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Utah Supreme Court Justice William M. McCarty
Justice William M. McCarty from Utah Since Statehood.
Utah Supreme Court Justice William M. McCarty
BY JOHN R. ALLEY, JR.
A PRODUCT OF UTAH'S SOUTHERN FRONTIER, William Murdock McCarty came from humble beginnings He had a good education at home and elsewhere. His father was a sometime schoolteacher and for a while had one of the larger personal libraries in southern Utah. William also attended Brigham Young Academy, but he was entirely self-taught as a lawyer. He learned the law while earning a living through strenuous manual labor. Yet within two years of his admission to the bar he was in constant demand to employ his legal skills as a public servant. The shortage of attorneys in southern Utah partly explains that demand but not its consistency.
Nurtured by parents who had apostatized from the Church of Jesus Christ of Latter-day Saints, William grew up in rural, predominantly Mormon communities. He launched his career in law near the end of Utah's territorial period. At the time, religion divided the territory into two almost wholly separate societies, Mormon and gentile. The federal government was determined to stamp out Mormon polygamy and theocratic rule; this conflict had led to William's Republican father's break with the Mormon church. In his first public office, assistant United States attorney, William prosecuted many cases of unlawful cohabitation. Yet he still moved easily between Utah's divided communities. His Mormon neighbors repeatedly helped elect him to, in succession, county attorney, districtjudge, andjustice of the Utah Supreme Court.
McCarty was credited with four qualities that served him well as a judge—direct honesty, fair impartiality, strong convictions, and a devotion to justice Each of these characteristics needs qualification, however. His honesty occasionally extended to impolitic bluntness. His sense of justice, which he claimed influenced him more than legal technicalities, sometimes appeared moralistic or self-righteous The impartiality that supported him across the religious divide must be measured against his strong convictions, loyal adherence to the Republican party, and work outside the court for fellow party members during his tenure on the bench. And although he was known for addressing specific circumstances in the cases before him, his fervent, rigid sense of social obligation and morality and his occasional outspokenness sometimes colored his impartiality with a tint of prejudice.
The second of an eventual twelve children, William Murdock McCarty was born on May 15, 1859, in a one-room log cabin in the southeast corner of the fort where all the people of Alpine, then called Mountainville, lived for protection. His parents were James Hardwick McCarty and Lydia Margaret Cragun, cousins.1 James's father was the brother of Lydia Margaret's maternal grandmother. A former backwoods schoolteacher in Kentucky and Missouri, where his early and ardent abolitionism had made him unwelcome, James in 1854 had set out for the California gold diggings only to be diverted by a visit to his Mormon cousin and her husband, Elinor and James Cragun, near Salt Lake City. Working on their farm, he soon joined the Mormon church and, on October 5, 1855, married the Craguns' seventeen-year-old daughter, Lydia Margaret.
In 1861 Brigham Young issued a call for church members to settle Utah's Dixie.James McCarty is reputed to have been one of the first three to volunteer. That same year he also took a second wife, name unknown The family resided in St George and nearby Santa Clara, whereJames taught school and farmed with little success The settlers in Dixie, where Mormon leaders had hoped to establish a thriving cotton industry, were poor, and the McCartys were among the poorest In 1868James moved his wives and family to Summit Creek in Iron County where they had more success. They raised corn and hogs and freighted them west to Nevada mining camps like Pioche and Bullionville that prospered after 1870, absorbing much of the surplus of southern Utah farmers.
James left the Mormon church in 1872. William recalled that his father had not been "in good fellowship for many years, because he did not approve of the defiant attitude of the church toward the Government." Lydia Margaret supported, probably encouraged, James According to William, his mother "from the time that I can remember, was very much opposed to Mormonism."2 From a devout Mormon family, she possibly resented her husband's second marriage. James broke off relations with his plural wife, while continuing to acknowledge their two daughters, and campaigned against polygamy through newspaper correspondence. In the early 1870s President U. S. Grant and his appointees in Utah pursued a get-tough policy toward Mormons. Conflict between their church and the Grand Old Party of the Civil War victors disturbed the McCartys, devout Republicans.
