28 minute read
Utah State Supreme Court Justice Samuel R. Thurman
Samuel R. Thurman. USHS collections.
Utah State Supreme Court Justice Samuel R. Thurman
BY JOHN R. ALLEY, JR.
SAMUEL R THURMAN'S 1917 APPOINTMENT TO THE Utah State Supreme Court by Gov. Simon Bamberger was a fitting climax to an active career in Utah politics during its most turbulent years. His appointment, the first of a Mormon, by the state's first non-Mormon governor, to a court that had inherited its initial justices from its territorial predecessor—a primary instrument of a federal campaign against the Mormon church—represented the growing reconciliation between religious factions since Utah's admission to statehood He had spent much of his life trying to achieve that end. Moreover, in an era before the supreme court became nonpartisan, he was one of the first Democrats to serve on it. This too was appropriate since he had served his party long and well and had sought at an early date to convince his fellow citizens that the introduction of the national party system into Utah politics was one of the best ways to diminish the divisiveness of the prevalent politics by religion Nevertheless, both before and after his tenure on the court he worked hard to make all Utahjudicial elections nonpartisan.
Samuel Richard Thurman was born in Hodgenville, Larue County, Kentucky, on May 6, 1850. His parents were William Thomas and Mary Margaret Brown Thurman, both of whom came from distinguished families. William was descended from the Livingstons on his maternal side, and his brother Jackson and other Thurmans were active in Kentucky politics. Mary Margaret's grandfathers, John Yates and John Brown, were both officers in the American revolutionary army Yates served as a captain under George Washington at Valley Forge. William died while Samuel was one year old. Mary Margaret, who had by then borne four children, took a second husband, Jesse Jaddie, when Samuel was five years old and subsequently bore three more children. Samuel lived in Hammondsville, Kentucky, until his mother's remarriage when they moved to his stepfather's home in Hart County. Despite some economic hardship after the death of her first husband, Mary Margaret insisted that her children receive a good education. Her success may be measured by the fact that at least three of them later taught school. Samuel graduated from Locust Grove High School and Sonora Academy in Kentucky and later attended both the University of Deseret (now the University of Utah) and Brigham Young Academy (predecessor to Brigham Young University) in Utah. After graduating from Sonora on May 15, 1869, he taught school for six months in Magnolia, Kentucky
In 1864 Samuel's older brother George William started to California with a company of young men Apparently finding Utah to his liking, he stayed and in 1868 settled in Lehi as a schoolteacher. In 1869 he returned to Kentucky to bring his mother and her family to Utah. Samuel and his brother David John waited until spring 1870 to follow them. They reputedly "rode the rails" of the one-year-old transcontinental line part of the way. In Utah they also turned to teaching. (On Christmas Eve 1871, while decorating a community Christmas tree, George was shot and killed by a rowdy student whom he had previously chastised.) During the next eight years Samuel taught school and used his free time to study law In February 1871 he joined the Church of Jesus Christ of Latter-day Saints.
Samuel married Isabella Karren of Lehi on May 4, 1872. They would have eight children: Richard Bertram, born November 7, 1873; May Belle, May 18, 1876; Mary Margaret, November 21, 1878; Lydia Catherine, May 2, 1882; William Thomas, April 21, 1885; Samuel David, July 25, 1887; Victor Emanuel, May 6, 1890; and Allen Grover, February 6, 1893.1
Meanwhile, Samuel's study of the law also bore fruit when in 1875 at the age of twenty-four he was appointed city attorney for Lehi. He did not remember his introduction to trial law as auspicious (although he was city attorney he would not be admitted to the bar until 1878 or 1879). He "conceived the brilliant idea" of trying his first two cases together. In the trade of a calf one man was accused of swindling another, who in turn was accused of assaulting the alleged swindler Although the jury was instructed that it was up to them to decide whether the second party, who admitted the assault, was sufficiently provoked by the swindle, they not only found the first party not guilty of the swindle, thereby removing the possible provocation, but also, having considered the assault first, claimed there was enough reasonable doubt about whether the second party had been provoked to find him not guilty as well. Samuel drolly attributed the verdicts to "the efficiency and flexibility of the doctrine of reasonable doubt."2
Thurman also served as auditor and alderman of Lehi. In 1877, while holding the latter position, he became mayor when his predecessor resigned. This temporary role lasted only until 1879, but he was elected mayor in his own right in 1881. In November 1882, three months before the next city election, he resigned in order to move to Provo and "devote hereafter his whole time to the practice of the law."3 In fact, however, his public service career was blossoming He had already served in the 1882 territorial legislature, having been elected in 1881, and would continue to do so until 1890. Soon after his arrival in Provo he was appointed city attorney, a position he held until 1890. He would also function as city attorney of American Fork, Pleasant Grove, Springville, Spanish Fork, and Payson And in 1883 he was elected county attorney for Utah County, where he served until 1890 concurrently with his other offices and while devoting at least some time to private practice.
