Trustees filed in court the writing set out in the following opinion and therein adjudged to be contemptuous :

Judd, J. :

On the 1st day of December, 1888, T. C. Bailey, Rudolph Alíf and J. F. Millspaugh, describing themselves to be Trustees of the Seventh and Eighth School Districts, and Secretary of the Board of Trustees of the Twelfth School District, brought before this court a petition in which they set out by description divers and sundry pieces of real estate, alleging that the same was the property of said late corporation. They likewise alleged that on March 23,1888, April 4, 1888, and May-14. 1888, Receiver Dyer instituted actions in the Third Judicial District Court of this Territory against various defendants, and in the complaints in said suits, among other things, alleged that said last above-described tracts of land were obtained and held by said late corporation in violation of section 3 of the act of July 1, 1862, and not for the purposes of the worship of God, or parsonages, or burial grounds, and that the claims of the various defendants in said suits were invalid, and prayed that the deeds of said various defendants be held to be col-orable, and ‘that the cloud upon the title created by such deeds be removed, and that the possession of the said lands be adjudged to the said receiver for the uses and purposes mentioned in the said section 3 of the act of March 3,1887.

The petition then proceeds to state that afterwards, on or about the 9th day of July, 1888, the said receiver and the defendants to the suits above named compromised said suit, and in lieu of said tracts of land described in said complaint, except a portion of lot 8 in block 76, tbat said receiver tooktbe sum of $84,666.15, or a note therefor, to ■ stand in the place thereof, and to be treated and applied as ■ the land should have been’ treated and applied ; that the solicitors of said corporation were the attorneys of said defendants, except one, in said compromises, and thereby admitted that the land had been obtained by the late corporation, in violation of said acts of Congress, and that the plaintiff was entitled to recover if said acts were valid, and in effect admitted that the money received should be substituted for said lands, and should be applied for the benefit of said common schools ; that the order of this court, authorizing the said receiver to compromise said suits, was made by the Court, “as your petitioners are informed and believe, solely upon the recommendations and representations of the receiver' and his solicitors, who stated to the Court that the estimates in the petition for authority to compromise were the reasonable values of said tracts under the circumstances ; and that said compromises were fair and reasonable. Tour petitioners charge, however, that said tracts of land were worth $225,000, and that $84,666.15 was a grossly inadequate valuation of property ; that no-evidence was heard by the Court in regard to said compromise, and your petitioners believe that the Court was misled by the said representations and recommendations of the receiver and his solicitors ; that the said order of the Court required the receiver to report said compromises to the Court for its approval, and that such report has not been made.”

The petition then proceeds to allege that the compromises should be set aside ; but, if they are allowed to stand, then the money or notes, or other evidences of indebtedness, or the proceeds thereof, taken for or in lieu of said land, must be applied as the land and the proceeds thereof were required to be.

The petition further alleges that the said receiver now has in his possession the sum of $75,000, received in compromise for cattle and other property ; that said property, as petitioners are informed and believe, was worth at the time $250,000 ; that it was estimated by the parties to this suit in a stipulation of facts made October 19, 1889, to be worth tbe sum of $268,982.39 ; and that this transaction between the receiver and defendant corporation was made without authority from this Court. And, further, that since the appointment of said receiver he has obtained possession of 30,000 sheep, the property of the defendant corporation ; and after receiving the same he rented them without any authority from the Court, and without public notice, to one W. L. Pickard, a surety upon said receiver’s bond, at the rate of 20 cents per head per annum, when the customary price was from 40 to 50 cents per head, and that in such renting of said sheep the fund sustained a loss of about $5,000.

The petition further alleges, as petitioners are informed and believe, that there is property to a large amount, of which said receiver has not taken possession, that was owmed by said defendant corporation and was in the possession of its agents, or of others for said corporation, after said receiver qualified, and that he could have taken or obtained possession of said property by the use of reasonable diligence as receiver, and that his failure to do so was from want of attention to his- duties as receiver, or from willful negligence, or through combination with agents of the late corporation.

The petition further alleges that the receiver, after he had entered upon his duties as such, retained one P. L. Williams, who was and is Territorial Commissioner of Schools, and one George S. Peters, who was and is the attorney for the United States in this Territory, as his attorneys and solicitors ; that the said receiver was, at the time of his appointment, and now is, United States Marshal for said Territory; that as receiver he presented a claim for allowance to him for clerk hire, compensation to solicitors, agents, and employes, for office rent, stationery, and other expenses, amounting to the sum of $7,865.53 ; tüat, not having yet been made parties to this proceeding, or-granted leave to appear therein, “your petitioners have not examined the said report of expenses of the receiver sufficiently to point out objections thereto ; that such an examination would involve a scrutiny of vouchers, and probably an examination of witnesses ; bnt that, if permitted by tbe Court to do so, your petitioners, as they are informed and believe, can point out well-founded objections to said account.”

The petition further states that the receiver has presented a claim for allowance to himself for his individual services as receiver, of $25,000, and in addition each df his solicitors presented a claim for $10,000, said claims aggregating- $52,865.28 ; that said claims for allowance were referred to the examiner in this case to take testimony as to the amount to be allowed ; that the United States Attorney for Utah, and the Territorial Commissioner of Schools, both appeared for the receiver in the taking of such testimony, and no one appeared for the United States or for the said common schools ; that on such examination the defendant corporation at first appeared by its solicitors, Messrs. Sheeks & Bawlins, and by them the first witnesses produced by the receiver were cross-examined, but after-wards, as petitioners are informed and believe, they were instructed by the defendants not to cross-examine and not to contest the claims of the receiver or of his solicitors, and thereupon they ceased to make any further contest, and the examination became and was wholly an ex-'parte examination by the receiver and his solicitors before said referee.

The petition then proceeds to allege that under the-law George S. Peters, as United States District Attorney, was bound to appear, by virtue of his office, for the United States in all suits to which the United States was a party; and that he was not entitled to have or receive any sum for any services he may have performed as solicitor for the receiver in this case, and that the claim of the said Williams as solicitor for said receiver was much too large.

The petition then proceeds in so many words to charge as follows : “ Your petitioners further represent that the amount, $25,000, claimed by the receiver for his individual services, is grossly excessive, exorbitant and unconscionable ; that the allowances to the receiver for his services must be only for those rendered by himself, and he cannot be allowed for services for which his agents and employees may be allowed and paid.”

The petition further states that the difference between1 the amount for which the 30,000 sheep above mentioned could have been rented, and the amount for which they were rented, is about $5000, and that this amount should be deducted from the receiver’s compensation, if in view of his breaches of duty, he is entitled'to any compensation; and if it be that he so rented said sheep in return for any benefit to himself, or the hope thereof, then he ought not to receive any compensation, and said contract of renting should be disapproved, and the receiver held for all loss to the fund in consequence of such wrongful renting.

The petition further states that the “ petitioners are informed and believe that the sum of $75,000 above mentioned, received from the defendant in compromise for certain property above mentioned, was a grossly inadequate consideration, and the receiver should be held to account to the fund for the difference between $75,000 and a fair consideration for such property, and such difference your petitioners believe is not less than $175,000 ; or that said transaction should be disapproved by the Court, and the receiver held to a strict accountability for all loss in consequence of his wrongful action ; and, further, that the receiver should be held accountable for the loss to the fund, and to the common schools, caused by the compromise upon the real estate above mentioned ; and this loss, your petitioners charge, on information and belief, is not less than $135,000, and that, further, if said receiver be allowed any compensation at this time, it should not in any view exceed $5000.”

The petition then proceeds to charge that inasmuch as no one has appeared on behalf of the common schools, the fund is likely to be greatly diminished by said claims made against it, and that the appearance of some one for the common schools is rendered absolutely necessary to the ends of justice ; and the fact that the Commissioner of Common Schools of this Territory is employed by said receiver against the interest of said schools, and that the ■United States Attorney for this Territory is also employed against the interest of said schools, and that tbe receiver bimself is an officer of the United States, and that they are claiming that by 'a compromise the said schools have already been deprived of a large portion of the proceeds of said lands, and that the proceeds have become the property of the United States, fürnish additional- reasons for permitting the trustees of district schools to appear in this proceeding . Wherefore the petitioners pray as follows: “That they may be made parties to such proceedings, or that they may be allowed to appear by their solicitors, or otherwise, in order to defend and protect the interests of the common schools they represent, and preserve so much of the fund as may belong to said schools, and that such other trustees of district schools as may wish to come in may also be made parties, or allowed to appear, and that your petitioners may be allowed to produce, evidence to prove and substantiate the facts stated in this petition, and that your petitioners may have such other and further relief as to equity belongs, and as to this Court appears to be equitable.” Signed and sworn to by T. C. Bailey, Chairman Board of Trustees, 7th District, Budolph Alff, Chairman Board of Trustees, 8th District, J. F. Millspaugh, Secretary Board of Trustees, 12th District.

Upon the application of the solicitors of said petitioners to be allowed to file said petition in said above-entitled cause, to become parties thereto, this court filed an opinion, written by Henderson, J., in substance as follows : “This is an application of certain school trustees to be allowed to intervene as parties to the case. We are of the opinion that petitioners do not show by their petition any right to intervene as parties. There is nothing to show that the Government is not disposed to look after the interests of the fund, and the interests of petitioners as school trustees are too remote to be recognized by an order allowing them to intervene. But the petition which has been read contains charges of a grave and serious nature against the receiver and his attorneys, Messrs. George 8. Peters and Parley L. Williams. The charge has been directly made that the receiver has acted corruptly, and in criminal collusion with the defendants, and that this Court bas been imposed upon by tbe representations of tbe receiver and his said attorneys, and a, fraud thereby accomplished. If this be true, a crime bas been committed, and this Court cannot and will not pass it by without attention. As tbe action of these officers charged with a delicate and difficult duty has been so seriously challenged, they should be met by responsible accusers, and have the opportunity to confront them. Either the receiver and his attorneys have been guilty of a crime, or some person or persons are interested in falsely accusing them. The petition, upon being verified and indorsed by some persons responsible for the costs which may be incurred, should be received and filed as charges against the receiver and his attorneys, and they should each be required to file their respective answers thereto, so far as the charges of corruption, fraud and unprofessional conduct are charged against them, respectively, and upon the filing of their answers it should stand referred to an examiner, to take such testimony as is offered both to sustain and disprove the charges contained in the petition, and report the same to this Court on or before the next regular term of this Court. If the charges of corruption and improper conduct are sustained, and the fund in controversy in this case thereby preserved and protected, provision can hereafter be made for the payment of expenses incurred ; but in the meantime we shall postpone the question of compensation to the receiver and attorneys until the bringing in of the report. We have only had a few hours to consider this matter, and therefore we have not had time to state more in detail our reasons for this action. An order should be entered conformable to this opinion.”

Answers were filed by the said Dyer and his solicitors in due time, denying all said charges in full. When this opinion was rendered by the Court, it was distinctly stated to the persons interested, that the order should be drawn in conformity with the opinion, to be accepted and agreed upon by the parties and attorneys on both sides, and when such was done it should be handed to the clerk of this Court, to be entered upon its minutes. Inasmuch as the question of compensation to the receiver had already been referred to tbe clerk of this Court as special commissioner, it was not thought proper or necessary to refer that question again to another commissioner, but it was intended, ■as the opinion above set out clearly indicates, to refer the charges of wrong action by the receiver and his attorneys to a special commissioner, instead of which, however, an order, which was not presented to the Court, seems to have been drawn and entered, which in so many words refers to Mr. Robert Harkness the case, to take and report to this Court such evidence as may by the petitioners or the receiver and his counsel be produced, touching the matters in said petition set out. This order, as will be clearly seen, was not in accordance with the opinion of the Court, for it was not intended to refer the question of compensation to the receiver, it having already, as above stated, been referred to another person, as special commissioner, to take proof and report thereon. How be it, when the parties met before Commissioner Harkness they differed materially as to the matters that were referred, one side insisting upon taking proof upon all the matters mentioned in the petition, and the other side insisting upon confining the investigation within the scope indicated by the opinion of the Court. Such proceedings were had as resulted in the application to this Court to amend or reform its order of reference, and upon that application the Court made the following order : “It is hereby ordered that the motion to amend the journal entry be, and the same is hereby, allowed; and that the said Robert Harkness, the examiner heretofore appointed, proceed and take such testimony as may be produced by either party to this proceeding respecting any and all allegations of fraud, corruption, misconduct, or fraudulent and unconscionable claims and charges for compensation, and unprofessional conduct on the part of Frank H. Dyer, as receiver in the case, and of George S. Peters and Parley L. Williams, as his attorneys, contained in said petition of said school trustees heretofore filed in this Court.”