As William matured, he espoused no religious affiliation; in later years, he attended but did not join a Presbyterian church. After the 1890 Woodruff Manifesto called for an end to plural marriage, both James and Lydia Margaret McCarty returned to the Mormon church. Since 1876 they had lived in Monroe, Sevier County, where they ran the Kentucky Hotel and the telegraph and post offices it housed. About that time, William began pursuing a variety of occupations. He farmed, spent three years in Nevada cutting cordwood and driving freight, and worked on the railroad in Colorado. He also worked in the Eureka, Utah, mines—part of the rich Tintic District, where silver, gold, lead, and copper veins were opened in the early 1870s—and possibly in other mining districts. For six months in 1881 and 1882 he attended Brigham Young Academy in Provo. He spent part of the 1880s in the business that had pulled his father out of poverty, freighting produce from Mormon farms to the mines at Pioche, Bristol, and other Nevada towns.
A romantic story found in several sources tells of how McCarty sat under a wagon and learned Blackstone by the light of a candle (or a flickering fire):
He actually did most of his studying at home, spending the inclement part of the year with his books and working on the trail and in the mountains the rest
The significance of McCarty's early training and environment was less Horatio Algeresque self-improvement under arduous circumstances than what his colleague,Justice Daniel Straup, noted:
As ajurist, McCarty was always concerned most with specific circumstances and with what he considered was just in a particular case. Another colleague, Justice Joseph Frick, stated that if McCarty had a weakness, this was it, because he sometimes lost sight of the law as a system in which individual cases had to yield to preserve the good of society as a whole. It is no coincidence that some of McCarty's most important decisions on the Supreme Court involved the adjustment of legal principles to the particular conditions of Utah's farmers and miners.
On September 17, 1887, McCarty was admitted to the bar of the Second District Court in Beaver. In 1890 he was admitted to practice in the Supreme Court of Utah Territory His reputation and connections had grown enough by May 1889 to earn him an appointment from George S. Peters, U.S. district attorney for Utah, as assistant district attorney. This appointment did not last much beyond the May session of Judge Thomas Anderson's Second District Court, where McCarty prosecuted He may have served elsewhere in Utah for the remainder of the year, but by 1890 he was back in private practice full time. He formed a partnership with Orris A. Murdock of Beaver. They advertised their services of "Practices in all Courts of the Territory" and listed McCarty as based in Provo. If he actually moved to Provo, his residence there was of short duration. In 1892 he was reappointed assistant U.S attorney, holding that position in the southern Utah Second District until 1896.
His duties extended through seven counties, and additional responsibilities increased his range. In 1892 he was elected to serve concurrently as attorney for Sevier County, part of the First District He was reelected to this position in 1894. None of the cases that he prosecuted successfully was reversed on appeal. He continued his private practice as well, forming the partnership of Thurman and McCarty in 1894 with Samuel Thurman, his colleague as assistant district attorney and another future Supreme Court justice Sometime between 1887 and 1896, he also had a brief partnership with future justice E. E. Corfman.
Although the Woodruff Manifesto of 1890 and subsequent presidential pardons for those who obeyed laws against polygamy and unlawful cohabitation eased tensions in Utah, prosecution of those crimes did not cease. In the Second District, prosecutor McCarty enforced the law throughout his tenure, complaining when, in 1893, U.S. AttorneyJohn Judd cut off his accounts for prosecution of polygamists before the United States commissioners.5 Judd told him that investigation before the grand jury was sufficient and the United States could now save the extra expense.