By the time he undertook these multiple duties Samuel had had some formal legal education to supplement his private reading. Following his first admission to practice law, in the First Judicial District Court of Utah in March 1879 (some sources say 1878 to the bar of the Utah Territorial Supreme Court), Samuel in September 1879 went to Ann Arbor to attend the University of Michigan Law School. It had gained national fame because of its faculty—especially Dean Thomas Mclntyre Cooley, who was considered by many to be the preeminent American expert on constitutional law—and because of its policy of admitting any student over the age of eighteen who could present "satisfactory evidence of good moral character."4
Although several sources state that Samuel graduated from Michigan in 1880, his grandson said that he was compelled by family sickness to return to Utah five weeks before completing his law classes.5 The lack of a degree was not much of a hindrance in that time and place. George Sutherland, for example, who was Thurman's partner and later an associate justice of the U.S. Supreme Court, also attended Michigan but did not take a degree
Thurman's fellow teacher in Lehi, David Evans, had also read law with him there, and when Evans returned in 1884 from his own studies at Ann Arbor they formed the firm of Thurman and Evans Samuel, who was widely known for his wit, later recalled their first case in district court:
Evans was later appointed assistant U.S. district attorney, and in 1886 Samuel became a partner with George Sutherland in the firm of Thurman and Sutherland Sutherland subsequently represented Utah in the U.S. Senate and served as president of the American Bar Association before his 1922-38 term on the U.S. Supreme Court. Soon the firm, with the addition of William H. King, who would also be a U.S. senator, became Thurman, Sutherland, and King; however, King was appointed to the Utah Territorial Supreme Court in 1890.
The firm of Thurman and Sutherland continued until 1893.Although a successful and friendly partnership, the two men were in some ways an odd couple in that era of sectarian conflict Thurman, a Mormon and a leading member of the church's People's party, was increasingly an advocate of the Democratic party; and Sutherland, a non-Mormon, was an equally active Liberal cum Republican. (One interesting sidelight on the two men is that many years later Thurman supported Franklin Roosevelt's attempt to pack the U.S. Supreme Court, of which Sutherland was then one of the more conservative members.) But political appearances in the 1880s could be deceiving. Thurman aswell as King and Evans were among a growing number of young Mormons, second-generation Mormons, or children of Mormons who associated comfortably with non-Mormons and who in the 1880s responded to increasing attacks on polygamy and the Mormon church by seeking some form of accommodation with the rest of the nation. Sutherland, on the other hand, though a gentile and a prominent member of the anti-Mormon Liberal party, was generally friendly to Mormons and a defense attorney in many polygamy cases.
Following Thurman's election to the territorial legislature in 1881 he played a role in the conflicts created by the passage of the federal Edmunds Act in March 1882. That act strengthened the existing laws against polygamy, defined living in a polygamous marriage as unlawful cohabitation, disfranchised polygamists, excluded them and those who believed in plural marriage from juries, and established the Utah Commission to supervise the electoral process in the territory. Samuel had been elected on the People's party ticket, and at the party's October 1882 convention he was appointed chairman of a committee to draft a "Declaration of Principles"—a platform that responded to the Edmunds Act, the stated positions of the Liberal party, and the acts of non-Mormon officials by appealing to the supremacy of constitutional law and "the sacred privilege of local self-government."7
The following year he delivered a Fourth of July speech in Provo that, after tracing the history of political freedom with special emphasis on religious freedom, declared:
This was not mere Independence Day rhetoric. Thurman hoped to bring all Utahns into full participation in the American body politic, but he and many others were, especially after the so-called "raid" or "crusade" against polygamists picked up steam in the mid-1880s, torn between adhering to the freedom of conscience they felt the Constitution guaranteed and shouldering obligations as American citizens, which included obedience to laws propagated by the people of the United States.