It will be observed that the petition of the persons heretofore mentioned expressly charged that the receiver and his attorneys, Peters & Williams, misled and deceived the Court into the adoption of a compromise of the suit against the defendants for the recovery of the real estate mentioned, and that by this fraud and deception there was a loss to the fund of over $100,000. It was further charged that the receiver rented 30,000 sheep for 20 cents per head per an-num, when he could have gotten 40 cents per head; and it was further charged that he compromised a claim for cattle for $75,000 that was worth $268,998.39, and that the transaction was made without the authority of the Court; and it is further charged that property to a large amount, which the receiver could have taken possession of, belonging to the late corporation,was by him neglected; and that his failure to do so was for the want of attention to his duties as receiver, or from willful negligence, or “ through combination with agents of the late corporation.” And it was charged that Peters abandoned his duty as district attorney to the government, and took employment from the receiver, and that he was making a claim against the interests of his client, to-wit, the government, and thereby impliedly charged with malfeasance and corruption in office. It was further charged that P. L. Williams, a commissioner of schools accepted employment against the interests of the school fund, and that he was guilty of official misconduct, and that finally the claim upon the part of the receiver for $25,000 as compensation, to use the exact language of the petition, “is grossly exorbitant, excessive, and unconscionable.” It is difficult to imagine how stronger charges than these could have been made, and even if one of them should be true, then the receiver and his solicitors are not only not entitled to compensation, but the receiver should be dismissed from his office as such, and his attorneys disbarred from the right to practice in the Courts of this Territory. Taking this view of the matter, the Court readily, and without hesitation, sought by all means in its power to give to these petitioners an opportunity to prove the charges, and hence in its amended order made the reference as broad as it could well be made, and even went so far as to include in the reference all allegations of fraud, corruption, and misconduct or fraudulent and unconscionable claims and charges for compensation, and unprofessional conduct on tbe part of tbe receiver. On tbe day after tbe last order was made -said petitioners, together witb one other person, by tbe name of L. U. Colbatb, wbo bad not heretofore appeared before tbe Court, came into Court and presented through their counsel a paper writing, containing, in substance, tbe following “ Unto tbe Court your petitioners, tbe school trustees, respectfully state: Tbe order of tbe Court, as now modified by tbe Court, has totally changed tbe nature of this proceeding. A petition in chancery has been transformed into a criminal complaint. We came here to contest tbe compensation of tbe receiver and bis solicitors,- and our petition was for that purpose. Under tbe former order of tbe Court we could have done so; under this: order we cannot. Tbe Court has now ruled that we cannot’ do tbe only thing, that, as school trustees,we are.interested in' doing, or bad tbe right -to do. We are completely excluded by this amended order from performing tbe only duty in connection witb tbe matter that our office places', upon us. But by this amended order tbe Court would impose upon us the duty of carrying on an investigation into-tbe conduct of tbe officers of tbe Court for tbe sole benefit of tbe Court, while confining by their order tbe inquiry within narrow limits. Tbe Court has decided that our particular inquiries of tbe receiver were proper, but at tbe same time has ruled that all other questions of the same nature are improper. Tbe Court has so changed the order that it is doubtful whether we could introduce testimony uponmost of the allegations of tbe petition, because, legally, they do not amount to charges of fraud, corruption, or professional misconduct. We are cut off from all inquiry into anything except those particular statements in tbe petition which directly and in sufficient legal phrase charge fraud, corruption, or professional misconduct. We can offer proof under this order only of a charge for compensation that is both fraudulent and unconscionable. We have no allegation of such a charge in our petition, and therefore we can offer no proof whatever on tbe subject of compensation. Had we understood when this reference was made that tbe investigation would be limited as it now is, we would then have declined to proceed. If it be tbe duty of the Court to carefully scrutinize the conduct of its own receiver, and if it would place this duty upon us, then it should not limit the investigation, as it now does, to particular acts, and those alone, but it, in justice to us, should extend the investigation to his entire conduct as receiver. In assuming the duty of the Court, as we would, were we to proceed under this order, we would be so confined and hampered that we could not make our investigation complete. "While proceeding under the original order, we were authorized to offer evidence as to everything that the receiver had done or had failed to do, in order -that we might enable the Court to fix the compensation of his services. But this matter being excluded by the amended order, only a small part of the receiver’s doings can be investigated. Under these circumstances, we believe it would be better that the Court, if it so desires, should investigate the conduct of its officers for itself, in a proceeding where the examination would not be cramped and narrowed as it is under this order. In that way the examination would be more thorough, and more satisfactory to the Court. As long as we had some chance of benefiting the common schools of this territory, we thought it our duty to proceed, but we ■conceive it to be no part of our duties as school trustees to prosecute charges of fraud and corruption against officers of this Court, nor do we conceive it a part of our duties either as school trustees or as private citizens, to incur the large expense of summoning witnesses from different counties in the territory, and even from Idaho and Arizona, merely to assist the Court in scrutinizing particular acts of the receiver; and in view of the facts above stated, and the ■complete change in the character of the investigation made at this late day, we must decline to assume the functions of a grand jury, or to attempt to perform the duties, of the Court in investigating the conduct of its own officers. All of which we respectfully submit.”

It is difficult to conceive of a more deliberate and barefaced attempt to trifle with the Court than has been attempted by the conduct of these petitioners. They •assume the responsibility of .making charges against officers and attorneys of this Court which were of such a character as nd Court could overlook. Every opportunity has been given to them to have a full and ample hearing-to substantiate the charges, and after that they come into this Court with a paper whose statements are untrue, and of a most scurrilous nature, and couched in the most disrespectful language, and by innuendo, and almost by direct charge, attempt to put the Court in the position .of undertaking by itself to shield its officer and its attorneys against an investigation of charges under which no man can stand up and face an honest community. The paper is full of false assumption from end to .end, as can easily be seen by reference to facts heretofore recited. They undertake, in the paper last quoted, to say : “We can offer proof under this order only to the charge for compensation that is both fraudulent and unconscionable. We have no allegations of such a charge in our petition; therefore we can offer no proof whatever on the subject of compensation,” — when the fact is their original petition, in so many words, charged “ that the amount of compensation, $25,000, claimed by said receiver for his individual services, is grossly exorbitant, excessive and unconscionable.” And it will be seen that in the order made by the Court, and complained of by the petitioners, the exact words, “fraudulent and unconscionable,” are used with reference to the charges for compensation by the receiver. The paper has no place whatever in the proceedings. Nothing is asked by it. It is wholly voluntary, and gratuitous, and was evidently only for the purpose of putting in studied phrase and in writing contemptuous and insolent language. It is impossible for this Court to' maintain its integrity and pass by without notice and without action such a contemptuous proceeding as these petitioners have been guilty of, and we are of the opinion that the clerk of this Court should issue a written notice to each of the persons, Rudolph Alff, J. E. Millspaugh, L. U. Colbath, and T. C. Bailey, requiring them to appear before this Court on to-morrow morning, January 30th, at 10 o’clock A. M., to show cause why they should not be punished for their contempt; and, in case they fail *to appear, tbe clerk shall issue writ of attachment for their arrest, and to bring them forthwith before the Court.

Sandeord, C. J., and Henderson, J., concurred.

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Dissenting Opinion

BoreMAN, J.,

dissented.

The School Trustees having been cited to appear, made answer to show cause why. they should not be punished as for contempt. The answer alleged that it being proposed to take an aggregate of $52,000 from the fund, they were authorized by their respective school boards to contest these allowances, that on that ground they had filed their petition, that their intervention being refused, they yet were permitted to offer evidence under the order of the Court; that they were advised by their solicitors that under the order they would be in almost the same position as if allowed to intervene ; that answer was made by the receiver and his attorneys, denying the allegations of their petition, that the examination was begun before the referee, but was closed by the receiver insisting on construing the order to suit his own views, that being cited as for contempt, he made application to amend and change the order, which amendment was allowed ; that the solicitors for the School Trustees in order that there might be no misunderstanding asked for the following insertion : That testimony should be taken “ as to whether $25,000 is an excessive, exorbitant, and unconscionable charge for what said receiver has done, and in proof of such issue, any evidence may be offered of what the receiver has done or of what he has not done that he should have done that this insertion the Court declined to make ; that thereupon the School Trustees were advised by their solicitors that the amended order of reference confined the issue to charges of fraud, corruption, misconduct, fraudulent and unconscionable charges and claims for compensation or professional misconduct, and that there were no allegations in their petition that were charges of fraud, corruption or misconduct except one, and none that were charges of fraudulent and unconscionable claims or professionable misconduct, and that they would probably be permitted to offer no proof on any of tbe allegations of the petition except the single one of the receiver having failed to take possession of certain property that he could have taken possession of, and in view of the situation they deemed it necessary, in courtesy and deference to the Court, and in justice to themselves, to state to the Court their reasons for declining to proceed ; that their statements made in the paper which they submitted to the Court, so far as they are statements of legal conclusions, were made upon the advice given to them by their solicitors ; that they were advised by their solicitors that they could offer proof under this order only of a charge for compensation that was both fraudulent and unconscionable. They were further advised that the allegation that the claim of the receiver was grossly exorbitant, excessive and unconscionable, was not a charge of a fraudulent and unconscionable claim, because there was a distinction between a fraudulent and unconscionable claim and an excessive, exorbitant and unconscionable claim, and that they, therefore, could offer no-proof whatever on the subject of compensation.

Upon the filing of this answer, the following opinion was delivered :

Judd, J. :

Upon January 80th the parties heretofore adjudged by this Court to be in contempt came into Court by their attorneys, and presented an answer to the charge against them, in which they use the following language: “ Tour respondents further desire to represent to the Court that the information, which they have collected at great trouble and cost, is of a nature that should come under the notice of the Court, and that information, and the names of the witnesses, they will be glad to submit to the Court.” When the petition was first presented by these persons to the Court, making such serious charges against Receiver Dyer and Attorneys Peters and Williams, the Court then had, and at all times since has, determined that no stone should be left unturned in making a most thorough and searching-investigation of said charges. The offer by these petitioners, made now in their last response, to furnish to the Court evidence and information wbereby said charges can be proved, is accepted. If these charges which hav6 been made shall be sustained, so far as the question of compensation to Dyer and his solicitors is concerned, it will be one-of easy solution; for, if they have been guilty of the conduct charged, then this Court will not allow them any compensation for any sum, so that these petitioners can easily reach the question of compensation, concerning which they seem so anxious, by furnishing this court with the proof, which they say is in their possession and that they have collected at great trouble and cost. If they have acted in this matter in good faith, and if they are now acting in good faith, and if they have acted upon information which is of the value that they seem to attach to it, and the charges are sustained, then the question of compensation will be settled without a hearing upon the report of Com- ' missioner Sprague, to whom the question of compensation 'was referred. It is now required of them that they furnish to the attorneys to be appointed by this Court any and all information which they may have, of every kind and character, concerning the charges which they have made in their petition against Dyer and his solicitors, and that they likewise and in like manner furnish the names of their witnesses, together with a written statement of what particular charge they will testify about, so that the attorneys to be appointed by this Court may be able to proceed intelligently with the investigation.

So far as the disposition of the case which is now pending before this Court against these petitioners for contempt is concerned, the decision will be postponed until an investigation is made of the charges heretofore mentioned. "We are of the opinion that we can best dispose of that in the light of what may or may not occur in respect to that investigation.

