| 5
S.Ct. 747 29 L.Ed. 47 (Cite
as: 114 U.S. 15, 5 S.Ct. 747) Supreme
Court of the United States MURPHY v. RAMSEY
and others PRATT v. SAME RANDALL
and another v. SAME CLAWSON
and another v. SAME BARLOW v. SAME March
23, 1885 Appeals
from the Supreme Court of the Territory of Utah. **748
*In these actions, five in number, Alexander Ramsey, A. S. Paddock, G. L. Godfrey,
A. B. Carleton, and J. R. Pettigrew, defendants in all, were persons who composed
the board appointed under section 9 of the act of congress, approved March 22,
1882, entitled 'An act to amend section fifty- three **749 hundred and
fifty-two of the Revised Statutes of the United States, in reference to bigamy,
and for other purposes.' 22 St. 30. E. D. Hoge, also a defendant in all the cases,
was appointed registration officer for the county of Salt Lake, in the territory
of Utah, by that board, in pursuance of that section of the act. The other defendants,
one of whom is joined in each action, to-wit, Arthur Pratt, John S. Lindsay, Harmel
Pratt, and James T. Little, were respectively deputy registration officers in
designated election precincts in which the plaintiffs in the actions severally
claimed the right to be registered as voters. The object of the actions was to
recover damages, alleged to have arisen by reason of the defendants' wrongfully
and maliciously refusing to permit the plaintiffs, respectively, to be registered
as qualified voters in the territory of Utah, whereby they were deprived of the
right to vote at an election held in that territory on November 7, 1882, for the
election of a delegate to the forty-eighth congress. In
the case in which Jesse J. Murphy is plaintiff below and appellant here, the complaint
is as follows: 'The
plaintiff above named complains of the defendants, and, on information and belief,
alleges that after the twenty-second day of March, 1882, and prior to the first
day of July, 1882, under the provisions of section 9 of an act of the congress
of the United States, approved March 22, 1882, and entitled 'An act to amend section
5352 of the Revised Statutes of the United States, In reference to bigamy, and
for other purposes,' the president of the United States, by and with the consent
of the senate of the United States, duly appointed the defendants, Alexander Ramsey,
A. S. Paddock, G. L. Godfrey, A. B. Carleton, and J. R. Pettigrew, to perform
the duties mentioned in said section to be performed by a board of five persons,
and by virtue of said appointment they became a board of five persons with the
powers named in said section. 'And,
on information and belief, the plaintiff alleges that after such appointment,
and prior to the first day of August, 1882, the last-named five defendants duly
qualified as such appointees, came to Utah and organized as a board, and entered
upon the exercise of the powers and the discharge of the duties granted and imposed
by said section 9 of said act of congress; that after said organization said five
defendants were commonly called 'commissioners,' and are hereinafter referred
to and called the 'board of commissioners;' that said board of commissioners afterwards
ordered, directed, and supervised a registration of the voters of the territory
of Utah, for the general election in said territory, to be held on the seventh
day of November, 1882, for the election of a delegate for said territory to the
forty-eighth congress, and for such other elections as might be held prior to
another registration of voters of said territory, and on or about the tenth day
of August, 1882, the said board of commissioners made and published rules providing
for said registration, for the appointment of registration officers and judges
of election, and the canvass and return of the votes; directed said registration
to be made during the week commencing on the second Monday of September, 1882,
and, among other rules, willfully and maliciously made and published the following:
"RULE
I. "There
shall be appointed one registration officer for each county, and one deputy registration
officer for each precinct thereof. "RULE
II. "Such
registration officer shall, on the second Monday of September next, proceed by
himself and his deputies in the manner following: The registration officer of
each county shall procure from the clerk of the county court the last preceding
registry list on file in his office, and shall, by himself or his **750
deputies, require of each person whose name is on said list, or who applies to
have his name placed on said list, to take and subscribe the following oath or
affirmation:
"Territory
of Utah, County of _____, ss.: I, _____, being first duly sworn, (or affirmed,)
depose and say: That I am over twenty-one years of age, and have resided in the
territory of Utah for six months, and in the precinct of ___ one month immediately
preceding the date hereof, and (if a male) am a native-born or naturalized (as
the case may be) citizen of the United States, and a tax-payer in this territory;
(or if a female) I am native-born, or naturalized, or the wife, widow, or daughter
(as the case may be) of a native- born or naturalized citizen of the United States;
and I do further solemnly swear(or affirm) that I am not a bigamist nor a polygamist;
that I am not a violator of the laws of the United States prohibiting bigamy or
polygamy; that I do not live or cohabit with more than one woman in the marriage
relation, nor does any relation exist between me and any woman which has been
entered into or continued in violation of the said laws of the United States prohibiting
bigamy or polygamy; (and if a woman) that I am not the wife of a polygamist, nor
have I entered into any relation with any man in violation of the laws of the
United States concerning polygamy or bigamy. "Subscribed
and sworn to before me, this __ day of ____, 1881. _________________, "Registration
Officer, _____ Precinct. "And
said registration officer, or his deputies, shall add to said lists the names
of all qualified voters in such precinct whose names are not on the list, upon
their taking and subscribing to the aforesaid oath, and the said registration
officer shall strike from said lists the names of said persons who fail or refuse
to take said oath, or have died or removed from the precinct, or are disqualified
as voters under the act of congress, approved March 22, A. D. 1882, entitled 'An
act to amend section 5352 of the Revised Statutes of the United States, in reference
to bigamy, and for other purposes:' provided, that the action of any registration
officer may be revised and reversed by this commission, upon a proper showing:
and provided, further, that if the registration officer be unable to procure the
registration list from the office of the clerk of the county, or if the same have
been lost or destroyed, the said officer and his deputies shall make a new registry
list in full of all legal voters of each precinct of the county, under the provisions
of these rules.' 'That
said board of commissioners also by rules, provided for the appointment of and
appointed three judges of election for each election precinct in said territory. 'And,
on information and belief, the plaintiff alleges that the defendant E. D. Hoge
was appointed registration officer for the county of Salt Lake, in said territory
of Utah, and the defendant Arthur Pratt was appointed deputy registration officer
for the fourth election precinct of the city of Salt Lake, in said county, and
that each accepted the appointment, duly qualified, and respectively acted throughout
the said registration as such registration and deputy registration officer.