In 1895 the first election for state officers was held, in conjunction with a vote on the state constitution. McCarty ran forjudge of the new Sixth District He defeated E W McDaniel by only three votes Although his vigorous prosecution of polygamists was an issue in the campaign, McCarty claimed his greatest opposition came from the non-Mormon "saloon element," who resented his active prosecution of the vice laws against Sunday business, gambling, and bootlegging. His perceived fairness helped him win this and other elections, but he also attributed his victories to how, in the post-Manifesto climate, changes in political affiliation had not also meant changes in electoral habits. The LDS church's People's party was disbanded in 1891 in favor of national parties, but Mormons, who in some cases were "called" by their leaders tojoin either the Republican or Democratic party and thereby provide an even political division, continued to vote a straight party ticket more regularly than gentiles
After statehood some plural marriages continued to be performed and many other citizens still unlawfully cohabited with their plural spouses, but there was for a time a widespread attitude that cohabitation at least should be overlooked and that enforcement of the state laws against those acts should be curtailed. McCarty, who attributed this attitude to the political parties "coquetting with the church" and "playing for the Mormon vote," declared himself "in favor of enforcing the entire penal code." When he heard rumors that men in his district were violating the law, he first invited the public prosecutor's attention to the problem. When the prosecutor, a nonMormon, at first refused to take action, Judge McCarty called a special grand jury The grand jury returned no indictments for unlawful cohabitation, but a case against five accused polygamists was brought before thejudge in 1899 by the county attorney based on a private citizen's affidavits.
Although eager to enforce the law and defy any atmosphere of complacency, McCarty exercised leniency when the defendants pleaded guilty, sentencing them to fines ranging from $25 to $150 and lecturing them that "those who so persistently insisted that the law ought not to have any moral or legal force because it was not really the will of the people are in error."6 This case became the key issue when McCarty ran for reelection in 1900, but despite running against a Mormon opponent, I.J. Stewart, the judge won handily, receiving the largest vote on the local ticket. A new generation of Mormons, even in the rural communities of central and southern Utah, no longer found polygamy an appealing principle upon which to take a stand, and McCarty's punishment of the crime, tempered with leniency, drew more support than opposition.
He had become a popular figure, widely viewed as a friendly, unpretentious, self-made man of the people. In 1895 he moved down the valley from Monroe to Richfield. The expansive Sixth District, extending from Richfield to Kanab, required longjourneys, which he made in a buggy pulled by a team of sorrel horses named Gladstone and Bismarck, sometimes pushing through hub-deep snow or sand in the high plateau country of southern Utah. He was always ready with a cordial greeting for his many acquaintances, who were likely to respond with the greeting he preferred, "Hello, Billy," rather than "Good morning, Judge." 7 In 1893 he married Lovina L Murray, and they raised three sons and one daughter: Murray W., Roy S., Frank H. E., and Margaret Lovina Murray and Roy would become attorneys
During the 1890s McCarty's involvement with the state Republican party grew By 1900 the party dominated state politics; it would continue to do so until 1916. Despite its dominance, or perhaps because of it, the party was continually splintered by internal factions. Religion had not ceased to be a factor in Utah's political equation, and the division between Mormons and their opponents was one cause of factionalism within the party There were others as well Silver Republicans and McKinley Republicans split in 1896. In 1904 a band of anti-Mormons led by Thomas Kearns and Frank Cannon bolted to form the American party. A mostly Mormon machine led by Senator Reed Smoot and known as the "federal bunch," a name that denoted the employer of many of them, dominated the Republican party Another faction, principally non-Mormons, centered around Senator George Sutherland, a future United States Supreme Court justice, who by 1906 was cooperating closely with the Smoot bunch. Other non-Mormons strongly opposed Smoot and the influence of Mormon president Joseph F. Smith in the party; but they were either not generally anti-Mormon or were too loyal Republicans to join the American party
McCarty was a McKinley Republican, but he campaigned actively for the election of George Sutherland, a former Silver Republican, as a congressman in 1900. In 1902 McCarty's loyalty was rewarded with the party's nomination to the Utah Supreme Court. He then shared his party's ongoing success, beating a popular Spanish-American War hero, Richard W. Young, grandson of Brigham Young, in the election to become the fifth justice to serve on the state's highest court.