Samuel's prominence grew during his tenure in the territorial legislature from 1882 to 1890. He became a leader of that body and was described in 1886 as
His accomplishments while serving on the judiciary committee included twice serving on joint legislative committees that revised and compiled the territory's laws He expended much effort trying to find reasonable answers to the struggles between Mormons and anti-Mormons. When federal judges raised the ire of the Mormon community by resorting to open venire after jury lists were exhausted due to disqualification of Mormons, he introduced a bill that would have provided a supplementary list of jurors from which to draw when the original jury pool would not suffice.10 When the territorial government reached a near standstill because of differences between the governor and legislature over who had the power to appoint territorial officials, Thurman, despite the People's party's opposite stand, conceded the governor's right, for which he was attacked by both sides for "double-dealing" and "posing as a Liberal."11
In 1884, in the wake of Grover Cleveland's election, a sizable group of young Mormons and gentiles began working toward replacing Liberal party versus People's party politics in Utah by building a Democratic party in the state. By 1888 Thurman was one of the principal leaders in the effort, which by then had been abandoned by most of the non-Mormons and was known as the Sagebrush Democracy. Samuel, nominated as the party's candidate for delegate to Congress, became the first person to run for Congress from Utah on a national party ticket. What little hope the Democrats had was demolished when they lost the support of the Salt Lake Herald. Thurman received only 561 votes in the election which People's party candidate John T. Caine won handily. Grover Cleveland also was defeated in 1888, and the vice-presidential candidate who went down with him happened to be Allen G. Thurman, Samuel's distant cousin. Although it is not clear that the short-lived party officially took such a stand, the Sagebrush Democracy was viewed as an advocate of obedience to national laws, including those against polygamy, and of secular government for Utah, free of church control
In March 1887 Congress had passed the even harsher antipolygamy Edmunds-Tucker Act, which had helped motivate the Sagebrush movement. Later in 1887 Samuel served as a delegate to a constitutional convention, the sixth attempt at achieving statehood for Utah. The members of that convention, though predominantly Mormon, were known as non-polygamist Mormons, and in an attempt to appease Congress and prove their loyalty as United States citizens, they included an article in the proposed constitution prohibiting polygamy Samuel was a member of the committee that visited the Utah Commission to urge an election on the constitution.
Yet, while he appeared to advocate such compromises with the nation, Samuel's beliefs now placed him in the position of many of his coreligionists, and he began hiding part of his life from public view. For on July 16, 1887, nine days after the convention adopted its antipolygamy constitution, he married a second wife, Victoria Adelaide Hodgert, and thereby became a polygamist. Then, on August 16, 1889, eleven days after his reelection to a fifth term in the legislature, Samuel was arrested at the home of Victoria's mother and charged with unlawful cohabitation. At his preliminary examination the following morning he was represented by George Sutherland, and assistant district attorney David Evans prosecuted At the end of the examination Evans suggested that the evidence might be insufficient to hold Thurman, but Commissioner Hills bound him over for action of the grandjury. Perhaps because of the weak case, Samuel, as far as has been determined, was not indicted The local press reported Thurman's arrest and the charges against him.
By the next year events were moving rapidly toward settlement of Utah's crisis. In September 1890 Wilford Woodruff issued his famous Manifesto promising submission to the laws against plural marriage. Presidential pardons from Benjamin Harrison and Grover Cleveland would come in 1893 and 1894. In 1891 the People's party voted itself out of existence, and two years later the Liberal party followed. The seed Samuel and others had planted in the mid-1880s now took hold as the national Democratic and Republican parties took center stage in Utah politics.