'And
the plaintiff alleges that on the second Monday of September, 1882, the defendant
Arthur Pratt, as deputy registration officer for said fourth precinct, in the
city and county of Salt Lake, aforesaid, acting under the direction of the other
defendants, commenced registering the voters of said precinct and making a registration
list of such voters, and continued daily therein until the evening of Saturday
of the same week, when the registration was closed. 'And
the plaintiff alleges that he is a native citizen of the United States of America,
and prior to the twenty-second day of March, 1882, was more than **751
twenty-one years of age; that he has resided continuously in the territory of
Utah for more than eleven years, and resided continuously in the fourth precinct
of Salt Lake City, in said territory, for more than two years past; that he has,
for more than ten years prior to the November election in 1882, lawfully exercised
the rights and enjoyed the privileges of the elective franchise in said territory,
and has, for more than ten years last past, owned taxable property and been a
tax-payer in said territory, and that his name was on the last registration list
of the voters of the second precinct, Ogden City, Weber county, Utah, made prior
to the second Monday of September, 1882. 'And
the plaintiff alleges that he has not, since more than three years prior to March
22, 1882, married, or entered into any marriage contract or relation with, any
woman, or in anywise violated the act of congress approved July 1, 1862, defining
and providing for the punishment of bigamy in the territories, and has resided
continuously and openly in the counties of Weber and Salt Lake, Utah, for ten
years last past, and has not violated any of the provisions of the act of congress,
approved March 22, 1882, entitled 'An act to amend section 5352 of the Revised
Statutes of the United States, in reference to bigamy, and for other purposes;'
and that he has not, on or since the twenty-second day of March, 1882, cohabited
with more than one woman, and has never been charged with, or accused or convicted
of, bigamy or polygamy, or cohabiting with more than one woman, in any court,
or before any officer or tribunal. 'And
the plaintiff alleges that on the thirteenth day of September, 1882, he personally
went before the defendant Arthur Pratt, then acting as deputy registration officer
in and for the fourth precinct in Salt Lake City, aforesaid, and signed and presented
to said defendant, and offered to verify, and requested the said defendant to
take and certify, plaintiff's oath to the following affidavit, to-wit:
"Territory
of Utah, County of Salt Lake--ss.: I, Jesse J. Murphy, being first duly sworn,
depose and say: I am over twenty-one year of age, and have continuously resided
in the territory of Utah for more than six months, to-wit, for more than eleven
years last past; I have resided in the fourth precinct of Salt Lake City more
than six months next preceding the date hereof, and now reside therein; I am a
male native-born citizen of the United States of America, and property owner and
tax-payer in said territory of Utah. I have, under the laws of the territory of
Utah, exercised the elective franchise in said territory for more than ten years
last past. I have not, within three years prior to the twenty-second day of March,
1882, or since, having a wife living, married another, or another woman; and I
have continuously and openly resided in the counties of Weber and Salt Lake, in
the territory of Utah, for more than three years prior to the twenty-second day
of March, 1882, and I have not, on or since the twenty-second day of March, 1882,
having a wife living, married another, or simultaneously, or on the same day,
married more than one woman, or on or since said last-named date married or entered
into any marriage contract or relation with any woman, or cohabited with more
than one woman, or in anywise violated the act of congress entitled 'An act to
amend section 5352 of the Revised Statutes of the United States, in reference
to bigamy, and for other purposes,' approved March 22, 1882. My name is on the
last registry list of voters of the second precinct, Ogden City, Weber county,
Utah. JESSE
J. MURPHY. "Subscribed
and sworn to before me, this thirteenth day of September, A.D. 1882.' 'And
at the same time the plaintiff requested the said defendant Arthur Pratt to put
plaintiff's name on the registry list of voters of said precinct, and to register
him as a voter therein. That the said defendant Arthur **752 Pratt, acting
under the directions of the other defendants, willfully and maliciously refused
to receive said affidavit or to swear plaintiff thereto, or to register him as
a voter of said precinct, but, on the contrary, willfully and maliciously struck
plaintiff's name off the list of registered voters of said precinct, and left
his name off the list of voters of said precinct, made at said registration. That
afterwards, before the close of said registration, and on the fourteenth day of
September, 1882, the plaintiff presented a duplicate of said last-named affidavit
to the defendant E. D. Hoge, then acting as county registration officer for said
county of Salt Lake, and informed him of the ruling and action as aforesaid of
the defendant Arthur Pratt, and requested the defendant E. D. Hoge to correct
and reverse said ruling, and to instruct the defendant Arthur Pratt to swear plaintiff
to said affidavit and register him as a voter, and the said defendant E. D. Hoge
willfully and maliciously refused to correct or change said ruling and action,
and approved and affirmed the same. That on the sixteenth day of September, 1882,
the plaintiff presented to said board of commissioners a duplicate of said last-named
affidavit, and informed them of the action and ruling of the defendants Arthur
Pratt and E. D. Hoge, and requested said board to reverse and correct said rulings
and action, and to direct that plaintiff's oath to said affidavit be taken, and
that he be registered as a voter of said precinct, and the said board of commissioners
willfully and maliciously refused to correct or change said rulings, and affirmed
and approved the same, and said last-named ruling was made before the close of
the registration in said precinct, and when there was still time for plaintiff
to have registered before the close of the registration.
'And,
on information and belief, the plaintiff alleges that the defendants all knew
that, unless the plaintiff's name appeared on the registration list then being
made of the voters of said precinct, his vote would not be received at the election
to be held November 7, 1882, or at any election until after another registration
of voters. That at an election held throughout the territory of Utah, on the seventh
of November, 1882, for the election of a delegate for the territory of Utah for
the forty-eighth congress, the plaintiff went before the judges of election, in
said fourth precinct of the city of Salt Lake, in the county of Salt Lake, at
the place where the votes in said precinct were being taken, and offered to vote
at said election, and tendered and offered to take the same affidavit, but the
said judges refused to receive his vote, on the ground that he was not registered
as a voter in said precinct. 'And,
on information and belief, the plaintiff alleges that the defendants, and each
of them, intending to wrongfully deprive the plaintiff of the elective franchise
in said territory, willfully and miliciously, by the acts and in the manner aforesaid,
refused the plaintiff registration as a voter, at the said registration commenced
on the second Monday of September, 1882, and deprived the plaintiff of the right
to vote at the election held in said territory on the seventh day of November,
1882, and at all elections under said registration, whereby plaintiff has sustained
damage to the amount of twelve hundred dollars. 'Wherefore,
the plaintiff prays judgment against the defendants for the sum of twelve hundred
dollars and costs of suit.' In
the case in which Mary Ann M. Pratt is plaintiff and appellant the complaint is
similar in all respects, except the allegations as to her qualifications as a
voter, and the contents of the affidavit which she offered to the deputy registration
officer. The averments as to her qualifications are as follows: 'And the plaintiff
alleges that she is a native citizen of the United States of America, and prior
to the twenty-second day of March, 1882, was more than twenty-one years of age;
that she has resided continuously in the territory of Utah for more than thirty
years, and resided continuously in the third precinct of Salt Lake City, in said
territory, for more than two years last past; that she has, for more than five
years prior to the November election in 1882, **753 lawfully exercised
the rights and enjoyed the privileges of the elective franchise in said territory,
and has, for more than five years last past, owned taxable property and been a
tax-payer in said territory; and that her name was on the last registration list
of the voters of the third precinct, made prior to the second Monday of September,
1882. And the plaintiff alleges that she is not, and never has been, a bigamist
or a six years, and has continuously and Orson Pratt, Sr., who died prior to the
twenty- second day of March, 1882, after a continuous residence in said territory
of more than thirty years, and that since the death of her said husband she has
not cohabited with any man.' The affidavit proposed by her contained the same
allegations. Alfred
Randall and Mildred E. Randall, plaintiffs in another action, sue as husband and
wife, in the right of the wife, for injury to her by reason of being deprived
of her right to vote. The averments in the complaint as to her qualifications
are as follows: 'And the plaintiffs allege that the plaintiff Mildred E. Randall
is a native citizen of the United States of America, and, prior to the twenty-second