McCarty crossed swords with the Smoot Republicans in 1904 by refusing to support the appointment of William Spry, chairman of the Republican State Committee, as clerk of the Utah State Supreme Court. He felt that Spry was too active a politician for such a position. Hiram E. Booth, delegated to persuade him, reportedly threatened McCarty with machine defeat of his nomination for reelection But the jurist did not bend easily. After George Sutherland's election to the U.S. Senate in 1905, McCarty broke with the new senator in early 1906 over federal appointments that would displace old loyal Republicans. As criticism of him began to appear in the Republican press, McCarty suspected there was an active conspiracy against him. In June or July 1906 he was told of a visit by Republican Attorney General M. A. Breeden and U.S. Marshal William Spry to Judge J. A. Howell of Ogden It was alleged the two tried to convince Howell to grant a new trial to an Ogden city councilman convicted of corruption and that, while discussing an appeal to the Utah Supreme Court, Breeden called McCarty and Justice George Bartch "Americans" (adherents of the American party), implying the councilman could not get a fair hearing before the higher court. Within weeks after McCarty learned this and, he claimed, after the Supreme Court had written but not announced its decision against the councilman's appeal, the managing editor of the Salt Lake Tribune, William Nelson, showed McCarty and Bartch an editorial he was holding until the court's decision, which, without mentioning names or places, referred to the attorney general's visit to Ogden. McCarty recalled telling Nelson that editorials had no effect on the courts but that publication might complicate his attempt to find out what had been said about him in Ogden. The editor stated he would publish nothing for the time being. McCarty, in company with Judge Howell, met with Attorney General Breeden in early August to demand an explanation of his implication that political considerations would influence the justice's judicial actions Breeden denied making such a statement After the meeting, McCarty called Nelson and suggested that he get Breeden's side of the story.
Versions of this sequence of events, including the alleged threat by Booth, received headlines in Salt Lake City's too abundant and factional newspapers in early August. The Democrats' Salt Lake Herald and the Americans' Tribune and Salt Lake Telegram focused on the alleged tampering in Ogden, while the Inter-Mountain Republican and the weekly Truth attacked McCarty, claiming he had discussed pending court cases with the Tribune. McCarty, announcing that he would not yield to attempts "to read me out of the Republican party because of my refusal to yield to the dictates of the so-called leaders of the machine," concluded that Sutherland was behind the attacks. In a lengthy and vitriolic open letter to Sutherland published in several of the city papers, McCarty claimed the Smoot and Kearns factions had split Republicans at the expense of those who had "always been true to the party" and appended some of his correspondence with Sutherland regarding federal appointees. Sutherland replied with his own open letter, denying that he was behind an anti-McCarty conspiracy and accusing the judge of "utter unfitness to occupy a judicial office" because of "unseemly political controversy." McCarty's reply accused Sutherland of demanding that judges become active party workers.8
Except for additional editorializing by the papers, the matter ended there. If such a move had been afoot, McCarty was not in fact dropped from the Republican ticket, and in 1908 and 1914 he was reelected to the Supreme Court. But, even for an era of cutthroat politics and yellowjournalism, the public newspaper brawl between ajustice of the Utah Supreme Court and a future justice of the United States Supreme Court did appear unseemly It was, however, a thorough demonstration of the frank outspokenness with which McCarty was often credited, usually by admirers of his honesty.