Sandeobd, C. J., and Henderson, J., and Boremak, J.r concurred.

Thereupon all the information and facts and names of witnesses were turned over to the Court, and the Court appointed Mr. John A. Marshall and Mr. E. B. Critchlow, who was objected to as interested in the receiver’s account,. to conduct the case on behalf of the Court, and the examination was resumed.

The testimony was exceedingly voluminous and showed in addition to what are stated as facts in the opinion that the compromise upon the real estate was recommended to the Court by the attorneys for the receiver, one of whom stated that the compromise was for the reasonable price of the land; that the whole of the suits was compromised for the price paid for a part of the land by the alleged purchaser; that one member of the .Court was misled as to, the compromise. As to the sheep, it appeared that they were rented to W. L. Pickard without any public advertisement, who was a surety upon the receiver’s bond. The price was 20 cents per head. The evidence varied widely as to the cash rental of sheep, and was put all the way from-20 to 50 cents. The testimony as to the compromise of personal property for the sum of $75,000, showed that it was something more than a compromise for personal property, but was in fact a final settlement” according to the receiver, and so understood by the Church attorneys; that final judgment was immediately entered, which made no-reservation and would offer an insuperable obstacle to the recovery of any other property or even to the -further prosecution of suits already begun; that it was made five months before the entry of final decree, but never reported to the Court, and since it had been made, no further attempt was made to recover property. The evidence tended to show that in every county and town there was real estate-belonging to the church," to recover which no attempt had ever been made; that the suits at Ogden could be in no sense regarded as a test case, but were peculiar as to the-facts. The evidence further showed that the personal property had been converted by the different stake corporations, which were responsible, and not by private persons at all; that the property had been delivered to them and they could have been made parties to the main action and judgment there taken against them. As to the compensation, the evidence showed that the examination was begun before Judge Sprague. The government was represented by George S. Peters, sub modo. The receiver was represented by P. L. Williams; the defendant, church corporation, by LeGrand Young and Sheets and Rawlins; that the receiver testified at length to his services, which he represented to be very great; that witnesses were introduced by the receiver who testified on the basis of the receiver’s testimony; that Mr. Peters appeared to be acting for the receiver; that the attorneys for the defendant cross-examined the witnesses the first day; that thereupon the receiver went to the church officers and obtained from them a direction to their attorneys not to contest his claim for $25,000; that on the second day the attorneys for the defendant stated this fact and demanded from Mr. Peters whether he represented the government or the receiver; this Mr. Peters refused to say, but admitted that he was acting for the receiver agd for the government, to a “ certain extent.” The examiner then stated that he recognized Mr. Peters as acting for the government; that thereupon tile attornéys for the defendant protested against the examination proceeding without the government being represented and some attempt made to resist the large claims made; that the examiner then proceeded without any opposition from any quarter to the receiver’s testimony and his witnesses’ and attorneys’.

Hon. R. N. Baskin appeared for the public before the examiner Harkness, and was permitted to cross-examine certain witnesses, but he was then objected to by the receiver’s counsel and excluded by the examiner, who stated that he did so upon the advice of members of the Court.

The referee, Judge Harkness, filed his findings of facts, finding no fraud or wilful misconduct or intentional wrongdoing on the part of the receiver or his attorneys, but he declinéd to pass upon the question whether the receiver or his attorneys had made exorbitant claims against the fund since such a question was not referred to him. The attorneys who acted for the Court, Messrs. Critchlow and Marshall, filed exceptions to the report, and the Court thereupon delivered the following opinion:

Receiver — Misconduct—COMPROMISE—Where it appeared that the receiver, acting upon the advice of competent attorneys, had compromised the claim of the receiver against certain real estate for far less than the value of the property, held that the receiver will he held blameless whether his attorneys acted rightly or not. Id. — Misconduct op Attorneys — Compromise—The receiver began suit to recover certain real estate alleged to have been conveyed' on trust for the defendant corporation. Afterwards the receiver presented a petition to the Court to be allowed to compromise the suit for all the land, for the amount claimed to have been paid for a part of the land, such amount being far less than the value of the land. His attorneys recommended the compromise to the Court, one member of which was misled by the statements made; held that the attorneys were not guilty of any misconduct. Id. — Misconduct op Receiver — Rental op Property — The receiver came into possession of 30,000 sheep, of inferior quality. He, without public advertisement, rented these sheep to a surety upon his bond, a responsible person, for the general cash rental of 20 cents per head, the lessor not being bound to return the same or an equal number of sheep of the same quality, the testimony also showing that the rate of rental was all the way from 20 to 50 cents per head, but that the sheep industry was at the time depressed and cash rentals rare; held that there was no misconduct on the receiver’s part. Id. — Compromise por Property — The receiver found that large quantities of personal property had been conveyed by the church corporation by an assignment, adjudged to be fraudulent, to the various stake corporations and much of it by them converted. The receiver made some attempt to recover it in specie, but found it impossible to identify the greater part of the property. The property was set out in an inventory in the case, and there described as being worth 8268,000. The receiver compromised all claims against this property for $75,000 in cash, which was not reported to the Court. The compromise was known to the United States attorney,who was also the attorney for the receiver. Held that his action was entirely proper. Id. — Neglect op Duty — Not Taking Property — The receiver cannot be charged with having neglected to take possession of property alleged to belong to the defendant corporation, when it appears that he has brought three suits that were pending to test the question of his right to recover some of the property from third persons, holding the legal title, and he was waiting the issue of these suits as test questions, although it appears that by the agreement of the receiver and his attorneys, one of whom represents the government, the plaintiff, that a final decree had been entered adjudging certain property theretofore taken to be the property of the church and making no reservation as to "any other property. Id. — Misconduct—Excessive Compensation — An excessive claim made by a receiver for compensation, is not a fraudulent claim; quaere, is it “ unconscionable?” Id.— Misconduct — U. S. District Attorney — Although the law makes it the duty of the U. 8. district attorney to appear for the United States, there is no -incompatibility between such officer appearing and acting in the litigation for the plaintiff, the government, and at the same time for the receiver, nor between the U. S. attorney appearing for the government “ to a certain extent ” and at the same time appearing and acting for the receiver at an examination, to take testimony as to the compensation for the receiver and himself as attorney for the receiver, when his employment by' the receiver is authorized by the general law officers of the government. HENDERSON, J.:

On the 27th day of November last, certain school trustees filed a petition in this Court, containing charges of misconduct on the part of the receiver and his attorneys, and praying that they might be made parties to the proceedings then pending in this Court to fix the compensation of said receiver and his attorneys, and that they might “be allowed to produce evidence to prove and substantiate the facts stated in said petition.” Upon a hearing had upon said petition, this Court determined that the interests of said trustees were too remote to allow them to intervene as parties, but that the said petition should stand as charges against the said receiver and his attorneys of official misconduct, and ordered that the same be referred to Robert Harkness as special examiner, to take the proofs offered in support of said charges. It is unnecessary to recount at this time the various proceedings had in this Court, and the efforts from time to time made to have said charges investigated, which finally resulted in the withdrawal of said trustees, and the ordering by this Court that said charges be’ investigated. The final order of reference was made January 21st last, and provided that said examiner should “ proceed to take testimony respecting any and all allegations of fraud, misconduct, fraudulent and unconscionable claims and charges for compensation, and unprofessional conduct on the part of Frank H. Dyer, as receiver in this case, and of George S. Peters and Parley L. Williams as bis attorneys, contained in said petition; that said Robert Harkness be clothed with all the powers and authority as examiner of this Court for such examination; that he be authorized to pass upon and determine all questions of the admissability of testimony, the same as if it were being tried before him, subject, however, to the right of either party to appeal to this Court by way of exceptions to his rulings thereon.” The order further provided that said examiner should make report to this Court with all convenient speed of all testimony taken before him, together with his opinion and conclusions thereon. The said petitioners having withdrawn from such investigation and tendered to this Court the testimony upon which such charges were made, attorneys were appointed by this Court to prosecute the said inquiry for and in behalf of the Court, and the receiver was directed to put in the possession of said examiner sufficient means to procure the attendance of all necessary witnesses. The examination upon this order.of reference has been had, and the examiner has filed his report, together with his findings and conclusions thereon. Certain exceptions having been taken by the attorneys appointed by this Court to the said report, and the conclusions of the examiner thereon, and the said exceptions, and the _ motion made by the attorneys for the said respondents, the receiver and his attorneys, to confirm the said report, have been heard and submitted to us for our determination. The report is accompanied by the testimony at length taken by the examiner, consisting- of 1,151 pages, accompanied by various documentary evidence.

The examiner in his report says: “ Undef these orders there has been a very full hearing, and I return herewith and as part of this report all the testimony and proceedings.” He has classified and given the substance of' the testimony upon each particular branch of the case according to his subdivisions, stating his conclusions upon eaeh} and at the end, as a general conclusion, he finds as follows: “I find that there was no fraud, corruption, misconduct or fraudulent and unconscionable claims or charges for compensation or unprofessional conduct on the part of the receiver or his attorneys in respect to any of the transactions set forth or contained in the said petition.” It will be seen that this order of reference settled no specific issues, but submitted the whole matter to the examiner, to investigate any and all charges of fraud, corruption, misconduct and fraudulent aDd unconscionable claims or professional misconduct on the part of the receiver and his attorneys.”

The examiner has treated this petition as making five distinct and specific charges against the respondent, viz.: First, that the said receiver and his attorneys had deceived and misled this Court, and thereby obtained an order authorizing them to compromise certain suits and claims of the receiver to certain pieces of real estate in Salt Lake City for the sum of $84,666.15, by representing to this Court that said sum was the full value of such real estate, when in truth and in fact it was of the value of $225,000; second, fraud and misconduct or gross negligence on the part of the receiver in renting to one "William L. Pickard 30,000 sheep at a grossly inadequate price; third, fraud and misconduct on the part of the receiver in making a compromise in which he received $75,000 from the defendant for personal property which he was entitled to take into his possession as receiver, and releasing all claim thereto, the said property being of the value of $250,000; fourth, fraud and misconduct on the part of the receiver in not taking into his possession large anjounts of property in the hands of the defendant corporation or its agents, which it was his duty to do; fifth, fraud and misconduct on the part of the receiver and his said attorneys in trying to obtain from said fund in the hands of the receiver exorbitant charges for their services as such.

The petition further states that the receiver has presented a claim for allowance to himself for his individual services as receiver of $25,000, and in addition each of his solicitors presented a claim for $10,000, said claims aggregating $52,865.23; that said claims for allowances were referred to the examiner in this case to take testimony- as to the amount to be allowed; that the United States Üttorney for Utah and the territorial commissioner of schools both appeared for the receiver in the taking of such testimony, and no one appeared for the United States, or for the said common schools; that on such examination the defendant corporation at first appeared by its solicitors, Messrs. Sheeks and Rawlins, and by them the first witnesses produced by the receiver were cross-examined; but afterwards, as petitioners are informed and believe, they were instructed by the - defendants not to cross-examine and not to contest .the claims of the receiver or of his solicitors, and thereupon they ceased to make any further contest, and the examination became and was wholly an ex parte examination by the receiver and his solicitors before the referee.

The petition then proceeds to allege that under the law George S. Peters, as United States district attorney, was bound to appear, by virtue of his office, for the United States in all suits to which the United States was a party; and that he was not entitled to have or receive any sum for any services he may have performed as solicitor for the receiver in this case, and that the claim of the said Williams, as solicitor for said receiver, for $10,000, was much too large.

The petition then proceeds, in so many words, to charge as follows: “Your petitioners further represent that the amount, $25,000, claimed by the said receiver for his individual services, is grossly exorbitant, excessive, and unconscionable; that the allowances to the receiver for his services must be only for those rendered by himself, and he cannot be allowed for services for which his agents and employes may be allowed and paid.”

The petition further states that the difference between the amount for which the 30,000 sheep, above mentioned, could have been rented and the amount for which they were rented is about $5,000, and that this amount should be deducted from said receiver’s compensation, if, in view of his breach of duty, he is entitled to any compensation; and if it be that he so rented said sheep in return for any benefit to himself, or the' hope thereof, then he ought not to receive any compensation, and said contract of renting • should be disapproved, and the receiver held for all loss to the fund in consequence of such wrongful renting.