day of March, 1882, was more than twenty-one years of age; that she has resided
continuously in the territory of Utah for more than twenty years, and resided
continuously in the second precinct of Salt Lake City, in said territory, for
more than two years last past; that she has, for more than ten years prior to
the November election in 1882, lawfully exercised the rights and enjoyed the privileges
of the elective franchise in said territory, and has, for more than five years
last past, owned taxable property and been a taxpayer in said territory; and that
her name was on the last registration list of the voters of the second precinct,
made prior to the second Monday of September, 1882. And the plaintiffs allege
that the plaintiff Mildred E. Randall, for more than three years last past, has
been and is the wife of the plaintiff Alfred Randall, who is, and prior to March
22, 1882, was, a native-born citizen of the United States of America; that she
has not, on or since March 22, 1882, cohabited with any bigamist, polygamist,
or with any man cohabiting with more than one woman; that she is not a bigamist
or polygamist, and never has been a bigamist or polygamist, and has not in any
way violated the act of congress entitled 'An act to amend section 5352 of the
Revised Statutes of the United States in reference to bigamy, and for other purposes,'
approved March 22, 1882.' The affidavit presented by her to the deputy registration
officer, and rejected by him, contained the same allegations. In all other respects,
the complaint is similar to all the others. Hiram
B. Clawson and Ellen C. Clawson also sue as husband and wife, in the wife's right,
and the averments in the complaint as to her qualifications are as follows: 'And
the plaintiffs allege that the plaintiff Ellen C. Clawson is a native citizen
of the United States of America, and prior to the twenty- second day of March,
1882, was more than twenty-one years of age; that she has resided continuously
in the territory of Utah for more than thirty-three years, and resided continuously
in the fifth precinct of Salt Lake City, in said territory, for more than two
years last past; that she has, for more than ten years prior to the November election
in 1882, lawfully exercised the rights and enjoyed the privileges of the elective
franchise in said territory, and has, for more than five years last past, owned
taxable property and been a tax-payer in said territory, and that her name was
on the last registration list of the voters of said fifth precinct, made prior
to the second Monday of September, 1882. And the plaintiffs allege that the plaintiff
Ellen C. Clawson is not and never has been a bigamist or polygamist, and is not
cohabiting and never has cohabited with any man except her husband, the co-plaintiff
herein, to whom she was lawfully married more than fifteen years ago, and of whom
she is the first and lawful wife; that the plaintiff Hiram B. Clawson has not
married or entered into any marriage contract or relation with any woman within
the last six years, and has continuously and openly resided in the city of Salt
Lake, in said territory of Utah, for more **754 than twenty years last
past.' She presented to the deputy to the deputy registration officer an affidavit
setting forth the same facts. In
the case in which James M. Barlow is plaintiff and appellant the averments in
the complaint are altogether like those in the case of Murphy, which has been
set out in full. In each case a demurrer was filed to the complaint by all the
defendants, on the ground that it did not state facts sufficient to constitute
a cause of action. These demurrers were sustained, and, the plaintiffs electing
to abide by their pleadings, judgement was rendered for the defendants, which
are now brought by appeals for reviion to this court. The
act of March 22, 1882, is as follows:
'An act
to amend section fifty-three hundred and fifty-two of the Revised Statutes of
the United States in reference to bigamy, and for other purposes. 'Be
it enacted by the senate and house of representatives of the United States of
America, in congress assembled, that section fifty-three hundred and fifty- two
of the Revised Statutes of the United States be, and the same is hereby, amended,
so as to read as follows, namely:
Every
person who has a husband or wife living, who, in a territory or other palce over
which the United States have exclusive jurisdiction, hereafter marries another,
whether married or single, and any man who hereafter simultaneously, or on the
same day, marries more than one woman, in a territory or other place over which
the United States have exclusive jurisdiction, is guilty of polygamy, and shall
be punished by a fine of not more than five hundred dollars and by imprisonment
for a term of not more than five years; but this section shall not extend to any
person by reason of any former marriage whose husband or wife by such marriage
shall have been absent for five successive years, and is not known to such person
to be living, and is believed by such person to be dead, nor to any person by
reason of any former marriage which shall have been dissolved by a valid decree
of a competent court, nor to any person by reason of any former marriage which
shall have been pronounced void by a valid decree of a competent court on the
ground of nullity of the marriage contract. 'Sec.
2. That the foregoing provisions shall not affect the prosecution or punishment
of any offense already committed against the section amended by the first section
of this act. 'Sec.
3. That if any male person, in a territory or other place over which the United
States have exclusive jurisdiction, hereafter cohabits with more than one woman,
he shall be deemed guilty of a misdemeanor, and on conviction thereof shall be
punished by a fine of not more than three hundred dollars, or by imprisonment
for not more than six months, or by both said punishments, in the discretion of
the court. 'Sec.
4. That counts for any or all of the offense named in sections one and three of
this act may by joined in in the same information or indictment.
'Sec.
5. That in any prosecution for bigamy, polygamy, or unlawful cohabitation, under
any statute of the United States, it shall be sufficient cause of challenge to
any person drawn or summoned as a juryman or talesman-- First, that he
is or has been living in the practice of bigamy, polygamy, or unlawful cohabition
with more than one woman, or that he is or has been guilty of an offense punishable
by either of the foregoing sections,* or by section fifty-three hundred and fifty-two
of the Revised Statutes of the United States, or the act of July first, eighteen
hundred and sixty-two, entitled 'An act to punish and prevent the practice of
polygamy in the territories of the United States and other places, and disapproving
and annulling certain acts of the legislative asembly of the territory of Utah;'
or, second, that he believes it right for a man to have more than one living
and undivorced wife at the same time, or to live in the practice of cohabiting
with more than one woman; and any person appearing or offered as a juror or talesman,
and **755 challenged on either of the foregoing grounds, may be questioned
on his oath as to the existence of any such cause of challenge, and other evidence
may be introduced bearing upon the question raised by such challenge; and this
question shall be tried by the court. But as to the first ground of challenge
before mentioned, the person challenged shall not be bound to answer if he shall
say upon his oath that he declines on the ground that his answer may tend to criminate
himself; and if he shall answer as to said first ground, his answer shall not
be given in evidence in any criminal prosecution against him for any offense named
in sections one or three of this act, but if he declines to answer on any ground
he shall be rejected as incompetent. 'Sec.
6. That the president is hereby authorized to grant amnesty to such classes of
offenders guilty of bigamy, polygamy, or unlawful cohabitation, before the passage
of this act, on such conditions and under such limitations as he shall think proper;
but no such amnesty shall have effect unless the conditions thereof shall be complied
with. 'Sec.
7. That the issue of bigamous or polygamous marriages, known as Mormon marriages,
in cases in which such marriages have been solemnized according to the ceremonies
of the Mormon sect, in any territory of the United States, and such issue shall
have been born before the first day of January, Anno Domini eighteen hundred and
eighty-three, are hereby legitimated. 'Sec.
8. That no polygamist, bigamist, or any person cohabiting with more than one woman,
and no woman cohabiting with any of the persons described as aforesaid in this
section, in any territory or other place over which the United States have exclusive
jurisdiction, shall be entitled to vote at any election held in any such territory
or other place, or be eligible for election or appointment to or to be entitled
to hold any office or place of public trust, honor, or emolument, in, under, or
for any such territory or place, or under the United States.
'Sec.
9. That all the regislation and election offices of every description in the territory
of Utah are hereby declared vacant, and each and every duty relating to the regislation
of voters, the conduct of elections, the receiving or rejection of votes, and
the canvassing and returning of the same, and the issuing of certificates or other
evidence of election in said territory, shall, until other provisions be made
by the legislative assembly of said territory as is hereinafter by this section
provided, be performed under the existing laws of the United States and of said
territory by proper persons, who shall be appointed to execute such offices and
perform such duties by a board of five persons, to be appointed by the president,
by and with the advice and consent of the senate, not more than three of whom
shall be members of one political party, and a majority of whom shall be a quorum.