Meanwhile, on November 7, 1890, Samuel had departed for England on a mission for the Mormon church. He did not return until May 1892. The suspicion lingers that because he was a prominent politician and lawyer suspected of polygamy at a time when the church was trying to put the issue to rest, it was arranged that he be absent from the scene while the pressure on polygamists eased. After his return he continued to cohabit unlawfully with his second wife at least through the 1890s, during a period when he was an officer of the court. Most Mormon polygamists, while avowing obedience to the law, understandably refused to abandon their families.
With Victoria Hodgert, Samuel had three children: Lucile, born March 25, 1890; Samuel Clifford, born September 21, 1893; and Paul Eugene, bornJuly 15, 1899.
Thurman returned to government service in 1893, receiving an appointment from President Cleveland as assistant U.S. district attorney, a position he held until statehood in 1896. He later recalled with amusement accompanying district attorney John W. Judd to Beaver "to be initiated into the duties and mysteries of prosecuting criminal cases, a business in which I had only an experience of about eleven years." Judd introduced him to the court and members of the bar, all of whom already knew him quite well, "as his able assistant who would look after the minor cases while he would take charge of the more important ones."12
Samuel's private practice also continued between 1892 and his appointment to the Utah Supreme Court. In 1893 he formed a new partnership with Edgar A. Wedgwood, who in 1898 departed for the Philippines to serve as a general in the Spanish-American War. In 1897Joseph L. Rawlins—who had been Samuel's colleague in founding Utah's Democratic party and who was elected U.S. senator later the same year—and J. H. Hurd joined them in the firm of Rawlins, Thurman, Hurd, and Wedgwood. For the first time one of Samuel's firms, previously based in Provo, opened an additional office in Salt Lake City At some point in this period he was also briefly associated with Jacob Evans and W E Rydalch In 1902 when General Wedgwood returned from the Philippines the firm of Thurman and Wedgwood was reestablished, and in 1906 they moved to Salt Lake City where Alonzo B. Irvine joined them in the firm of Thurman, Wedgwood, and Irvine and where Samuel continued to reside. He and his partners were soon especially well known for their expertise in water and irrigation law. Between 1893 and 1912 he was also chief assistant in the legal department of the Denver and Rio Grande Railway.
In 1894 Congress passed the Enabling Act allowing Utah to organize for statehood, and in November Samuel was among 107 delegates elected to the constitutional convention held in March, April, and May 1895 in Salt Lake City. Although Republicans constituted the majority at the convention, Samuel was one of the most active and influential delegates. In terms of number of speeches, his contribution was exceeded only by Republican leader Charles Varian and Democratic colleague David Evans. Thurman served on the Judiciary, the Elections and Right of Suffrage, and the Corporations Other than Municipal committees as well as on a special committee to draft an address to accompany the constitution in its presentation to the people of Utah.
Throughout the proceedings he often interrupted debate with a humorous comment or, more important, with a comment aimed at keeping the convention focused and on course or at urging the members to be economical, diligent, and efficient and to avoid extraneous, redundant, and superfluous discussions and actions, especially on matters better left to the state legislature He worked for separation of school and judicial elections from the general election with the object of making them nonpartisan. Regarding judges, he stated that "the object should be to get the best man and unite on him, because he has got to be a man that will be at all times fair,just, and impartial in his decisions."13 His position on school, but notjudicial, elections entered the constitution. He also tried but failed to put stronger restrictions on eminent domain by requiring just compensation before taking property for public or private use, arguing that "the right of property is a sacred right. . .the man who ownsjust one little ewe lamb has just as much right to that as the man has to his cattle that graze on a thousand hills."14 He was more successful in his efforts to ensure that government credit could not be used to aid private enterprises. On other issues that brought much debate and upon which hejoined the victorious side, he favored apportionment that would allot representation by counties and prevent absolute dominance by Salt Lake City, opposed consolidation of the state university and agricultural college at a fixed location, and opposed prohibition.