The petition further states that “petitioners are informed and believe that the sum of $75,000, above mentioned, received from the said defendant in compromise for certain property above mentioned, was a grossly inadequate consideration, and the receiver should be held to account to the fund for.the difference between $75,000 and a fair consideration for said property; and such difference, your petitioners believe, is not less than $175,000; or that said transaction should be disapproved by the-Court, and the receiver held to a strict accountability for all loss in consequence of his wrongful action; and, further, that the receiver should be held accountable for the loss to the fund, and to the common schools, caused by the compromise upon the real estate above mentioned; and this loss, your petitioners charge, on information and belief, is not less than $135,000; and that, further, if said receiver be allowed any compensation at this time, it should not in any view exceed $5,000.”

The petition then proceeds to charge that, inasmuch as no one has appeared on behalf of the common schools, the fuud is likely to be greatly diminished by said claims made against it, and that the appearance of some one for the common schools is rendered absolutely necessary to the ends of justice; and the facts that the commissioner of common schools of this Territory is employed by said receiver against the interests of said schools, and that the United States' attorney for this Territory is also employed against the common schools, and that the receiver himself is an officer of the United States, and that they are claiming that by a compromise the said schools have already been deprived of a large portion of the proceeds of said lands, and that these proceeds have become the property of the United States — furnish additional reasons for permitting the trustees of district schools, to appear in this proceeding. Wherefore the petitioners pray as follows: “That they may be made parties to such proceedings, or tbat they may be allowed by tbeir solicitor or otherwise, in order to defend and protect the interests of the common schools they represent, and preserve só much of the funds as may belong to said schools, and that such other trustees of district schools as may wish to come in may also be made parties, or allowed to appear, and that your petitioners may be allowed to produce evidence to prove and substantiate the facts stated in this petition, and that petitioners may have such other and further relief as to equity belongs, and as to this Court may appear to be equitable. Signed and sworn to by T. C. Bailey, Chairman Board of Trustees, 7th School district. Rudolph Alff, Chairman Board of Trustees, 8th School district. J. E. Millspaugh, Secretary Board of Trustees, 12th School district.”

Upon the application of the solicitors of said petitioners to be allowed to file said petition in said above entitled cause, to become parties thereto, this Court filed an opinion, written by Henderson, J., in substance as follows: “This is an application of certain school trustees to be allowed to intervene as parties to the case. "We are of opinion that petitioners do not show by their petition any right to intervene as parties. There is nothing to show that the Government is not disposed to look after the interests of the fund, and the interests of petitioners as school trustees are too remote to be recognized by an order allowing them to intervene. But the petition which has been read contains charges of a grave and serious nature against the receiver and his attorneys, Messrs. George S. Peters and Parley L. WTilliams. The charge has been directly made that the receiver has acted corruptly, and in criminal collusion with the defendants, and that this Court has been imposed upon by the representations of the receiver and his said attorneys, and a fraud thereby accomplished. If this be true, a crime has been committed, and this Court cannot and will not pass it by without attention, as the action of these officers, charged with a delicate and difficult duty, should be met by responsible accusers, and have the opportunity to confront them. Either the receiver and his attorneys have been guilty of a crime, or some person or persons are interested in falsely accusing them. Tbis petition, upon being verified and indorsed by some person responsible for the 'costs wbicb may be incurred, should be received and filed as charges against the receiver and said attorneys, and they should each be required to file their respective answers thereto, so far as the charges of corruption, fraud, and unprofessional conduct are charged against them, respectively, and upon the filing of their answers it should stand referred to an examiner, to take such testimony as is offered, both to sustain and disprove the charges contained in the petition and report the same to this Court on or before the next regular term of this Court. If the charges of corruption and improper conduct are sustained, and the fund in controversy in this case thereby preserved and protected, provisions can hereafter be made for the payment of the expenses incurred; but in the meantime we shall postpone the-question of compensation to the receiver and attorneys until the bringing in of the report.

We shall consider the matter in the same order in which the examiner has treated it. And the first in order is the one relating to the charge of misleading the court upon the matter of the compromise of the claim of the receiver to the real estate. The charge in the petition relating to this matter is as follows: ‘Your petitioners represent further unto your honors that the late corporation, the Church of Jesus Christ of Latter-Day Saints, after the 1st day of July, 1862,. obtained and held in violation of said section 8, and not for purposes of worship of God, or for parsonages or burial grounds, other real estate, to-wit: parts of lots 2 and 7, block 88, plat A, Salt Lake City survey; also all of lot 8, block 76, plat A, Salt Lake City survey; also that portion of lot 5, in block 75, plat A, Salt Lake City survey, commencing at the northwest corner of said lot 5, and running thence south 105 feet one and one-half inches; thence east 324 feet; thence north 105 feet one and one-half inches; thence west 324 feet, to the place of beginning — all of said lands being situated in Salt Lake County, Utah Territory. That on March 23, 1888, April 4, 1888, and May 14, 1888, the said receiver instituted actions in this Third Judicial District Court of Utah Territory against various defendants, and in the complaints in said suits, among other things, alleged that said last above-described tracts of land were obtained and held by said late 'corporation in violation of said section 3 of the act of July 1, 1862, and not for the purpose of the worship of ■God, or of parsonages or burial grounds; and that the •claims of the various defendants in said suits were invalid; ■and prayed that the deeds of said various defendants be held to be colorable, and the cloud upon the title created by said deeds be removed, and that the possession of said lands be adjudged to the said receiver for the uses and purposes mentioned in the said section 13 of the act of March. 3,1887. That afterwards, on or about the 9th day of July.. 1888, the said receiver and the said defendants to the suits; above named compromised said suits, and in lieu of said: tracts of land described in said complaints, except a portion of lot 8, in block 76, the said receiver took the sum of 884,666.15, ox a note therefor, to stand in the place thereof, and to be treated and applied as the land should have been treated and applied. That the said solicitors of the said corporation were ‘the attorneys of said defendants, except one, in said compromises, and thereby admitted that the land had been obtained by the late corporation, and was then held by the defendants for the late corporation, in violation of said acts of Congress, and that the plaintiff was entitled to recover if said acts were valid, and in effect admitted that the. money received should be substituted for said lands, and should be applied for the benefit of said common schools. That the order of the court authorizing the said receiver to compromise said suits was made by the court, as your petitioners are informed and believe, solely upon the recommendations of the receiver and his solicitors, who stated to the court that the estimates in the petition for authority to compromise were the actual and reasonable values of said tracts under the circumstances, and that said compromises were fair and reasonable. Your petitioners aver, however, that said tracts of land were worth 8225,000, and that $84,666.15 was a grossly inadequate valuation of said property; that no evidence was heard by the court in regard to said compromises, and your petitioners believe that the court was misled by the said representations and recommendations of the receiver and bis solicitors, and that said receiver should be held accountable for the loss to the fund and to the common schools caused by the compromise upon the real estate above mentioned, and this loss your petitioners charge on information and belief to be not less than $135,000.’

After reviewing the testimony upon this subject, the examiner reports as follows: ‘In making the compromise and presenting it to the court, and in the proceedings in court, the receiver and his attorneys acted in entire good faith, and without any intent to mislead the court, or to conceal or misrepresent any of the facts. The receiver acted mainly upon the advice of his counsel, and they believed and still believe, the compromise was fair and advantageous to the receiver, and the means and methods of carrying it out by proceedings in court were devised and conducted solely by the counsel of the parties. The compromise was ratified by the court. The government was notified, through its law officers, of the compromise, and has made no objection, but through its said officers has expressed approval of it.’

The testimony shows that some time after the appointment of the receiver, and while some proceedings were pending before an examiner, in the testimony there given, the attorneys for the receiver learned facts from which they had a suspicion that the real estimate mentioned was held by the apparent owners thereof' in trust for the church. Acting upon this suspicion, they at once instituted suits for its recovery, alleging that the property was held in secret trust for and belonged to the church. This was done at that time to prevent by notice Us pendens the further complication of the title to said lands. They there.after instituted an investigation of the title, and it was found that some of the property had been held by the trustees of the church by deeds which expressly recognized the trust to a certain date, which was long prior to the passage of the act of 1887, and before the appointment of the receiver. The records then showed that it had been conveyed away to individuals. Other portions of the land had been held by conveyances from the time of its location and patent by the government by deeds expressing no trust whatever. The examiner has returned in detail a statement of the record title to each and every piece of this real estate. After these suits were instituted it was claimed by the defendants that, as to some of the pieces of real estate, they had never belonged to the church at all; as to others, it was claimed that at some time in the past they had been the property of the church, but that before the passage of the act of 1887 they had been sold, and that the present owners were purchasers and holders thereof in good faith. It further appears that, upon investigation, the attorneys for the receiver had become satisfied that, as to some of this property, the claims set up by the defendant were true; as to others, they had a-suspicion yet that possibly the property was held in secret trust. Other attorneys were employed at this time by the receiver, upon the recommendation of Peters and Williams, who were regularly retained as his attorneys, and Messrs. Marshall & Hoyle were retained to assist in the prosecution of these two cases. While these cases were pending, and in this condition, the attorneys for the church claimed that so far as it was claimed in said suits by the defendants therein that the church had held the property, and that it had been conveyed and sold and was then held in good faith by honest and bona fide purchasers, that this claim was true and admitted, and claimed that the church 'had received this compensation at the time of those several sales, which was just prior to the passage of the act of 1887; that the purchase price which it was claimed the church had received was a reasonably fair valuation at that time; and thereupon the attorneys for the church offered, in case said suits were dismissed, that they would turn over to the receiver the full amount of what they had received; that, after considerable consultation among the attorneys for the receiver and a full investigation, it was thought that it was reasonable and right that they should receive that amount and dismiss said causes; that it was for the interest of the Government and the fund in hands of the receiver to make such compromises. Thereupon a petition was prepared for the purpose of coming to this court, and asking for its advice and direction. This petition recites the commencement of all the cases for the recovery of the real estate. It sets forth in detail the subject of each suit; for what property it was brought; what claim the defendants therein made to it; the particular consideration which it was claimed by the defendants in those cases that they had paid the church for it; and the petition further alleged: ‘Your petitioners further represent that, in consideration, of the said litigation and of the claims of the said parties, respectively, with reference to the said transfers and ownership of all of said property, and for the purpose of adjusting and settling the said suits involving the said property which the said defendants in said original suit of the United States of America against the said late corporation of the Church of Jesus Christ of Latter-Day Saints and others have proposed and offered your petitioners by way of compromise and settlement of said suits, and securing the dismissal of the same, to pay your petitioner the following- sums of money: First, Five thousand five hundred dollars, the alleged consideration received by the said church from the said Angus M. Cannon for the land and premises involved in said suit against him; second, The sum of $36,241.15, the amount received by the said church from the sales of those portions of the said lot 8, in block 76, sold and transferred on or about the 2d day of March, 1887; it ’being agreed, however, by the said defendants that this settlement, if approved by the court, shall not include the claim of the petitioner to the northeast corner of said lot 8; third, The sum of $42, 925, so received by said late church corporation for the portion of said lot 5, block 75, in plat A, and hereinbefore described. And your petitioner further represents that in his opinion, and as he is advised by his counsel herein, it would be for the best interests of all of the said parties to said original action of the United States against the said late corporation and others to make the said adjustment in said litigation.’ Nothing was said in the petition whatever, as to the value of this real estate, but the petition on the other hand, plainly shows on its face that it was the intention of the receiver and his attorneys to .ask the authority of the court to settle those cases upon the basis of what it was claimed the church had received upon a sale thereof.