The members of said board so appointed by the president shall each receive a salary
at the rate of three thousand dollars per annum, and shall continue in office
until the legislative assembly of said territory shall make provision for filling
said offices as herein authorized. The secretary of the territory shall be the
secretary of said board, and keep a journal of its proceedings, and attest the
action of said board under this section. The canvass and return of all the votes
at elections in said territory for members of the legislative assembly thereof
shall also be returned to said board, which shall canvass all such returns and
issue certificates of election to those persons who, being eligible for such election,
shall appear to have been lawfully elected, which certificates shall be the only
evidence of the right of such persons to sit in such assembly: Provided, that
said board of five persons shall not exclude any person otherwise eligible to
vote from the polls on account of any opinion such person may entertain on the
subject of bigamy or polygamy, nor shall they refuse to count any such vote on
account of the opinion of the person casting it on the subject of bigamy or polygamy;
but each house of such assembly, after its organization, shall have power to decide
upon the elections and qualifications of its **756 members; and at or after
the first meeting of said legislative assembly, whose members shall have been
elected and returned according to the provisions of this act, said legislative
assembly may make such laws, conformable to the organic act of said territory
and not inconsistent with other laws of the United States, as it shall deem proper,
concerning the filling of the offices in said territory declared vacant by this
act.' Section
5352 of the Revised Statutes, which the foregoing act amends, reads as follows:
'Every person having a husband or wife living who marries another, whether married
or single, in a territory, or other place over which the United States have exclusive
jurisdiction, is guilty of bigamy, and shall be punished by a fine of not more
than five hundred dollars, and by imprisonment for a term not more than five years;
but this section shall not extend to any person by reason of any former marriage
whose husband or wife by such marriage is absent for five successive years and
is not known to such person to be living, nor to any person by reason of any former
marriage which has been dissolved by decree of a competent court, nor to any person
be reason of any former marriage which has been pronounced void by decree of a
competent court on the ground of unllity of the marriage contract.' At
the time of the passage of the act of March 22, 1882, the qualifications of voters
prescribed by the territorial legislature, whose right to do so was conferred
by the organic act of Utah, were as follows: 'If males, they were required to
be citizens of the United States, over twenty-one years of age, and constant residents
in the territory during the six months next preceding the election, and no person
was to be deemed a resident unless he was a tax-payer in the territory; if females,
they were required to be of the age of twenty-one years, resident in the territory
six months next preceding the election, and born or naturalized in the United
States, or the wife, widow, or daughter of a native-born or naturalized citizen
of the United States.' Act to establish a territorial government for Utah, approved
September 9, 1850, (9 St. 453;) Comp. Laws Utah, 1876, p. 88. At the same time
there was also in force chapter 12 of the Laws of Utah, 1878, providing for the
registration of voters, and to further regulate the manner of conducting elections
in that territory. That act contains the following provisions: 'That the assessors
in their respective counties are hereby constituted the registration officers,
and they are required to appoint a resident deputy in each precinct to assist
in carrying out the provisions of this act, and before the first Monday in June,
1878, in person by deputy, they shall visit every dwelling in each precinct, and
make careful inquiry as to any or all persons entitled to vote, and each assessor
or deputy, in all cases, shall ascertain upon what ground such person claims to
be a voter, and he shall require each person entitled to vote and desiring to
be registered to take and subscribe in substance the following oath or affirmation:
"Territory
of Utah, County _____, ss.: I, _____, being first duly sworn, depose and say
that I am over twenty-one years of age, and have resided in the territory of Utah
for six months, and in the precinct of ___ one month next preceding the date hereof,
and (if a male) am a ('native-born,' or 'naturalized,' as the case may be) citizen
of the United States, and a tax- payer in this territory: (or, if a female,) I
am 'native-born,' or 'naturalized,' or the 'wife,' 'widow,' of 'daughter,' (as
the case may be,) of a native-born or naturalized citizen of the United States. "Subscribed
and sworn to before me this ___ day _____, A. D. 18__.
"________,
Assessor.' 'Upon
the receipt of such affidavit, the assessor, as aforesaid, shall place the name
of such voter upon the register list of the voters of the county. 'Sec.
2. It shall also be the duty of the assessor of each county, in person **757
or by deputy, at the time of making the annual assessment for taxes in each year,
beginning in 1879, to take up the transcript of the next preceding registration
list and proceed to the revision of the same, and for this purpose he shall visit
every dwelling-house in each precinct, and make careful inquiry if any person
whose name is on his list has died, or removed from the precinct, or is otherwise
disqualified as a vote of such precinct; and, if so, to erase the same therefrom;
or whether any qualified voter resides therein whose name is not in his list;
and, if so, to add the same thereto, in the manner as provided in the preceding
section. 'Sec.
3. It shall also be the duty of each assessor, in person or by deputy, during
the week commencing the first Monday in June of each year, at his office, to enter
on his registry list the name of any voter that may have been omitted, on such
voter appearing and complying with the provision of the first section of this
act required of voters for registration purposes. 'Sec.
4. Upon the completion of the list, it shall be the duty of each assessor as aforesaid
to proceed to make out a list in alphabetical order for each precinct, containing
the names of all the registered voters of such precinct, and shall, on or before
the first day of July in each year, deliver all of said lists and affidavits to
the clerk of the county court. 'Sec.
5. The clerk of the county court shall deliver to the assessor the registry lists
whenever necessary for the revision thereof, or adding names thereto, and the
assessor in person or by deputy shall, during the week commencing the second Monday
in September, in the year 1878, and every second year thereafter, enter names
of voters on the registry list in the manner provided in section three of this
act, and, upon the list being completed, proceed as required by section four of
this act: provided, that in such case he shall deliver the list and affidavits
on or before the tenth day of October in such year. 'Sec.
6. Voters removing from one election precinct to an another in the same county
may appear before the assessor at any time previous to the delivery of the registry
list to the clerk of the county court, and have their names erased* therefrom,
and they may thereupon have their names registered in the precinct to which they
may remove. 'Sec.
7. The clerk of the county court shall file and carefully preserve all said affidavits
and registry lists, and shall make a copy of each precinct registry list, and
cause the same to be posted up at least fifteen days before any election, at or
near the place of election, and shall make and transmit another copy to the judges
of election. 'Sec.
8. The clerk of the county court shall cause to be printed or written a notice,
which shall designate the offices to be filled, and stating that the election
will commence at _____, [designating the place for holding the polls,] one hour
after sunrise, and continue until sunset, on the ___ day of _____, 18__, [naming
the day of election.] Dated at _____, A. D. 18__. ________, Clerk of the
County Court. A copy of which shall be posted up at least fifteen days before
the election, in three public places in said precinct best calculated to give
notice to all the voters. It shall also be the duty of the clerk of the county
court to give notice on the lists so posted that the senior justices of the peace
for said precinct will hear objections to the right to vote of any person registered,
until sunset of the fifth day preceding the day of election. Said objections shall
be made by a qualified voter, in writing, and delivered to the said justice, who
shall issue a written notice to the person objected to, stating the place, day,
and hour when the objection will be heard. The person making the objection shall
serve, or caused to be served, said notice upon the person objected to, and shall
also make returns of such service to the justice before whom the objection shall
be heard. Upon the hearing of the case, if said justice shall find that the person
objected to is not a qualified voter, he shall, within three days prior to the
election, transmit a certified **758 list of the names of all such unqualified
persons to the judges of election, and said judges shall strike such names from
the registry list before the opening of the polls. 'Sec.