Another incident came in 1915 during the lengthy conflict over the murder conviction of Industrial Workers of the World labor organizerJoe Hill, a conviction McCarty and the otherjustices affirmed as the Supreme Court and considered again as the Board of Pardons When Woodrow Wilson asked Governor William Spry to reprieve Hill, McCarty publicly called the IWW a "lawless organization" and later said, "President Wilson's conduct. . .will undoubtedly insure him not only the vote but the active support of practically every thug, yeggman and ex-convict in the land."9
Controversies created a public image of the judge that, popular as he was, often overshadowed his conscientious work on the bench, which rarely made the newspapers. He was not known for elegant writing or extensive legal learning. He wrote in plain language that sometimes demonstrated "a seeming inaptness ... to correctly state the propositions involved even to his own satisfaction," but he understood the fundamentals of the law and diligently, unhurriedly (Justice Frick, an advocate of expediting court work, called him "conscientious" but "slow and plodding") sought the place ofjustice in any issue, always confident in his firm sense of right and wrong. 10
Two related decisions represent well his legal contributions—Nash v. Clark (27 Utah Reports 158 [1904]) and Strickley v.Highland BoyGold Mine Co. (28 Utah Reports 215 [1905]), both of which reached the U.S. Supreme Court on appeal Agriculture and mining were the foundations of Utah's economy, and McCarty had been exposed in youth to the needs and difficulties of both industries. In a desert state like Utah, particularly its southern reaches where McCarty was raised, the lack of water placed critical limits on farmers. Mormon farmers are well known for adapting agriculture to an arid environment by means of irrigation, at the time an uncommon practice in American farming. As McCarty put it, "The question of. . . water ... is, and ever since the advent of the early pioneers has been, the most important and vital of all industrial questions with which the people within this arid region have been confronted."
In Nash v. Clark McCarty upheld the right of way of an individual under state statute to convey water to his property by means of an irrigation ditch crossing a neighbor's property. Noting that "what ispublic use can not always be determined by the application of purely legal principles," he extended the concept of public use under eminent domain laws to uses that "promote the public interest, and which use tends to develop the great natural resources of the commonwealth." Reviewing the critical importance of irrigation to the state, he held that if it was not deemed a public use, a few individuals could "place insurmountable barriers in the way of the future welfare and prosperity of the State."
McCarty extended his reasoning to mining in Strickley v. Highland Boy GoldMining. Writing for the majority, he upheld a state law allowing condemnation of a right of way for a mining company's aerial tramway across another party's mining claim. McCarty noted that "what shall be considered a public use often depends somewhat upon the locality, the wants and necessities of the people, the conditions with which they are surrounded, and the nature and character of the natural resources of such locality." And he remarked that "the mining industry of this state is second in importance only to that of irrigation." Mining roads and tramways benefitted thousands working in the industry, contributed to "the general prosperity of the state," and were a public use, even though such uses gave eminent domain rights to private parties: "when the taking is for a use that will promote the public interest, and which tends to develop the great natural resources of the state, such taking is for a public use." / /
The U.S. Supreme Court affirmed both of thesejudgments (198 U.S. Supreme Court Reports 361 [1905] and 200 U.S. Supreme Court Reports 527 [1906]), although it expressed caution about their application outside of "the peculiar local conditions in Utah." In fact it was the recognition of those local conditions and needs that the federal justices most clearly supported in McCarty's decision The opinions were widely cited and quoted thereafter as one definition of the concept of public use as restricted by state and federal constitutional provisions that "private property shall not be taken or damaged for public use without just compensation."11 These decisions demonstrate well the approach tojudicial matters of William McCarty They arose from his devotion to specific circumstances as decisive factors, and they show how his thinking was shaped by not only the particular facts of the cases before him but by what was particular and distinctive about the world in which he had grown to maturity.
William McCarty died December 20, 1918, two years before the end of his third term on the court. At fifty-nine a relatively young man, he had been ill for several weeks with pneumonia At a memorial service inJanuary, Justice Straup remarked,
The ruggedness can be seen in the square-jawed, heavy-browed, mustachioed countenance of his photographs. His occasionally turbulent impatience was demonstrated, sometimes publicly, on numerous occasions, but the contradictory calm of his serenity was undoubtedly known best to his many friends, who remarked on his loyalty, his geniality, and his ability as a delightful conversationalist always ready with a good story.