Upon the presentation of the petition, it being signed by the receiver as petitioner, and indorsed by P. L. Williams, George S. Peters, and Marshall & Hoyle as his attorneys, and on the oral statement being made in court that it was thought by the attorneys that it was best to make this compromise, the Court at once entered an order authorizing it to be made. So far as this charge is concerned against the receiver, it is only necessary to say that the testimony clearly shows that the suits were commenced upon facts that were unascertained by the attorneys themselves, and of which the receiver had but little personal knowledge; that he acted wholly under their advice, and followed implicitly their directions, and this is the only charge that can be made against him. The character of the attorneys employed by the receiver was such that, when this petition was presented to the Court, this Court readily, and without the slightest hesitation, acted upon their advice. It is shown that the receiver did no more than that himself, and it would be useless to think of charging the receiver with wrong-doing in so acting upon the advice and direction of counsel which this Court as readily accepted. The charge could as well be made against the Court.

It remains to be considered, however, as to whether the charge has any merits as against tie attorneys. The testimony clearly shows that as for that portion of the. real estate which it was th® expectation or hope of the attorneys for the receiver that they might recover, it was a fair and proximate valuation of that real estate on the second day of March, 1887. The examiner in his report has summed up in a very exhaustive and thorough manner the testimony relating to each particular tract of this land, and has divided it into classes, according to the expectation and chances of recovery; and, in concluding, he says: ‘ The amount accepted was the sum that was represented to have been paid for the lands on the last conveyance, and approximated tbe full value of all tbe pieces expected to be recovered March 2, 1887.’ All of tbe attorneys wbo acted for tbe receiver in tbis matter gave testimony upon tbe stand, and now say tbat tbe compromise was fair, and tbat tbey now advise tbat it was tbe best tbat could be done. Tbe only circumstance wbicb tends to throw any suspicion upon tbe transaction upon its face is tbe fact tbat suits were commenced for an amount of real estate largely in excess of wbat was received, but, when it is shown tbat much of tbis property was so situated tbat in all probability it could not be recovered (some of it, as tbe examiner finds, tbe attorneys for tbe receiver before tbe compromise bad determined to dismiss from tbe suits), tbis circumstance is explained. It must be remembered that tbe lands wbicb were being recovered were in the bands of people wbo, to say tbe least, were unfriendly to these proceedings. Tbe counsel for tbe receiver bad got to find the testimony upon wbicb tbe conveyances would be set aside from these people. The facts were known to them, and only to them; and, if it be true tbat tbe church bad conveyed tbis property away before tbe passage of tbe act of 1887, and tbe receiver obtained from them all tbat tbey received for it, and tbe' church was actually divested of it, it was all tbat could be required. We think tbat tbe testimony abundantly sustained the examiner in bis conclusion upon tbis subject. We believe tbat tbe counsel for tbe receiver acted in the interest of the fund in making tbe compromise.

But it is insisted by counsel tbat tbe court was actually misled,‘and tbat, whether the compromise was fair or not, tbe attorneys are still guilty of misconduct. Tbe compromise was made and was authorized by tbe Court upon tbe allegations in the petition asking for authority to make it. It is said tbat there were some statements made to tbe Court at tbe time the order was entered relative to the value of tbe property, but tbe petition on its face fairly shows tbat wbat tbe receiver was asking was wbat it was claimed the church bad received upon a sale prior to March, 1887, and tbat it was only claimed tbat tbey bad' received compensation for a part of tbe land, while tbe petition asks for authority to release the claim of the-receiver to all the land involved in the suits, and the basis of the compromise was not the value of the land at the time the compromise was entered into. The petition shows upon its face that the receiver was asking for authority to discontinue all the cases, and relinquish all claim to the whole of it, but that he was receiving money on account of only part of it; and it showed just what property the money was to be received upon, and just what the basis of the payments were to be, viz., the amount the church had received upon a sale of that property.

The second charge is that of misconduct of the receiver in renting the sheep to W. L. Pickard at a grossly inadequate price. The allegation in the petition respecting this matter is as follows: ‘That since the appointment of said receiver he has obtained possession of 30,000 sheep, the property of the defendant corporation, and after receiving the same he rented them without any authority from this Court, and without public notice, to one W. L. Pickard, a surety upon said receiver’s bond, at the rate of 20 cents per head per annum, when the customary price was from 40 to 50 cents per head, and that in said renting of said sheep the fund sustained a loss of about 85,000; that, furthermore, the difference between the amount for which 30,000 sheep above mentioned could have been rented and the amount for which they were rented is about $5,000, as your petitioners are informed and believe, and that this amount should be deducted from said receiver’s compensation if, in view of his breaches of duty, he is deemed entitled to any compensation; and if it be that he so rented said sheep in return for any benefit to himself, or in the hope thereof, then he ought not to receive any compensation, and said contract of renting should be disapproved, and the receiver held for losses to the fund in consequence of such wrongful renting.’

The examiner upon this subject finds: ‘The proof shows the letter to Pickard was in entire good faith, and in the belief that he was doing the best he could do, and he understood Pickard to be amply responsible financially. Considering the rule that a receiver is to provide for absolute safety, so far as he can, rather than to make profits; that he is debarred from ordinary business risks not forced upon him; and the circumstances that surrounded him at the time — the transaction does not afford any evidence of bad faith or dishonest intent.’

The testimony upon this subject is very voluminous, and is quite conflicting, but it fairly tends to show that the sheep that were received by the receiver were much below the average of sheep in this Territory. They were culled from many flocks. They were the result of the tithings collected by the church, and, as many witnesses testified, it was not customary for persons paying tithing to pick out and pay the best of their flocks, but, on the other hand, rather the poorer. These sheep were in the hands of many persons, scattered all over the Territory, and the receiver in getting them received an order from the church upon the various persons who held them; and when he presented himself for the purpose of receiving the sheep, and sheep were pointed out as being the church sheep, and turned •over to him, he had no way of disputing the claims made by the persons having them in charge. It is not to be supposed that under such circumstances persons who were turning out sheep to the receiver would be careful to turn ■out the best of their flocks. After gathering these sheep, the question of their renting had to be considered by him. The ordinary custom in the country was to rent the sheep for a longer period than one year. This the receiver did not feel authorized to do. The custom also was to rent the • ■sheep, the rent to be paid in kind — that is, a percentage of increase — and so many pounds of wool per head, and the rental which the owner would realize always depended upon the value of sheep and wool in the future. The testimony tended to show that in years past, at the rate that sheep could thus be rented, owners would get all the way from 25 to 50 cents per head, but it was plainly shown by the evidence that the industry was depressed in the sum- ■ mer and fall of 1888. Rentals for cash were rare. Some few small flocks were rented by the receiver after the old •custom of so many pounds of wool and a certain number ■of lambs for increase, but, after making these contracts, 'tbe receiver sought to dispose of tbe entire flock for a cask • rental, and to some responsible party. It must be remembered, as stated by tbe examiner, tbat a receiver is but a stakeholder; that it is not his duty to assume ordinary business risks. Absolute safety is to be aimed at, and not ■only that, but the property should be sought to be put in •such a shape as to lessen the expense of care and oversight. If the receiver could make a rental of these sheep to one individual, with whom he was well acquainted, and whom he knew to be prompt, honest and responsible, and that there would be no doubt about realizing upon his contract, and that it would nob require looking after, it would be much better than to undertake to rent these sheep in small flocks and herds all over the Territory, where it would require constant care and watching to look after the, responsibility of those to whose custody they were committed, and at the end of the lease to be present by himself or his agents to receive the property back again. With this view it is shown that he made application to Mr. Pickard, who was known to be in the business, and responsible. Mr. Pickard made the offer of 18 cents per head, the receiver •offering to rent them at 25. The entire flock contained no bucks. As before stated, they were of an inferior quality. They were to be rented but for a single year. They were to be rented upon terms that would require the person renting them to return in kind as good sheep at the expiration of the lease, and that he sko-uld pay a cash rental per head. The lease was finally made out at 20 cents. A great number of practical sheep men testify before the examiner that this was a fair rental, considering all the circumstances, many witnesses placing it from 20 to 30 cents per head; and many witnesses testify that, if the rent had been made to be' received in wool and increase, it would have amounted to much more. But in view of all the circumstances, and of the duties of a receiver who is merely holding the property to await the final result of the litigation, we think that the contract made with Pickard , was a fair one, and there is no testimony whatever in the record which even tends to show that there was any fraud, or that tbe receiver was to receive any consideration other than what is expressed in his contract, and that no-favor was extended to Pickard on account of friendship, or his relation to the receiver in any manner. It is claimed that the receiver has been guilty of gross negligence in the matter, because, it is said, by the strict terms of the contract, it does not require Mr. Pickard to return absolutely the full number of sheep received by him. It is unnecessary to consider this, because, in view of this criticism, an affidavit' has been filed in the case made by Mr. Pickard in which he states that those were the terms of the contract as it was entered into, and, if there was any error in reducing it to writing, it is a mere error, and nothing else; and,, if necessary, upon the admissions made by Mr. Pickard in the affidavit above referred to, a court of equity would be fully authorized to make the correction. The examiner finds, and the testimony supports the finding, that these sheep were worth not to exceed $1.50 a head. The rate at which they were rented by the receiver yields between IS and 14 per cent, per annum upon this valuation.