9. The county court shall, at its first session in June of each year, appoint
three capable and discreet persons in each precinct in the county, one at least
of whom shall be of the political party that was in the minority at the last previous
election, if any such party there be in such precinct, to act as judges of general
and special elections; and they shall designate one of the persons appointed to
preside, and the other two to act as clerks of said elections. And the clerk of
said court shall make out certificates of said appointments, and transmit the
same by mail or other safe conveyance to the persons so appointed, who, previous
to entering upon said office, shall take and subscribe an oath to the effect that
they will well and faithfully perform all the duties thereof to the best of their
ability, and that they will studiously endeavor to prevent any fraud, deceit,
or abuse at any election over which they may preside. If, in any precinct, any
of such judges decline to serve or fail to appear, the voters of said precinct,
first assembled on the day of election, to the number of six, at or immediately
after the time designated for opening the polls, may elect a judge or judges to
fill the vacancy, and the persons so elected shall qualify as hereinbefore provided.' Sections
10 and 11 prescribe how ballot-boxes, keys, etc., shall be procured, and provide
for envelopes and ballots, and for keeping the boxes during the voting and until
the canvass; and section 12 provides how the judges shall keep the lists, etc.
'Sec.
13. Every voter shall designate on a single ballot, written or printed, the name
of the person or persons voted for, with a pertinent designation of the office
to be filled, and when any question is to be decided in the affirmative or negative,
he shall state the proposition at the bottom of the ballot, and write thereunder
yes or no, as he may desire to vote thereon, which ballot shall be neatly folded
and placed in one of the envelopes hereinbefore provided for, and delivered to
the presiding judge of election, who shall, in the presence of the voter, on the
name of the proposed voter being found on the registry list, and on all challenges
to such vote being decided in favor of such voter, deposit it in the ballot-box,
without any mark whatever being placed on such envelope; otherwise the ballot
shall be rejected.' The
remainder of the act relates to the canvass, returns, and certificates of election. West
Headnotes Elections
k54 144k54 The
registration and election officers appointed for territory of Utah pursuant to
act of Congress are required, until other provisions be made by the legislative
assembly of the territory, to perform their duties under the existing laws of
the United States, including the act of March 22, 1882, and of the territory,
so far as not inconsistent therewith. Elections
k54 144k54 The
board of commissioners appointed for the territory of Utah in pursuance of section
9 of the act of congress, approved March 22, 1882, entitled "An act to amend section
5352 of the Revised Statutes of the United States in reference to bigamy, and
for other purposes," 22 Stat. 30, have no power over the registration of voters
or the conduct of elections. Their authority is limited to the appointment of
registration and election officers, to the canvass of the returns made by such
officers of election, and to the issue of certificates of election to the persons
appearing by such canvass to be elected. Elections
k57 144k57 As
the board of commissioners had no lawful power to prescribe conditions of registration
or of voting, any rules of that character promulgated by them to govern the registration
and election officers were null and void; and as such rules could not be pleaded
by the registration officers as lawful commands in justification of refusals to
register persons claiming the right to be registered as voters, their illegality
is no ground of liability against the board of commissioners. Elections
k58 144k58 The
plaintiffs in these actions, seeking to recover damages for being unlawfully deprived
of their right to be registered as voters, must allege in their declarations,
as matter of fact, that they were legally qualified voters, or, that allegation
being omitted, must allege all the facts necessary to show, as matter of law,
that they were qualified voters; and to this end it is necessary that they should
negative all the disqualifications pronounced by the law. Elections
k60 144k60 Elections
k98 144k98 Act
Cong. March 22, 1882, amending Rev.St. § 5352, in reference to bigamy, etc., provides,
by section 8, 48 U.S.C.A. § 1461, that "no polygamist, bigamist, or any person
cohabiting with more than one woman, and no woman cohabiting with any of the persons
described as aforesaid in this section, in any territory, * * * shall be entitled
to vote at any election held in any such territory," etc. Held, that any
person is a bigamist or polygamist, within the meaning of the act, who, at the
time he presents himself for registration as a voter, has a plurality of wives,
though since the passage of the act he may not have cohabited with more than one
of them. Elections
k60 144k60 Act
Cong. March 22, 1882, disqualifying polygamists from voting in the territories
held valid. Elections
k98 144k98 The
registration officers were bound to register only such persons as, being qualified
under the laws previously in force, and offering to take the oath as to such qualifications
prescribed by the territorial act of 1878, were also not disqualified by the eighth
section of the act of congress of March 22, 1882, disqualifying bigamists and
polygamists, and female cohabiting therewith. Elections
k104 144k104 Act
March 22, 1882, § 8, 48 U.S.C.A. § 1461, provides that "no polygamist, bigamist,
or any person cohabiting with more than one woman, and no woman cohabiting with
any of the persons described as aforesaid in this section," shall be entitled
to vote at any election in said territory. Held, that a petition, in an
action for refusal to register plaintiff, which alleges that plaintiff "is not,
and never has been, a bigamist or polygamist"; that she is the widow of a named
person; and that since the death of said person she has not cohabited with any
man,--sufficiently excludes plaintiff from the disqualification of the act. Elections
k104 144k104 So,
also, does a complaint alleging that plaintiff is the wife of a certain man; that
she has not, on or since the date of the passage of the act, cohabited with any
bigamist, polygamist, or with any man cohabiting with more than one woman; and
that she is not and never has been a bigamist or polygamist. Elections
k104 144k104 Act
Cong. March 22, 1882, amending Rev.St.U.S. § 5352, in reference to bigamy, etc.,
provided by section 9, 22 Stat. 32, that all the registration and election officers
of the territory of Utah were vacant, and that the duties relating to the registration
of voters, the conduct of elections, the receiving or rejection of votes, the
canvassing and returning of the same, and the issuance of certificates of election,
should, until other provisions were made by the legislative assembly, be performed
under the existing laws of the United States and the territory by persons appointed
by a board of five persons. The section further provided that said board should
canvass the returns of the votes at elections for the legislature, and issue certificates
of election, and that such board should not exclude any person from the polls
on account of opinions on the subject of bigamy or polygamy. Held, that
such board has no power over the registration of voters, and no authority over
the officers appointed by them to perform the duties in relation thereto; and
that, therefore, a rule promulgated by the board for the government of registration
officers, in pursuance of which such officers refused to register plaintiffs,
did not enable plaintiffs to bring an action for such refusal against the board. Elections
k104 144k104 Where
the complaint in an action against registration officers for refusal to register
plaintiffs as voters alleges that plaintiffs had all the qualifications of voters,
and that the refusal of defendants was wrongful and malicious, a demurrer to the
complaint should be overruled. Constitutional
Law k199 92k199 Act
Cong. March 22, 1882, 22 Stat. 30, 18 U.S.C.A. § 513, disqualifying polygamists
from voting in the territories, is not ex post facto or retrospective, since it
does not prescribe any additional penalty for the offense of polygamy, but merely
makes the continuance of the polygamous relation a disqualification from voting. *35
Wayne Mac Veagh, G. G. Vest, F. S. Richards, and C. W. Bennett, for
appellants. Atty.
Gen. Brewster and Sol. Gen. Phillips, for appellees. Mr.