Probably his most important contribution involved suffrage for women, the issue that occupied the most total time during debate. Both parties had included planks in their platforms advocating suffrage, and Samuel had written the plank for the Democrats. But when the issue came before the convention, anti-Mormons in particular, who claimed Mormon women would merely vote as their husbands did, put up a strong resistance, with support from a handful of Mormons, notably B. H. Roberts. Samuel led the Democrats' effort to steer the article through the convention and, while others spoke at greater length in favor of it, made a particularly effective reply to fellow Democrat Roberts's appeal to expediency (Roberts claimed the article threatened Congress's acceptance of Utah statehood):
Women were granted suffrage by the constitution, and many years later Utah's first congresswoman, Reva Beck Bosone, declared, "The women of Utah should bow low to . . . that great supporter of women's rights, Samuel R. Thurman."16
In 1912 Samuel's labors for the Democratic party resulted in his election as state chairman, a position he held until 1916 When he became chairman the party's fortunes were at a low point due to the effectiveness of Republican Sen. Reed Smoot's political organization, Mormon church president Joseph F. Smith's personal endorsement of William Howard Taft for president, and a drain on Democratic votes by the Progressive party. But during Samuel's tenure the Progressive party merged with the Democrats in Utah, and a revival began that culminated in 1916 when Democrats Simon Bamberger, William H. King, and James H. Mays won the offices of governor, senator, and congressman, respectively
The Utah Constitution provided that after 1905 the Utah State Legislature could increase the number of Utah State Supreme Court justices from three to five. On March 10, 1917, Governor Bamberger signed a bill doing just that and immediately ("within approximately thirty seconds," according to the Salt Lake Tribune) named Samuel R. Thurman and Valentine Gideon of Ogden, both Democrats, to fill the new positions, their terms to run until the next election in 1918. On May 8, 1917, they took the oath of office before Chief Justice Joseph E Frick A little over a month later Justice Thurman wrote his first opinion on the court in Coray, Admr. v. Perry Irrigation Co., decided on June 26, 1917.17 Over three hundred opinions would follow, for in September 1918—in response to a letter from forty members of the Utah Bar urging him to do so—Thurman announced that he was a candidate for reelection, and in November he was elected to a ten-year term.
It is impossible to give a fair sampling here of the range of his opinions, but in two early examples he to some extent showed his judicial colors by, in the first, expressing his progressive, loose construction view of the constitutionality of legislation and, in the second, strictly defining limits to the powers of the supreme court. In Scranton Leasing Co. v. Industrial Comm. of Utah, decided in January 1918, his opinion upholding the constitutionality of Utah's Workmen's Compensation Act stated that
In Re Swan's Estate, decided in February of the same year, he held to a strict definition of the constitutional provision limiting the supreme court to consideration of questions of law rather than questions of fact:
During his tenure Justice Thurman consistently showed deference and respect for trial courts, which he never referred to as lower courts He was also known for his professional treatment of attorneys appearing before him.
One opinion in particular may have troubled him, but it probably was also a sincere expression of the conscious inconsistencies with which he and many other Utahns had lived. In March 1926, in State v. Hendrickson, the supreme court affirmed the judgment of the trial court convicting Victor Hendrickson of polygamy. Although this was a case where the appellant's defense was that he honestly believed his first wife had obtained a divorce, Justice Thurman, referring to the demands made by the state's Enabling Act and the pledges made in its constitution to prohibit polygamy, wrote that "good faith and honest intention were not admissible in defense."20 In various circumstances, the conflict between the law regarding polygamy on one hand and faith and honest intentions on the other had troubled Samuel for much of his life.
When his term, during which he had served as chief justice from 1927 to 1928, ended, Justice Thurman stood for reelection, but 1928 was a Republican year and he lost to William Folland On his last day in office he recalled his efforts in the state constitutional convention to secure nonpartisan elections for the judiciary and once again urged adoption of such a plan.