The third charge is that the receiver was guilty of fraud and misconduct - in compromising for $75,000, $250,000 worth of property. The charge, as' contained in the petition, is as follows: 'Tour petitioner further represent that the said receiver now has in his possession the sum of $75,000, received in compromise for cattle and other property; that said property, as your petitioners are informed and believe, was worth at the time $250,000; that it was estimated by the,parties to this suit in a stipulation of facts made October 19, 1887, to be worth the sum of $268,982.15; and that this transaction between the receiver and the defendant corporation was made without authority from this Court; and your petitioners are further informed and believe that the sum of $75,000, above mentioned, and received from the said defendant in compromise for certain property above mentioned, was a grossly inadequate consideration, and the receiver should be held to account to the fund for the difference between $75,000 and a fair consideration for said property, and such difference your petitioners believe is not less than $175,000; or that such transaction should be disapproved by the Court, and tbe receiver beld to a strict accountability for all loss in consequence of bis wrongful action.’ We have examined the testimony upon this subject, and the statement contained in the examiner’s report as to what it establishes. We fully concur with him in his determination upon this point. We can do no better in stating the substance of the testimony upon this point than to adopt what he has said, which is as follows: ‘ On the motion for the appointment of a receiver it appeared that seventeen or more stake incorporations had been organized in Utah prior to March 3, 1887, and that on February 28, 1887, the church had assigned to these local corporations personal property to the amount of about $269,000, and the gross value of the' property assigned to each stake was set forth, but there was no inventory or disclosures to show of what the property consisted. In April, 1888, in proceedings in the main cause, these inventories were disclosed, and it appeared that they were taken shortly before February 28, 1887, for the purpose of the transfers. The property consisted of hay, grain, merchandise, tithing-house supplies, office furniture and fixtures, and a great variety of property in the various stakes; including $65,736 in cattle, $19,869 in horses, and $14,514 in sheep. In some stakes the property was in more than one place, and in as many places as there was tithing-houses. At these places fithing was continually received and dealt out, and the kind and amounts received, and the proportion between receipts and disposals varied with the season of the year and the nature of the property; but receipts were larger in the fall and winter, and the stock on hand increased during the summer. In places where temple building was in progress, these supplies were used as far as available for such purposes, and when the property received was in excess of local demand it was sent to market. After March 3, 1887, the tithing system was continued in the usual way, and every town had its local corporation. Tithing was received, intermingled with old stock, and sales were made from the stores. Perishable property was speedily disposed of; and snob products as were usually sold or consumed annually were disposed of during tbe year. Considerable of tbis property was disposed of before tbe appointment of a receiver, but even its approximate proportion and value cannot be stated. In a general way, it appears that not over a quarter in value was on band in May, 1888, and it is stated tbe value of property on band would not, on July 9, 1888, exceed $50,000. Tbe general course of tbe business would require tbe disposition of tbe personal property mentioned — supplies and property of annual products. Tbe only inference that appears from tbe whole testimony is that mucb, if not all tbe cattle, sbeep, and borses in these inventories were on hand for supplies, or working at tbe various places, and not as herds, though tbis is not shown by any direct evidence. After tbe receiver got tbe inventories, be, with one of bis attorneys and an assistant, went to two or three of the places, and demanded property. Except some office furniture, not valued, be could not identify any of the property. An agent was sent to two or three other stakes, with like results. Tbe evidence satisfies me that efforts to reclaim tbe property in specie at any time after tbe appointment of tbe receiver would have been attended with mucb cost and doubtful results. Tbe receiver’s attorneys examined tbe stake incorporations’ papers, and concluded tbe incorporations were illegal, and would not be recognized as capable of bolding property by tbe courts, and they also considered that there was a cause of action against any party who converted tbe property after March 3, 1887, but in most instances they failed to find parties liable and financially responsible. In Salt Lake county, after some doubts as to tbe methods of procedure, tbe government obtained a writ of assistance in tbe main action, and recovered some property, and tbis method of procedure was sustained by tbe Supreme Court by a majority opinion. Tbe difficulty of finding property in other stakes prevented tbe further use of tbis ‘remedy. Tbe receiver, by tbe advice of bis counsel, compromised tbe claims to tbis property for tbe sum of $75,000, payable in cattle at tbe inventoried price in tbe transfer to tbe stakes, and, in case the church did not turn out sufficient cattle, the deficiency was to be paid in cash. The church collected about 2,000 head, of which 1,000 or 1,100 were collected near the Pipe Spring ranch, in northern Arizona, and the remainder near Oxford, Idaho, from the Star Yalley ranch. The receiver ascertained the herd in Arizona had been culled, and that the cattle offered were worth only about 813 per head, and he refused to receive them, and the 875,000 was paid in cash. His agent did not, so far as the testimony shows, see the cattle in Idaho. The receiver in his report shows that he had the 875,000 on hand as cash, but no special report was made showing the compromise, or the sources from which the money was received. It was, however, a matter of. general knowledge, and there was no effort or intent to conceal the facts. The law officers of the United States were informed of the facts, made no objection, and- approved the compromise. The receiver in this case acted with the advice of his counsel, and they believed and now believe, it was an advantageous compromise. It was made in good faith by all the parties. It may be further said that the testimony shows that the attorneys for the government in the main case were fully aware of this compromise before it was made. The stipulation referred to in the petition, in which it is claimed that it was stipulated that the property in the hands of the church was worth 8268,000, was one that was used upon motion for the appointment of a receiver. Upon that hearing it'was sought by the government to show that there WRS some property in existence which it was claimed that a receiver would have the right to take into his possession. As a basis for argument that a receiver should be appointed, it was thenr stipulated that, for the purpose of the motion, but for no other purpose in the case, it should be stipulated and agreed that this property, which was transferred by the church to the various stake incorporations at the time of such transfer, was of the value stated. The various schedules of the property finally came into the hands of the receiver as stated by the examiner in April, 1888, and from these schedules, which are before me, it would be impossible for any person to identify the property. It was scattered all over the Territory. It consisted of all kinds of property, from household furniture to stock. It is ■ apparent that if the receiver had tried to recover this property it would have resulted in vast expense, and that if he had succeeded, which, it must be admitted was, in a great proportion, at least, impossible, it would have been in his hands but of little value as compared to the inventoried price.

As to the charge that the receiver has failed to take possession of the property which belonged to the late corporation, the petition contains the following: ‘Your petitioners further represent that they are informed and believe that there is property to a large amount, of which said receiver has not taken possession, that was owned by said defendant corporation and was in possession of its agents or of others for said corporation after said receiver •qualified; and that he could have taken or obtained possession of said property by the use of reasonable diligence as receiver, and that his failure to do so was from want of attention to his duties as receiver or from willful negligence, or through combination with the agents of the late corporation.’' At the close of a review of the testimony bearing upon this subject, the examiner concludes as follows: ‘It is impossible to summarize all the details, but, taking all the testimony and circumstances, the extent of territory, the variety and magnitude of church affairs, the devices to conceal its effects, the length of time it had to prepare for the law and suits under it, the testimony shows no intentional omission of the receiver to take possession of the property, or that he acted otherwise than in good faith.’ The testimony upon this subject shows that there is considerable real estate — some at Logan, some at Ogden, and some in other portions of the Territory — which belonged to the church previous to March 3, 1887, and was conveyed by the church, just prior to that time to the local stake organizations, and that these organizations now hold the s.ame, using it for church purposes, and claiming to own it. This was known to the ■receiver and his attorneys, and they claimed that it should pass to the receiver, and demand was made accordingly for it; but no other steps were taken to reduce it to possession than to commence three actions in the First District Court at Ogden for the recovery of a portion thereof. These suits are still pending, and were brought, as the attorneys for the receiver testify, for the purpose of testing the question as to whether they could recover for such property, and that they delayed bringing suit for the other property to await the determination of these cases, and that it is their intention to press these cases to judgment as test cases; that the reason they had not commenced other suits is that the real estate could not be disposed of so but that it could be reached by such suits. As to personal property, the only testimony tending to show that the receiver has failed to take possession of personal property is that cattle and horses were known to be running at large on the range in the vicinity of what had been church ranches, with the church brand upon them, and reputed to be church property; but this fact is explained when it is remembered that a large amount of horses and cattle was gathered together for the purpose of delivery to the receiver under the conditions of his compromise, and that he refused to receive it, receiving its equivalent in money. There is no testimony to show that the property is other than such as was thus compromised. Some of the exceptions taken to this part of the report are based upon the idea that the receiver is concluded by the final decree in the case from further pursuing any property that was not in his hands at the time the decree was entered. The testimony shows conclusively that this was not the understanding of the receiver or his attorneys, but it is unnecessary for us to determine what the effect of' the final decree in this respect is, because the receiver had nothing to do with that part of the case. If it should be admitted that such a decree has been entered in this case, .it cannot be charged to the receiver. We think the testimony fully warranted the finding upon this subject.

As to the charge that the receiver was seeking to obtain' a fraudulent or unconscionable compensation out of the-fund in his hands, tlie petition, in effect, charges that a. reference bad been made by tbis court to an examiner to take testimony, and report it to tbis court, as to tbe amount of compensation to be paid to tbe receiver and bis attorneys for tb'eir services; that upon tbe bearing before tbis examiner tbe receiver bad made claim for $25,000; that P. li. Williams, one of tbe attorneys, was tbe commissioner of schools for tbis territory, and-was acting as attorney for tbe receiver, and against tbe interest of tbe school fund; that Mr. Peters was the United States district attorney for tbis territory, and that be was acting in bis own interest and in tbe interest of tbe receiver upon such examination, and against tbe interest of tbe school fund; that tbe defendants in tbe main suit bad been induced to withdraw all objection to tbe allowance of tbe claim of tbe receiver; that tbe examination, therefore, became ex parte; and, further, that tbe amount of tbe compensation “claimed by tbe receiver is grossly exorbitant, excessive, and unconscionable.” Tbe report of tbe proceedings and testimony-before tbe examiner, which is before us, shows that there was much contention between tbe parties as to tbe scope and meaning of tbe order of reference upon tbe matter, and of the charge in tbe petition. Tbe examiner was right in holding and construing our reference to him upon tbis subject to be an examination into the action of tbe receiver in tbe sense of wrong-doing.

It is claimed by the attorneys prosecuting tbe examination, first, that tbe testimony shows that tbe receiver, in bis testimony before Examiner Sprague, in many cases magnified bis services as receiver, and stated them unfairly, intending to deceive and mislead tbe examiner and tbe court, and that other witnesses called for tbe receiver were asked to estimate, and did estimate, tbe value of bis services upon tbe theory that bis testimony was true, and that by that means tbe examiner was influenced and induced to report bis findings that from tbe evidence tbe receiver should be paid $25,000 for bis services. If tbis were true, it would amount to a fraudulent and unconscionable claim for compensation. It would be seeking to defraud tbe fund, and using bis office for tbe purpose of .accomplishing it. It was claimed, further, that, upon tbis ■examination, it was proper for tbe examiner to consider wbat would be a reasonable compensation; and that, if tbe receiver had made a claim or stated before tbe commissioner that be believed bis services were worth a certain amount, and that proved to be 'largely in excess of wbat tbe commissioner thought be should have, that would amount to a fraudulent and unconscionable claim for compensation. It was not tbe intention by this reference to submit any such question to tbe examiner, and, as stated by him, in reply to this claim, tbe question bad been expressly referred to an examiner before that time. His report was then on file, and it bad- not been beard by tbe court, and it was not intended to re-refer the subject to amother examiner. An excessive charge is not necessarily a fraudulent charge. Tbe amount which should be paid for services depends upon tbe view tbe person estimating-takes of tbe basis upon which it should be assessed. If, in this case, tbe compensation of tbe receiver and bis attorneys was to be assessed wholly and entirely from the stand-point of tbe Government, and it was to be considered that tbe Government bad acquired by these proceedings a vast amount of property for which it bad given no equivalent, and that tbe sum thus acquired was largely due to tbe activity and energy of tbe receiver, and tbe fees and expenses were based upon tbe idea of tbe acquisition of this property, then it might be estimated in one way. Tbe ■ idea of ■ liberality on tbe part of tbe party acquiring tbe property might be considered. If, on tbe other band, it is to be considered from tbe stand-point of - perfect impartiality between all tbe parties, and in view of tbe fact that tbe law under which these proceedings are bad is part of a •system by which tbe Government is taking property which has been accumulated by a corporation in violation of law, .and simply divert it into other channels, in which it is ■supposed that tbe parties from whom tbe property is taken will yet receive benefit from it, simply turning tbe property into other channels, and for the purpose of effectuating and carrying out a Governmental policy on account of tbe peculiar local conditions in this territory, under conditions that are exceptional, and that all laws which bear upon this subject should be carefully executed, and in such a way as not to carry with it the slightest imputation or even appearance of peculation or the suggestion of gain on the part of parties who accept responsible positions and places of trust under it, then a person estimating the services might estimate differently; and, in any event, it is not a mere question of the opinion of persons as to the amount of compensation, and nobody could be charged with fraud for having an excessive and extravagant opinion on that subject. The subject we intended to refer was as to whether the receiver and his attorneys had been guilty of official misconduct; whether they had been using their positions in the case — their relations to it as officers of the court — to defraud the fund. The testimony shows that previous to the presentation of this petition an order had been made by this court referring the subject of compensation to E. T. Sprague, as examiner of the court, to take testimony upon that subject, and report it; that Mr. Dyer appeared before that examiner, and testified as to the services performed by him; and he was asked the question as to what he considered his services were worth, and he answered that he considered them worth at least $25,000. This is the only claim that he has made. He produced other witnesses upon the stand of known respectability and high business standing, and his testimony as to the work he had done was stated to these witnesses as an hypothesis upon which they were asked to give their opinion as to the value of the services, and they gave their opinion as to what the services were worth; placing it, variously, from $20,000 to $35,000 or $40,000. Mr. Williams appeared upon the examination in the interest of both himself and Mr. Dyer. Mr. Peters had previously withdrawn from the service of the receiver, and appeared in the interest of the Goverhment, but it is in evidence that he had notified the department of justice that this examination was pending, and of the time when it would take place, and of the fact that he himself had a charge which was then being examined; that he had before this time been acting for the receiver, and that, on account of this delicate situation, he did not wish to appear actively upon that examination, in the interest of tbe Government; and, wben tbe examination was closed, be reserved tbe right to tbe officers of tbe Government to take further testimony, if they should desire to do so. It appears that tbe receiver, prior to tbis examination, bad made application to tbe attorneys for the defendants in tbe main suit to know wbat they considered bis services worth, and that they had said that they would not contest an allowance to him of $25,000. Tbis was upon tbe theory, as stated by them in their testimony, that they bad no interest in that matter, because if they lost in tbe ’ litigation they could bave no interest, and if they succeeded tbe government would make good to them any loss to tbe fund; that tbe receiver then presented tbis consent and certain affidavits and letters from business men'to tbe attorney general at "Washington; that tbe attorney general refused to make any arrangement about tbe. amount of fees, and that tbe matter was referred, back to tbe Court. It must be remembered tbe receiver was acting as tbe officer of tbis Court, and under its appointment; that be did not stand to tbe Court in the attitude that be would to a private person; that be owed to tbe Court absolute good faith-in disclosing wbat be bad done, and all tbe facts bearing upon it, but an over estimate of tbe amount that he was entitled to was something that would not in any way bind tbe Court; that tbis Court bad the right absolutely to fix bis compensation, from which there could be no appeal; so that there was no danger that tbe authority with whom be was dealing could be overreached or in any manner overcome by threatened litigation. Tbe examiner has found that there was no fraudulent claim for compensation made. He finds that tbe facts stated by tbe receiver as to bis services before Examiner Sprague were substantially correct, and be has not found, but expressly refuses to find or enter into tbe subject of, wbat a fair and reasonable compensation is; and in tbis be was correct, because it is not a matter that was submitted to him.