Justice MATTHEWS, after making the foregoing statement, delivered the opinion
of the court: These
cases, although actions at law, were not tried by jury, and therefore are rightly
brought here by appeal, according to the provision of the act of congress of April
7, 1874, (18 St. pt. 3, p. 27; Supp. Rev. St. 12.) Stringfellow, v.
Cain, 99 U. S. 610; Hecht v. Boughton, 105 U. S. 235; Woolf
v. Hamilton, 108 U. S. 15; S. C. 1 SUP. CT. REP. 139. The
wrong complained of in each case by the respective plaintiffs is 'that the defendants,
and each of them, intending to wrongfully deprive the plaintiff of the elective
franchise in said territory, willfully and maliciously, by the acts and in the
manner aforesaid, refused the plaintiff registration, as a voter, at the said
registration commenced on the second Monday of September, 1882, and deprived the
plaintiff of the right to vote at the election held in said territory on the seventh
day of November, 1882, and at all elections under said registration.' The
acts which, it is alleged, were done by the five defendants, as a board of commissioners
or canvassers, under the law of March 22, 1882, and which contributed to the wrong,
and constituted part of it, are that they prescribed **759 as a condition
of registration an unauthorized oath, set out in the complaint, in a rule promulgated
by them for the government of the registration officers; and that the deputy registration
officer having, in obedience to such rule, 'acting under the directions of the
other defendants,' willfully and maliciously refused to receive the affidavit
tendered by the plaintiff, in lieu of that prescribed by the rule of the board,
and to register the plaintiff; and that the county registration officer, on appeal,
having refused to order otherwise, the board of commissioners also refused to
reverse and correct these rulings, and to direct the registration of the plaintiffs,
respectively, but affirmed and approved the same. But
an examination of the ninth section of the act of March 22, 1882, providing for
the appointment and prescribing the *36 duties and powers of that board,
shows that they have no functions whatever in respect to the registration of voters,
except the appointment of officers in place of those previously authorized, whose
offices are by that section of the law declared to be vacant; and the persons
appointed to succeed them are not subject to the direction and control of the
board, but are required, until other provision be made by the legislative assembly
of the territory, to perform all the duties relating to the registration of voters,
'under the existing laws of the United States and of said territory.' The board
are not authorized to prescribe rules for governing them in the performance of
these duties, much less to prescribe any qualifications for voters as a condition
of registration. The statutory powers of the board are limited to the appointment
of the registration and election officers, authorized to act in the first instance
under the law until provision is made by the territorial legislature for the appointment
of their successors, and to the canvass of the returns and the issue of certificates
of election 'to those persons who, being eligible for such election, shall appear
to have been lawfully elected.' The proviso in the section does, indeed, declare
'that said board of five persons shall not exclude any person otherwise eligible
to vote from the polls on account of any opinion such person may entertain but,
in the absence of any general and express power over the subject of declaring
the qualification of voters, it is not a just inference, from the words of this
proviso, that it was intended to admit by implication the existence of any authority
in the board to exclude from registration, or the right to vote, any person whatever,
or in any manner to define and delcare what the qualifications of a voter shall
be. The prohibition against excluding any person from the polls, for the reason
assigned, must be construed, with the additional injunction, 'nor shall they refuse
to count any such vote on account of the opinion of the person casting it on the
subject of bigamy or polygamy,' to apply to the action of the board in canvassing
the the returns of elections, made to them by the officers holding such elections;
or, if it includes more, it is to be taken as the announcement of a general principle
*37 to govern all officers concerned in the registration of in canvassing
the returns of elections, It
follows that the rules promulgated by the board, prescribing the form of oath
to be exacted of persons offering to register as voters, and which constitute
the directions under which it is alleged the registration officers acted, were
without force, and no effect can be given to them. It cannot be alleged that they
had the effect in law of preventing the registration of the plaintiffs, for the
registration officers were not bound to obey them; and if they did so, they did
it in their own wrong. There was no relation between the board and the officers
appointed by them of principal and agent, so as to make the members of the former
liable for what the latter may have illegally done under their instructions, and
therefore no connection in law between the acts of the board as charged and the
wrongs complained of. The judgment in fovor of the defendants, composing the board
of commissioners, upon their demurrer, therefore, was rightly rendered.
**760 The cases, as the other defendants, the registration officers, stand
on different principles. If they were merely ministerial officers, and if they
have deprived the respective plaintiffs of their right to be registered as voters,
in violation of law, they may be responsible in an action for damages. Whether
they are so must depend, in the first instance, not upon what they have done or
omitted, but upon the question whether the plaintiffs have severally shown themselves
entitled to the right of which, it is alleged, they were illegally deprived. And
in entering upon the consideration of this point it is to be observed, in the
first place, that the pleader has not in any of the complaints alleged, as matter
of fact, that the plaintiff was a legally qualified voter, entitled to be registered
as such. He has preferred, in each case, with variations to suit the circumstances,
to aver the existence of specific enumerated qualifications, and the absence of
specific and enumerated disqualifications, leaving it to be inferred, as a matter
of law, that the plaintiff was a legally qualified voter and entitled to be registered
as such. That legal inference is necessary to complete *38 the case as
stated; and the sufficiency of the statement must depend on whether all the positive
qualifications required by law are alleged to have existed, and all the disqualifications
affixed by law have been negatived. To ascertain this we have to compare the allegations
of the complaint in each case with the requisitions of the law, and, by construction,
to determine whether they conform. So far as the requirements of the law existing
at the time of the passage of the act of March 22, 1882, and which continued in
force concurrently with that, are concerned, there is no difficulty. Each of the
plaintiffs is shown to have been a qualified voter, unless disqualified by the
latter act. The only question is whether they have brought themselves within the
meaning of that act. The language on which the questions arise occurs in the eighth
section, and is: 'That no polygamist, bigamist, or any person cohabiting with
more than one woman, and no woman cohabiting with any of the persons described
as aforesaid in this section,' etc.,--that is, with any polygamist, bigamist,
or person cohabiting with more than one woman,--shall be entitled to vote at any
election held in the territory. In
the case in which Mary Ann M. Pratt is plaintiff, she clearly excludes herself
from the disqualifications of the act. She alleges in her complaint 'that she
is not, and never has been, a bigamist or a polygamist; that she is the widow
of Orson Pratt, Sr., who died prior to the twenty-second day of March, 1882, after
a continuous residence in said territory of more than thirty years, and that since
the death of her said husband she has not cohabited with any man.' The same is
true in reference to the allegations of the complaint in the case in which Mildred
E. Randall and her husband are plaintiffs. They are, 'that the plaintiff Mildred
E. Randall, for more than three years last past, has been and is the wife of the
plaintiff Alfred Randall, who is, and prior to March 22, 1882, was, a native-born
citizen of the United States of America; that she has not, on or since March 22,
1882, cohabited with any bigamist, polygamist, or with any man cohabiting with
more than one woman; that she is not a bigamist or polygamist, and never has been
a bigamist or polygamist, *39 and has not in any way violated the act of
congress entitled 'An act to amend section 5352 of the Revised Statutes of the
United States in reference to bigamy, and for other purposes,' approved March
22, 1882.' The requirements of the eighth section of the act, in reference to
a woman claiming the right to vote, are that she does not, at the time she offers
to register, cohabit with a polygamist, bigamist, or person cohabiting with more
than one woman; and it is sufficient if the complaint denies the disqualification
in the language of the act. These requirements are fully met in the two cases
just refered to. The