McCarty had never traveled outside of Utah until the age of fortyfive. Then, a visit to Washington, D.C, deeply impressed him. Thereafter, he took frequent trips with his family. As illustrated here, McCarty's thinking could be affected by direct experience, but clearly his life was rooted in his home state.
Utah on the eve and immediately after statehood must have seemed to many a place and time of new opportunities. Full membership in the nation, rapprochement across religious lines, and new prosperity all seemed at last possible. But the new century brought even more factionalism, revival of national suspicion of Utah and its officials, and economic sluggishness William McCarty could have stood for what was possible The son of an impoverished apostate family, he worked as an itinerant freighter and miner, taught himself the law, and so fully earned the respect of his Mormon neighbors that, despite his avid prosecution of polygamists, he was perennially elected to public office. The support that elected him to the high court seemed to come out of a political center in the Republican party that bridged its divisive factions. From the bench he encouraged the growth of the state's most important industries by espousing the needs of broad public economic interests over narrow private ones.
Once at the pinnacle of his career, though, his actions and the changing world around him dimmed the lustre of his achievements. His continuing involvement in political infighting appeared unseemly for a high court justice Some of his public comments on the nationally watched case ofJoe Hill, thrice before him, seemed prejudicial The increasing sophistication and superior training of his fellow justices made him appear more rustic by comparison And his legal and political thought seem today more attuned to the social and economic values of the late nineteenth century than to those of the Progressive Era during which he served. Even hisjudicial support of public economic interest sustained the legal power of entrenched mining and agricultural concerns at the expense of small operators, when the national trend was to restrict and regulate such power. Ultimately he came to represent more the passing than the emergence of an age.
NOTES
Dr Alley is executive editor of Utah State University Press This article was originally written for a projected but uncompleted and unpublished set of biographies of Utah Supreme Court justices commissioned by the Utah Bar Foundation.
1 I have relied on Martha Cragun Cox, James's cousin and Lydia Margaret's sister, for most of the biographical information on James and Lydia Margaret McCarty "Biographical Record of Martha Cox," typescript copy, Utah State Historical Society, Salt Lake City.
2 "Testimony of William M M'Carty," Proceedings before the Committee on Privilegesand Elections of the United States Senate in the Matter of theProtests against theRight ofHon. Reed Smoot, A Senatorfrom the State of Utah, to Hold His Seat, 3 vols (Washington: Government Printing Office, 1904), 2:896 Hereinafter cited as Proceedings against Smoot.
3 This version is from Noble Warrum, Utah Since Statehood: Historical and Biographical, 4 vols (Chicago and Salt Lake: S.J Clarke Publishing, 1919), 2:76.
4 "In Memoriam," 53 Utah Reports xxi-xxii (1921).
5 McCarty reviewed his attitude toward polygamy, his view of politics in Utah, and his activities as assistant U.S. attorney and as district judge in his January 1905 testimony during the congressional hearings over whether Reed Smoot should be allowed to take his seat as senator from Utah The following account of those years is largely taken from Proceedings against Smoot, 2:878-933.
6 A complete transcript of this trial is in Proceedings against Smoot, 2:898-916.
7 Adapted from the memorial remarks of Henry N Hayes and M M Warner, "In Memoriam," 53 Utah Reports xxiv-xxv (1921).
8 These letters can be found in various newspapers For McCarty's letters, I have relied on Salt Lake Herald, August 12 and August 15, 1906 For Sutherland's letter, Inter-Mountain Republican, August 14, 1906.
9 Quoted in William L. Roper and LeonardJ. Arrington, William Spry: Man ofFirmness, Governorof Utah (Salt Lake City: Utah State Historical Society, 1971), pp 144, 154.
10 "In Memoriam," 53 Utah Reports xviii-xix (1921); Salt Lake Herald, December 20, 1918.
11 Nash v. Clark, 27 Utah Reports 162 (1904) See especially Ferguson v. Illinois Central R. Co., 54 American Law Reports, Annotated 13, 25, and 60 (1928).
12 "In Memoriam," 53 Utah Reports xxii (1921).