In addition to these charges which bave been specifically set forth and considered, tbe petition, at least by inference, charges that Mr. Williams, being commissioner of schools for tbis territory, was engaged as attorney for tbe receiver against the interests of tbe schools; that Mr. Peters, being United States district attorney for this territory, in acting as attorney for the receiver was guilty of acting against the interests of his clients, and that he had no right to enter upon such duties, and no right to any compensation whatever; and that, the receiver being United States marshal _ of the territory, there was at least connivance between them to uphold and advance the interests of each other as against the fund. The testimony shows that in employing Mr. Williams the receiver did not have in mind at all the fact that he was commissioner of schools, but that he employed him solely -on account of his high professional standing and good character as a citizen. It further shows that Mr. Peters had assisted the attorney general in the presentation of the main case, and appeared before this court for the government, and argued ' in its behalf the motion for the appointment of a receiver. After the receiver was appointed Mr. Dyer applied to him to enter into his employ as counsel; for the reason that, having been employed in the main case, he had become familiar with the object and intent of the law, and to some extent of the duties that would devolve upon a receiver, but that Mr. Peters refused to enter upon such employment without the consent of the attorney general. It further shows that Mr. Dyer made application to the attorney general of the United States for permission to employ Mr. Peters, and that that permission was given, and that thereupon Mr. Peters accepted the employment; that, after the final decree had been entered in this case, Mr. Peters withdrew from that employment; that he kept the government fully advised of the fact of such employment, and of the action taken by him in relation to it. We think the conduct of the receiver, acting under the advice of the counsel he employed and the results attained, and the manner in which the business has been conducted, has fully justified the judgment of the receiver in employing them. When the receiver in this case was appointed in October, 1887, the defendant the church had, some nine months before apparently, and as was claimed, divested itself of all property rights. ,The property which it was supposed actually belonged to it was in tbe bands of persons favorable to tbe defendant, and wbo regarded the legislation under which tbe receiver was appointed as harsh, unfair and unjust. They were acting together under an organization which for completeness is unequaled. The duty confronted the receiver, under these circumstances, to accumulate and get hold of the property. Every step that was taken in this direction required care and consideration, but the business has been so conducted, under the advice and direction of his attorneys, that, with but little litigation, a fund of between $700,000 and 800,000 has been collected, and is in the receiver’s hands. Precipitate and ill-advised action could easily have precipitated difficulty and expense which would have rendered the whole proceeding abortive. The testimony taken upon this examination shows, as we think, that these duties have been performed with the very best of discretion, and in the interest of all concerned, and we have no hesitancy' in saying that their action in the matter, so far as any charges that are contained in the petition are concerned, is fully vindicated, and the conclusion of the examiner that there was no fraud, corruption, misconduct, or fraudulent and unconscionable claims or charges for compensation, or unprofessional conduct on the part of the receiver or his attorneys, in respect to any of the transactions set forth or contained in the petition, should be affirmed by this court.

We are not unmindful that the learned examiner, whose report is before us, accepted the appointment in this case at the earnest solicitation of the Court, and upon the suggestion and consent of all the parties concerned, and that it was accepted by him upon such request and consent, and by reason of it, and not for the compensation that it would afford; and we extend to him the thanks of the Court for giving to the case his high standing, learning, and ability. He has performed the duties assigned to him with great skill, and in a manner wholly and entirely satisfactory to the Court. The counsel appointed by the Court, and who have acted as amici curies, have performed their duties in a manner satisfactory to the Court, and an order should be entered directing tbe receiver to pay each of them tbe sum of $250 for tbeir services, and to tbe examiner tbe sum of $400, ' and tbeir receipts will be vouchers in bis bands as a charge against tbe fund. Other expenses of tbe investigation proper to be charged to tbe. fund in controversy will be allowed and ordered paid, upon being properly verified and presented. An order should be entered confirming tbe report of tbe examiner, and overruling tbe exceptions thereto.

Receiver — Compensation—Ten thousand dollars is a reasonable sum to be allowed the receiver in this case for his services, it appearing that he has handled property to the amount of $750,000, consisting of real estate acquired without trouble, and personal property obtained with little difficulty, chiefly by way of compromise, and that the most of the work had been done by his attorneys and that it was little trouble in caring for the property, and that his active duties covered only a year. Id. — Compensation to Attorneys — Five thousand dollars is a proper allowance to the principal attorney for the receiver for one year’s services, and four thousand dollars is sufficient for his other attorney, who at the same time was United States district attorney and receiving a salary to represent the government. Mr. Henry W. Hobson for plaintiff. Mr. O. W. Powers and Mr. J. R. MoBride for tbe receiver and bis attorneys. Sandeoed, 0. J., and Judd, J., concurred.

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Concurrence Opinion

BobeMAN, J.,

concurred, and said:

Upon tbe order upon which tbe examination has been made, and upon tbe facts as proved, I deem tbe findings are supported by tbe evidence, so far as I have been able to examine tbe proofs.

In regard to tbe compensation to be allowed to tbe receiver and bis attorneys tbe following opinion was delivered:

Judd, J:

Sufficient appears in this case to show that in March, 1887, the congress of the United States passed an act, the seventeenth section of which is as follows: “That the acts of the legislative assembly of the territory of Utah, incorporating, continuing, or providing for the corporation known as the ‘ Church of Jesus Christ of Latter-Day Saints,’ and the ordinance of the so-called general assembly of Deseret, incorporating the Church of Jesus Christ of Latter-Day Saints, so far as' the same may now have legal force and validity, are hereby disapproved and annulled; and the said corporation, in so far as it may now have or pretend to have any legal existence, is hereby dissolved; that it shall be the duty of the attorney general of the United States to cause such proceedings to be taken in the Supreme Court of the territory of Utah as shall be proper to execute the foregoing provisions of this section, and to wind up the affairs of the said corporation conform-ably to law; and in such proceedings the Court shall have power, and it shall be its duty, to make such decree or decrees as shall be proper to effectuate the transfer of the title to real property now held and used by said corporation for places of worship, and parsonages connected therewith, and burial grounds, and of the description mentioned in the proviso to section 13 of this act, and in section 26 of this act; and, for the purpose of this section, said Court shall have all the powers of a court of equity.” In pursuance of the duty imposed by said section, the attorney general of the United States caused a bill to be filed in this Court on the 30th day of July, 1887, and upon the filing of the bill such’ proceedings were had as resulted. November 7, 1887, in the following decree: “This day this cause came on further to be heard, and for the appointment of a reciver herein conformably to the former order of this Court; and thereupon the Court, being fully advised in the premises, hereby orders and adjudges that Frank H. Dyer, Esquire, of Salt Lake, in the said territory of Utah, be, and he hereby is, appointed receiver of the defendant, the late corporation of the Church of Jesus Christ of Latter-Day Saints, and of all its debts and property, real, personal, and mixed, of every nature, kind, and description • whatsoever, including any and all equitable interests wbicb it may bave to any thereof.” Tbe receiver, Dyer, in due time executed bis bond in tbe sum of $250,000, and set about possessing bimself of tbe property, both real and personal, of tbe defunct corporation.

When tbe receiver bad been in office for about one year be came into tbis Court, and asked for and procured an order, making a special reference to E. T. Sprague, as master in chancery, to examine and pass upon tbe receipts and expenditures of tbe said receiver, and to take proof' and report wbat would be a reasonable allowance to bim and bis two attorneys, P. L. Williams and George S. Peters, for tbeir respective services done and performed in-behalf of sucb receivership. In pursuance of this order, such proceedings were had before tbe master, Sprague, as resulted in tbe taking of a large amount of proof, upon wbicb he made bis report to tbis Court, fixing the compensation of the receiver at tbe sum of $25,000, and that of each of bis attorneys at $10,000. Tbe master also reported in favor of allowing- to tbe receiver, after passing upon bis accounts, bis expenditures, stated to be $7,865.63. Exceptions to tbis report were filed by tbe complainant,, tbe United States; and, upon sucb report and exceptions, tbe cause, on a former day of tbis Court, was elaborately and ably argued by counsel for both sides; and we come now, after tbe fullest consideration we bave been able to give to tbe cause, to announce tbe result of our conclusions.

Tbe report of tbe receiver, filed with us, and wbicb is appended to tbis opinion as a part of tbe same, shows that prior to October 31, 1888, there bad come to bis bands, of tbe derelict assets of tbe defunct corporation, real estate situated in tbe city of Salt Lake, and other places in tbe territory, aggregating in value tbe sum of $285,000; and that in like manner there bave come into bis bands moneys and various kinds of personal property of tbe value of' $439,788.38 — making tbe aggregate sum of $724,788.38. It should be stated that a small portion of tbis aggregate sum came to bis bands between tbe 31st day of October" last named and tbe 31st day of January, 1889. In tbis aggregate sum are included accretions of various kinds, including rent of sheep not yet due, dividends, interest,, rents of lands, etc., aggregating tbe sum of $29,188.92.

Much evidence has been taken by the receiver, and is here submitted as a part of his report by the master. The witnesses, who are shown to be business men of great experience and high character, when interrogated as tO' their estimate of the value of the services of the receiver, put it, some of them, at a per cent.-upon the property held by the receiver, and others at a lumping sum. They take ■ into their calculations, some of them, the trouble that the receiver had to acquire possession of the property, the amount of bond he had to give, and the responsibility attached to holding and keeping so large an amount of property; and yet others think he should be paid for what they termed the “odium” attaching to his position as receiver — meaning by that, as it seems, that because the congress of the United States has dismantled this corporation, and provided for the escheat of the property which it. held contrary to law, that it was odious. It is sufficient of this to say that this Court, sitting here to administer the laws of the government of the United States, will not only not act upon, but will not tolerate, any such suggestion as ■ the basis of its decision.

It has been strongly urged upon us by counsel at the bar that we ought to act upon the opinions of these witnesses, and fix the compensation of the receiver at the sum of $25,000. We do not think so. The facts upon which those gentlemen 'base their opinion are in record, and are as fully before us as they were before them; and, after a thorough examination of the cases upon this subject, no ease has been found in which the Court contented itself with blindly following the opinions of witnesses in fixing the compensation of its receiver. One of the best considered cases to which our attention has been called is the-case of Trust Go. v. Railroad Go., 32 Fed. Hep. 187. At page 191, in speaking of this matter of fixing the compensation of the receiver, the Court uses this language: “They are all wicnesses whose opinions are entitled to the-highest respect on account of their characters, their abilities, and their experience; and yet the very differences that exist between them show that there is no fixed standard or rule to guide us, and that we must fall back at last upon our own judgment of what, under the circumstances, ■would be fair and reasonable compensation for the services.” This language is well adapted to the case in hand. The witnesses in this case variously estimate the services of the receiver, running from the sum of $20,000 to $35,000, or upwards. We conceive the true rule of law to be in all cases that the Court shall look to all.the circumstances of the case, such as the amount of property to be handled, kept, and cared for; the difficulty or ease with which the receiver got the same in hand; the kind and character of the property; the amount of bond required; the business character and integrity required for the work; and, finally, the manner in which the trust has been executed; and then say what would be a reasonable and fair allowance, keeping in mind that the “ laborer is worthy of his hire,” and that extravagance is to be avoided, . Testing this case by the rule announced, we have had 210 difficulty in coming to a conclusion that is entirely satisfactory. More than one-third of this property is real estate, wrhich requires but little trouble to care for. Most of the cash in hand, as well as the other personal property, was acquired with but little litigation; indeed, we may say, without any. The sheep were at once leased out by contracts that fully acquit the receiver of any responsibility or trouble during their existence, and compel the lessees to return a like number and quality of sheep. The money is in the banks, and the dividends upon the stocks are easily collected. The active duties of the receiver, with reference to his trust, for the most part ceased at the entering of the final decree, since which time he has been but little else than a stakeholder. We think the proper way to fix compensation in this case is not by a per cent., but by a salary; and we have determined to fix it for one year, dating from the time of the appointment; and we think that $10,000 for that year is a fair and reasonable allowance, under the rule laid down in this opinion. With this we are entirely content. We do not intend by this to be bound as to what allowance we will make for services performed after the time covered by tbis allowance; but in the future, as in tbis case, we will be governed by what may seem to us proper, under all the circumstances. We can say for tbis receiver that, so far as we can see, be has brought to his aid a full measure of ability and integrity in the management of his trust, and we have no doubt that his past conduct will prove a voucher for the future.