case of Ellen C. Clawson is different. In the complaint, filed by herself and
her husband, it is alleged that she 'is not, and never has been, a bigamist or
polygamist, and is not cohabiting, and never has cohabited, with **761
any man except her husband, the co-plaintiff herein, to whom she was lawfully
married more than fifteen years ago, and of whom she is the first and lawful wife;
that the plaintiff Hiram B. Clawson has not married, or entered into any marriage
contract or relation with any woman within the last six years, and has continuously
and openly resided in the city of Salt Lake, in said territory of Utah, for more
than twenty years last past.' It is quite consistent with these statements that
the husband of the female plaintiff was, at the time she claimed registration,
a bigamist or a polygamist, or that he was then cohabiting with more than one
woman; and that she was cohabiting with him at the same time. She would be, on
either supposition, expressly disqualified from voting by the eighth section of
the act of March 22, 1882, and she does not negative the fact. It cannot, therefore,
be inferred that she was a lawfully qualified voter. The
cases of Murphy and Barlow are alike in substance. In Murphy's case the allegations
are 'that he has not, since more than three years prior to March 22, 1882, married
or entered into any marriage contract or relation with any woman, or in anywise
violated the act of congress, approved July 1, 1862, defining and providing for
the punishment of bigamy in the territories, * * * and has not violated any of
the provisions *40 of the act of congress, approved March 22, 1882, etc.,
* * * and that he has not, on or since the twenty-second day of March, 1882, cohabited
with more than one woman, and has never been charged with or accused or convicted
of bigamy or polygamy, or cohabiting with more than one woman, in any court or
before any officer or tribunal.' In Barlow's case, the statement on one point
is stronger. It is 'that he has not, on or since the first day of July, 1862,
married or entered into any marriage contract or relation with any woman, or in
anywise violate the act of congress, approved July 1, 1862, defining and providing
for the punishment of bigamy in the territories.' That is to say, that, although
he may have married a second wife, it was before any law existed in the territory
prohibiting it, and therefore it could not have been a criminal offense when committed. But
in both cases the complaints omit the allegation, that, at the time the plaintiffs
respectively claimed to be registered as voters, they were not each either a bigamist
or a polygamist. It is admitted that the use of these very terms in the complaint
is not necessary, if the disqualifications lawfully implied by them are otherwise
substantially denied. That such is their case is maintained by the appellants.
The words 'bigamist' and 'polygamist' evidently are not used in this statute in
the sense of describing those who entertain the opinion that bigamy and polygamy
ought to be tolerated as a practice, not inconsistent with the good order of society,
the welfare of the race, and a true code of morality, if such there be; because,
in the proviso in the ninth section of the act, it is expressly declared that
no person shall be excluded from the polls, or be denied his vote, on account
of any opinion on the subject. It is argued that they cannot be understood as
meaning those who, prior to the passage of the act of March 22, 1882, had contracted
a bigamous or polygamous marriage, either in violation of an existing law, such
as that of July 1, 1862, or before the enactment of any law forbidding it; for
to do so would give to the statute a retrospective effect, and by thus depriving
citizens of civil rights merely on account of past *41 offenses, or on
account of acts which, when committed, were not offenses, would make it an
ex post facto law, and therefore void. And the conclusion is declared to be
necessary, that the words polygamist and bigamist, as used in the eighth section
of the act, can mean only such persons as, having violated the first section of
the act, are guilty of polygamy; that is, 'every person who has a husband or wife
living, who, in a territory or other place over which the United States have exclusive
jurisdiction, hereafter marries another, whether married or single, and any man
who hereafter simultaneously or on the same day marries more than one **762
woman, in a territory or other place over which the United States have exclusive
jurisdiction.' But
there is another meaning which may be given to these words, which, we think, is
the one intended by congress. In our opinion, any man is a polygamist or bigamist,
in the sense of this section of the act, who, having previously married one wife,
still living, and having another at the time when he presents himself to claim
registration as a voter, still maintains that relation to a plurality of wives,
although from the date of the passage of the act of March 22, 1882, until the
day he offers to register and to vote, he may not in fact have cohabited with
more than one woman. Without regard to the question whether at the time he entered
into such a relation it was a prohibited and punishable offense, or whether by
reason of lapse of time since its commission a prosecution for it may not be barred,
if he still maintains the relation he is a bigamist or polygamist, because that
is the status which the fixed habit and practice of his living has established.
He has a plurality of wives, more than one woman whom he recognizes as a wife,
of whose children he is the acknowledged father, and whom with their children
he maintains as a family, of which he is the head. And this status as to
several wives may well continue to exist, as a practical relation, although for
a period he may not in fact cohabit with more than one; for that is quite consistent
with the constant recognition of the same relation to many, accompanied with a
possible intention to renew cohabitation with one or more of the others when it
may be convenient. *42
It is not, therefore, because the person has committed the offense of bigamy or
polygamy, at some previous time, in violation of some existing statute, and as
an additional punishment for its commission, that he is disfranchised by the act
of congress of March 22, 1882; nor because he is guilty of the offense, as defined
and punished by the terms of that act; but because, having at some time entered
into a bigamous or polygamous relation, by a marriage with a second or third wife,
while the first was living, he still maintains it, and has not dissolved it, although
for the time being he restricts actual cohabitation to but one. He might in fact
abstain from actual cohabitation with all, and be still as much as ever a bigamist
or a polygamist. He can only cease to be such when he has finally and fully dissolved
in some effective manner, which we are not called on here to point out, the very
relation of husband to several wives, which constitutes the forbidden status
he has previously assumed. Cohabitation is but one of many incidents to the marriage
relation. It is not essential to it. One man, where such a system has been tolerated
and practiced, may have several establishments, each of which may be the home
of a separate family, none of which he himself may dwell in or even visit. The
statute makes an express distinction between bigamists and polygamists on the
one hand, and those who cohabit with more than one woman on the other; whereas,
if cohabitation with several wives was essential to the description of those who
are bigamists or polygamists, those words in the statute would be superfluous
and unnecessary. It follows, therefore, that any person having several wives is
a bigamist or polygamist in the sense of the act of March 22, 1882, although since
the date of its passage he may not have cohabited with more than one of them. Upon
this construction the statute is not open to the objection that it is an ex
post facto law. It does not seek in this section and by the penalty of disfranchisement
to operate as a punishment upon any offense at all. The crime of bigamy or polygamy
consists in entering into a bigamous or polygamous marriage, and is complete when
the relation begins. That of actual cohabitation with more than one woman is defined
and *43 the punishment prescribed in the third section. The disfranchisement
operates upon the existing state and condition of the person, and not upon a past
offense. It is, therefore, not retrospective. He alone is deprived of his vote
who, when he **763 offers to register, is then in the state and condition
of a bigamist or a polygamist, or is then actually cohabiting with more than one
woman. Disfranchisement is not prescribed as a penalty for being guilty of the
crime and offense of bigamy or polygamy; for, as has been said, that offense consists
in the fact of unlawful marriage, and a prosecution against the offender is barred
by the lapse of three years, by section 1044 of the Revised Statutes. continuing
to live in that state afterwards is not an offense, although co- habitation with
more than one woman is. But as one may be living in a bigamous or polygamous state
without cohabitation with more than one woman, he is in that sense a bigamist
or a polygamist, and yet guilty of no criminal offense. So that, in respect to
those disqualifications of a voter under the act of March 22, 1882, the objection
is not well taken that represents the inquiry into the fact by the officers of