Gov. George Dern quickly made use of Thurman's skill by appointing him in 1929 to the State Tax Revision Commission. He returned to the practice of law in partnership with Delbert M Draper and, a few years later, with Irvine, Skeen, and Thurman—the Thurman in this case being his son Samuel D. whose son, also Samuel, would become dean of the University of Utah Law School. Sons Richard B. and Allen G. were also distinguished attorneys, Allen serving as a district judge.
Justice Thurman also continued to take an active interest in Democratic politics. He declared that itwas his hobby. He was an avid supporter of Franklin D. Roosevelt and encouraged young Democrats to enter politics Reva Beck Bosone recalled that when she visited him in the summer of 1936 he grasped her hand and said, "Reva, I think you should run for a cityjudgeship this fall and then go on up to the Supreme Court," thus launching her pioneering political career as a judge and congresswoman. 21
Thurman died on July 12, 1941,at his home in Salt Lake City. He was ninety-one years old. Among the many tributes, those of colleagues Valentine Gideon and Delbert M. Draper seemed particularly appropriate. Gideon wrote,
Draper stated,
NOTES
Dr Alley is editor of Utah State University Press.
1 Information regarding Samuel Thurman's children is from Family Group Records for Samuel Richard Thurman, Genealogical Library of the Church of Jesus Christ of Latter-day Saints, Salt Lake City Short biographies of Thurman can be found in J Cecil Alter, Utah, the Storied Domain: A Documentary History of Utah's Eventful Career (Chicago: American Historical Society, 1932), 2:52-54; Frank Esshom, Pioneers and Prominent Men of Utah (reprint ed., Salt Lake City: Western Epics, 1966), p 1213; Portrait, Genealogical, and Biographical Record of the State of Utah (Chicago: National Historical Record, 1902), pp. 411-12; Press Club of Salt Lake, Men of Affairs in the State of Utah (Salt Lake City, 1914), p. 174; Ralph B Simmons, Utah's Distinguished Personalities (Salt Lake City, 1933), 1:206; Noble Warrum, Utah Since Statehood: Historical and Biographical (Chicago: S.J Clarke Publishing Company, 1919), 2:96-100.
2 Samuel R Thurman, "Reminiscences of a Barrister," History of the Bench and Bar of Utah (Salt Lake City, 1913), pp 73-74.
3 Territorial Enquirer, November 25, 1882, as found in Journal History, November 25, 1882, p 7, LDS Church Archives, Salt Lake City.
4 John Francis Paschal, Mr. Justice Sutherland: A Man against the State (Princeton: Princeton University Press, 1951), pp 15-16.
5 William T Thurman, "Samuel Richard Thurman," unpublished ms., copy in possession of author.
6 Thurman, "Reminiscences of a Barrister," pp 74-75.
7 Edward W Tullidge, The History of Salt Lake City and Its Founders (Salt Lake City, 1886?), pp 845-47.
8 Territorial Enquirer, July 6, 1883, as in Journal History, July 4, 1883, pp. 3-5.
9 Journal History, January 19, 1886, p 9.
10 The 1874 Poland Act had provided a system of jury selection by the clerk of the district court and each county's probate judge The former was considered to represent non-Mormons while the latter represented Mormons. Although there was Mormon opposition to this provision in the Poland Act, it was considered much better than open venire whereby U.S. marshals who were pursuing polygamists could pull jurors who were expected to be anti-Mormon off the streets.
11 Salt Lake Herald, March 12, 1886, as in Journal History, March 11, 1886, p 11.
12 Thurman, "Reminiscences of a Barrister," p 79.
13 Official Report of the Proceedings and Debates of the Convention Assembled at Salt Lake City on the Fourth Day of March, 1895, to Adopt a Constitution for the State of Utah, 2 vols. (Salt Lake City, 1898), 2:1489.
14 Ibid., 1:336-37.
15 Ibid., 1:434.
16 Beverly B Clopton, Her Honor, TheJudge: The Story of Reva Beck Bosone (Ames: Iowa State University Press, 1980).
17 50 Utah 70.
18 51 Utah 368, 371.
19 51 Utah 410, 425.
20 67 Utah 15, 24.
21 Clopton, Her Honor, TheJudge, p 90.
22 100 Utah xxi-xxiii.