So far as the compensation of the receiver’s counsel is concerned, much of what has been said applies to them. The law is elementary that the fixing of fees between client and attorney in cases of this kind is peculiarly the province of the Court. So jealous are Courts of this matter that, even in cases where the client contracts to pay the attorney a fixed amount, in writing, the Court will inquire into its reasonableness. Horriberger v. Bank, 4 Cold. 531. In this case the Supreme Court of Tennessee, upon full hearing, took the responsibility of cutting off about two-thirds of the fees claimed under a written contract, because the claim was deemed by the Court to be unreasonable. The facts as to the attorneys in this case show that their active duties, except to give advice, virtually ceased at the “compromise,” as it is called, in July, 1888; and that in the most difficult part of the litigation they had the aid of another firm of lawyers, equal in ability to any in the Territory. We think that for the year beginning with the appointment of the receiver, $5,500 would be a fair and reasonable compensation for the services of Mr. Williams. The receiver states in his testimony that Mr. Williams was his principal attorney, and that he employed Mr. Peters to assist him. This may not be the exact language, but the proof substantially shows that Williams was the principal counsel. In fixing Mr. Peter’s allowance, we do not lose sight of the fact that much, if not, indeed, the principal part, of his time, was given to his official duties as district attorney for this Territory. His services ceased, too, at the entering of the final decree in the cause. Looking to the whole case, we think that $4,000 is a fair and reasonable allowance to him. Of course, this is not intended to cover whatever charge he may see proper to make for any services he may have performed for the Government, as its •counsel in the original case. That will be the subject of a settlement between him and the Government; which, if the Government finally succeed in recovering the prop- • erty in the hands of the receiver, he can be paid out of the property so recovered. The case of A dams v. Woods, 8 Oal. 306, cited to us as an authority why the receiver • could not employ Mr. Peters, is not in point. Those cases and others of the kind all go upon the idea that there was a conflict of interest. In this case there is not only no conflict of interest, but the interests of the United "States and the receiver are in exact harmony, and there was no impropriety whatever in the receiver employing Peters. The sums fixed in this opinion, namely, $10,000 to the receiver, $5,500 to Mr. Williams, and $4,000 to Mr. Peters, and the disbursements of $7,865.63, making the aggregate sum of $27,365.63, will be paid by the receiver; ■ and the same shall be allowed to him as credits upon his •accounts as receiver in this cause. A decree will be • drawn and entered in conformity with this opinion.

SanDeokd, C. J., and Henderson, J., and Boresian, J., concurred. -

The question of the contempt of the school trustees 'having- been reserved now came up for decision.

Messrs. Zane and Zane and B. N. Bashin for the school trustees argued that the statements contained in the writing were exactly true, and the examination had ■.shown them to be true. It had been shown that every statement contained in their petition was fully sustained ’ by the evidence, yet that those statements contained no charges of corruption or fraud or wilful misconduct or of a fraudulent and at the same time unconcionable claim. Yet owing to that evidence, the Court had cut- down the • compensation claimed by the receiver from $25,000 to •' $10,000 and that claimed by each of his attorneys from : $10,000 to $5,500 to one and $4,000 to the other. By ■saving the fond the snm of $25,500, the trastees had performed a great public benefit and their object was fully satisfied. They made a foil disclaimer of any intention to reflect upon or insult the Cotart, but that they simply tried to state what they considered the facts.

.Judd, J.:

Upon a former day of this Court, T. C. Bailey, Budolph Alff, J. F. Millspaugh, and L. U. Colbath came into this Court with a paper writing, which was read to the Court by their counsel, and which 'at that time was taken under advisement by the Court, said paper writing-purporting upon their part to be a withdrawal from an investigation, which they had instituted under a petition theretofore filed by them in this cause. After full consideration by the Court, at a subsequent day, an opinion was delivered which held that the paper referred to was a contemptuous proceeding, and that the parties who signed the same were guilty of contempt in the face of the Court. The opinion so rendered is now upon the files of this Court in this case, and is referred to as showing the action of the Court. An order was thereupon entered in pursuance of the opinion, as follows: “In this case it is ordered that the clerk of this Court issue a written notice to each of the persons, Rudolph Alff, J. F. Millspaugh, L. U. Colbath and T. C. Bailey, requiring them to appear before this Court on January 30, 1889, at 10 o’clock A. M., to show cause why they should not be punished for their contempt; and in case they fail to appear, the clerk will issue writs of attachment for their arrest, and to bring them forthwith before this Court.” In accordance with that judgment the order therein directed was issued, and the parties on the 30th day of January, came into Court, and filed their sworn answer, in which they set out much matter that is wholly irrelevant to the judgment they were called upon to answer, but, among other things, they say: “Your petitioners further represent that they have acted in the best of faith throughout this whole proceeding; that they have tried to the best of their ability to do their duty, and consciously have made no attempt to trifle with the Court; that they believed the statements made by them to the Court to be true; that they did not think nor believe, nor had they the slightest conception, that those statements were scurrilous, disrespectful, insolent, or contemptuous in any particular; that nothing was further from their minds than the making of any insinuation or charge against the Court, or of stating anything that would' be considered contemptuous by the Court.” It then prayed that they might be discharged from such contempt proceeding.

Upon the request by the defendants that they might be heard in their behalf before the Court, opportunity has been given to them, and the case has been ably, earnestly, and respectfully submitted before this Court by two able counsel. It will be. seen, however, that, although the argument of counsel has taken a wide range, the direct question before the Court is the proper construction of the paper filed before this Court, which is fully set out in the opinion heretofore referred to. The good faith of the defendants is asserted by their counsel with much energy and confidence. Still, however, notwithstanding their good faith, they are responsible for the language used by them in any proceeding which they may bring into this Court, and it is not for them, nor their counsel to construe or to say what effect such language will have. This direct question came before the Supreme Court of California in the case of McCormick v. Sheridan, 20 Pac. Rep. 24. In that case the Court show that “a petition for rehearing stated that ‘how or why the honorable commissioner should have so effectually and substantially ignored and disregarded the uncontradicted testimony, * * * we do not know. * * * It seems that neither the transcript nor our briefs could have fallen under’ the commissioner’s observation. ‘There is not a scintilla of evidence to the contrary, and yet the honorable commissioner assumes,’ etc., and ‘in very euphuistic language says,’ etc.: ‘A more disingenuous and misleading statement of the evidence could not well be made.’ ‘It is substantially * * * untrue and unwarranted.’ ‘ The decision * * * seems to ns to be a travesty of tbe evidence.’ ” This is the exact language which the Supreme Court of California, in that opinion, found to have been contained in the brief and petition presented by the attorney to the Court in that case for a rehearing, upon which it was held by the Court that the counsel draughting the petition was guilty of contempt, committed in the face of the Court, notwithstanding a disavowal of disrespectful intention. The Court distinctly says: “ These disclaimers by tbe respondent we accept as true, so far as it is possible to do so without giving a constrained construction to the language used by him in his petition for a rehearing. It may be that he acted in good faith, and without any design, wish, or expectation of' committing any contempt, and we accept his explanation in palliation of the offense; but the language we have quoted from his petition for a rehearing is too plain and direct in its imputation of negligence and bad faith to' authorise us in taking the disavowal of the defendant as sufficient to purge him of contempt. As was said in B,e Woolley, 11 Bush, 109: £We recognize to the utmost reasonable limit of its application the rule that a supposed contempt, consisting in mere words, which are apparently intended to be scandalous and offensive, but which are at all susceptible of a different construction, may be explained or construed by the speaker or writer, and that upon his sworn disavowal of intention to commit a contempt, próceedings against him must at once be discontinued. But this rule does not control where the matter explained or written is of itself necessarily offensive and insulting. In such a case the disavowal of an intention to commit a contempt may tend to excuse, but it cannot and will not justify, the act. People v. Freer, 1 Caines, 485. An intention- to be offensive may be-disavowed, and the particular language to make the charges and imputations may be withdrawn, but the effect of the paper or publication, the ideas conveyed, the charges and imputations made, may remain.’ ” Notwithstanding, in that case a disclaimer by the attorney who filed that paper, of the strongest character, the Court proceeded to adjudge him guilty of contempt, and assessed a fine upon him of $250 as a judgment for his contumacy. In this case the Court has adjudged that these parties are guilty of contempt by reason of the fact that the language of the paper brought into Court by them, and read to the Co art, was of .itself a contemptuous proceeding. It was one that this Court could not pass by and maintain its dignity and standing as a Court before . the community. It has been truly said that the dignity of the Court is its life, its vitality, and that the Court, in the right of self-defense, is bound to protect itself from the assaults of persons who do not preserve that respect that the laws of the country require they •should; nor, as supposed by counsel at the bar, is the right of this Court to punish for contempt confined to the •cases mentioned in the statutes of the Territory, but it is a right which has at all times existed in Courts by common law, both in England and America. It is a common-law right; it is a right which the Court, independent of any •statute upon the subject, must exercise, or it would be powerless to defend itself against the assaults of the malicious. These remarks are made, not so much to be applied to the defendants in this case, as to assert the doctrine once for all that Courts established by the •Government have the right, and will exercise the right, to protect themselves in the orderly and proper administration of the laws which they are called upon to administer in the exercise of their jurisdiction. As before stated, the judgment of this Court, as found in its opinion of a former day, is entirely satisfactory, and a further examination of the authorities has tended to strengthen the Court in the opinion there rendered. We are relieved, however, of the unpleasant duty of administering any severe punishment to these defendants, for the reason that their counsel have not only made for them an open, manly, and frank disclaimer, but the have now, upon the hearing, come into Court and asked that they be allowed to withdraw the paper containing the language which was found to be offensive, and by this to express their good faith when they say that they did not intend any contempt by tbs paper. We are glad to say that this proceeding has ended in a manner much more agreeable to the Court than if we had been compelled, as we should have been had the case taken a different turn, to assess upon these defendants a severe penalty in vindication of the law. Their disclaimer and motion for withdrawal of the paper are accepted by the Court, as before said, as made by them in good faith, and they are allowed to withdraw from the records in this cause the paper which they have read to the Court, and on account of which they were adjudged to be in contempt. We feel, however, that under all the circumstances, it is but right and proper that they should pay the costs of this proceeding in contempt against them, and a decree will be entered directing that they pay such costs, and that execution issue therefor.

Sandeord, C. J., and Henderson, J., and Boreman, J., concurred.

Thereupon the costs were assessed against the school trustees, and many persons having asked the privilege of paying the fine assessed against them, it was permitted to be paid by a public subscription, with numerous contributors.

Case Details

Case Name: United States v. Church of Jesus Christ of Latter Day Saints

Court Name: Utah Supreme Court

Date Published: Jan 15, 1889

Citation: 6 Utah 9

Court Abbreviation: Utah