registration as an unlawful mode of prosecution for crime. In respect to the fact
of actual cohabitation with more than one woman the objection is equally groundless,
for the inquiry into the fact, so far as the registration officers are authorized
to make it, or the judges of election, on challenge of the right of the voter
if registered, are required to determine it, is not in view of its character as
a crime, nor for the purpose of punishment, but for the sole purpose of determining,
as in case of every other condition attached to the right of suffrage, the qualification
of one who alleges his right to vote. It is precisely similar to an inquiry into
the fact of nativity, of age, or of any other status made necessary by
law as a condition of the elective franchise. It would be quite competent for
the sovereign power to declare that no one but a married person shall be entitled
to vote; and in that event the election officers would be authorized to determine
for that occasion, in case of question in any instance, upon the fact of marriage
as a continuing status. There is no greater objection, in point of law,
to a similar inquiry for the like purpose into the fact of a subsisting *44
and continuing bigamous or polygamous relation, when it is made, as by the statute
under consideration, a disqualification to vote. The
counsel for the appellants in argument seem to question the constitutional power
of congress to pass the act of March 22, 1882, so far as it abridges the rights
of electors in the territory under previous laws. But that question is, we think,
no longer open to discussion. It has passed beyond the stage of controversy into
final judgment. The people of the United States, as sovereign owners of the national
territories, have supreme power over them and their inhabitants. In the exercise
of this sovereign dominion they are represented by the government of the United
States, to whom all the powers of government over that subject have been delegated,
subject only to such restrictions as are expressed in the constitution, or are
necessarily implied in its terms, or in the purposes and objects of the power
itself; for it may well be admitted in respect to this, as to every power of society
over its members, that it is not absolute and unlimited. But in ordaining government
for the territories, and the people who inhabit them, all the discretion which
belongs to legislative power is vested in congress; and that extends, beyond all
controversy, to determining by law, from time to time, the form of the local government
in a particular territory, and the qualification of those who shall administer
it. It rests with congress to say whether, in a given case, any of the people
resident in the territory shall participate in the election of its officers or
the making of its laws; and it may, therefore, take from them any right of suffrage
it may previously have conferred, or at any time modify or abridge it, as it may
deem expedient. The right of local self-government, as known to our system as
a constitutional franchise, belongs, under the constitution, to the states and
to the people thereof, by whom that constitution was ordained, and to whom, by
its terms, all power, not conferred by it upon the government of the United States,
was expressly reserved. The personal and civil rights of the inhabitants of the
territories are secured **764 to them, as to other citizens, by the principles
of constitutional liberty, which restrain all the agencies of government, *45
state and national; their political rights are franchises which they hold as privileges
in the legislative discretion of the congress of the United States. This doctrine
was fully and forcibly declared by the chief justice, delivering the opinion of
the court in National Bank v. County of Yankton, 101 U. S. 129.
See, also, American Ins. Co. v. Canter, 1 Pet. 511; U. S.
v. Gratiot, 14 Pet. 526; Cross v. Harrison, 16 How. 164;
Dred Scott v. Sandford, 19 How. 393. If we concede that this discretion
in congress is limited by the obvious purposes for which it was conferred, and
that those purposes are satisfied by measures which prepare the people of the
territories to become states in the Union, still the conclusion cannot be avoided
that the act of congress here in question is clearly within that justification.
For, certainly, no legislation can be supposed more wholesome and necessary in
the founding of a free, self-governing commonwealth, fit to take rank as one of
the co-ordinate states of the Union, than that which seeks to establish it on
the basis of the idea of the family, as consisting in and springing from the union
for life of one man and one woman in the holy estate of matrimony; the sure foundation
of all that is stable and noble in our civilization; the best guaranty of that
reverent morality which is the source of all beneficent progress in social and
political improvement. And to this end no means are more directly and immediately
suitable than those provided by this act, which endeavors to withdraw all political
influence from those who are practically hostile to its attainment. It
remains to be considered whether, in the two cases in which Mary Ann M. Pratt
and Mildred E. Randall and husband are respectively the plaintiffs, and in which
the plaintiffs have shown a title to vote, the defendants, who were registration
officers, are sufficiently charged with a legal liability. As we have pointed
out, they were bound, by virtue of their appointment under the ninth section of
the act of March 22, 1882, to perform their duties under the existing laws of
the United States and of the territory. The law of the territory then in force,
being 'An act providing for the registration of voters, and to further regulate
the manner of conducting elections *46 in this territory,' approved February
22, 1878, made it the duty of the registration officers and their deputies 'to
make careful inquiry as to any or all persons entitled to vote,' and ascertain
in all cases upon what ground the person claims to be a voter; and it is provided
that 'he shall require each person entitled to vote and desiring to be registered
to take and subscribe in substance the following oath,' etc. The form of the oath
is then set out, containing a statement of all the particulars which, according
to the laws then in force, were necessary to show the qualifications of a voter.
It was then provided that, upon the receipt of such affidavit, the officer 'shall
place the name of such voter upon the register list of the voters of the county.' The
act of March 22, 1882, created the additional disqualifications which have been
mentioned, and which, of course, are not met by the oath as prescribed by the
territorial act of 1878, and it is not consistent with the express provisions
of the act of congress that every person willing to take the oath in the form
prescribed by the territorial act shall be permitted to register as a voter. Either
the oath itself must be regarded merely as a model, to be modified by the operation
of the act of congress, so as to meet by appropriate denials the several new disqualifications
created by it, and then to be taken with the prescribed effect of entitling the
person subscribing it to register as a voter without other proof; or else the
effect of the act of congress is to limit the class entitled to take the oath
in the form prescribed by the territorial act, with the effect thereby given to
it, to those who are not subject to the disqualifications which the act of congress
imposes. The existing laws of the United States and of the territory, under which
the election officers are bound to perform their duties, must include the act
itself, which provides for their **765 appointment and defines their duties,
and if they have not the right to exact on oath different from that, the form
of which is given in the territorial act, they must otherwise satisfy themselves
that persons offering to register are free from the disqualifications defined
in the act of congress. In doing so, they are of course required to exercise diligence
and good faith in their inquiries, *47 and are responsible in damages for
rejections made without reasonable cause, or maliciously. In
the two cases last referred to, the allegations of the complaint show, not only
that the several plaintiffs were legally entitled to be registered as voters,
but declare that the refusal of the registration officers to admit them to the
list was wrongful and malicious. The demurrers admit the plaintiffs' case, as
thus stated, and therefore ought to have been overruled. It follows that the judgments
in the three cases in which Jessie J. Murphy, Ellen C. Clawson, and Hiram B. Clawson,
her husband, and James M. Barlow are the respective plaintiffs, are affirmed as
to all the defendants; in the two cases in which Mary Ann M. Pratt and Mildred
E. Randall, and Alfred Randall, her husband, are the plaintiffs, respectively,
the judgments in favor of the five defendants, Alexander Ramsey, A. S. Paddock,
G. L. Godfrey, A. B. Carleton, and J. R. Pettigrew are affirmed; and as to the
defendants, E. D. Hoge, John S. Lindsay, and Harmel Pratt, the judgments are reversed,
and as to them the cases are remanded, with instructions to overrule the demurrers,
and for further proceedings. And it is so ordered. Copr.
© West 2002 No Claim to Orig. U.S. Govt. Works Reprinted from Westlaw with permission of Thomson/West. If you wish to check the currency of this case, you may do so using KeyCite on Westlaw by visiting http://www.westlaw.com/. |
