Show J L lHE70PINI N Texto1th t S111ll1e COll1It o t iji61c uN pi iE COIllSSIr C I SUITS A t t I t f t r J The Marriage Relation Ottlk I iiockechCoIdt < TKEIREGISTERS LIABLE For Their Acts Who ifay Ecgister r < c and i Wild May Not L c9rc 1 1 rl OCTOJJEU TEU3I 18S4 AppealsJfromrthe Supreme Gotirtfbf the I t TcrfltorY9fTJtah Jesse J Murphy Appellant No 1027 vs Alexander Ramsey A S Paddock G L Godfrey L B CarletonJ RPet tigrew E D Hoge and Arthur Pratt Mary Ann M Pratt Appellant No 1028 vs Alexander Ramsey A S Paddock G LJGodfrey B CarletonJ RPet tigrew E DHogeandJohuSLlnd say U Mildred E Randall and Alfred Randall Appellants No 1029 vs Alexander JKamsey A S laddock G L Godfrey A 13 Carleton J R Pet tigrcw E D loge and Harmel Pratt Ellen C Clawson and Hiram B Claw I son Appellants No 1030 vs I Alexander Ramsey A S Paddock G I L Godfrey A B Carleton rPet I tigrew E D Hoge and James T Lfttle I James M Barlow Appellant No 1031 vs Alexander Ramsey A S Paddock G L Godfrey A B Carleton J 1 Pet tigrew En loge HarmelPratt 1 The Hoard of Commissioners appointed for the Territory of Utah in pursuance of sec 9 I of the act of Congress approved March i > d 3SS2 entitled An act to amend sec 5J52of tho Revised Statutes of the United Unit-ed States reference to bigamy and for otherpurposes 2i Stats 30 have no power pow-er over the registration of voters or tho conduct con-duct of elections Their authority is limited to the appointment of registration and election elec-tion officers to the canvass of tho returns jnadc by snch officers of election and to the lg issue of certificates election to tho perSons per-sons appearing by such canvass to be elected 2 The registration and election officers thus appointed arc required until other provisions be made by the Legislative Assembly As-sembly the Territory to perform their duties under the existing laws of the United States including the act of March 2d 1SS2 and of the Territory so far as not inconsistent inconsist-ent therewith 3 As the Board of Commissioners had no lawful power to prescribe conditions of rag istration or of voting any nileSof that character char-acter promulgated by them to govern the registration and election officers were null and void and as such rules could not bo pleaded by the registration officers as lawful f rne jf1 Fcf ful commands injuatillcatiou i of refusals to register persons claiming tho right to be registered as voters their illegality is no ground of liability against the Board of Commissioners 4 The registration officers were bound to registeronly such persons as being qualified quali-fied under the laws previously in force and offering to take the oath as to such qualifications qualifi-cations prescribed by the territorial act of 1878 were also not disqualified by the eighth section of the act of Congress of March iJd 1882 5 That section provides as to males that no polygamist bigamist or any person cohabiting co-habiting with more than woman and as to females that no woman cohabiting with polygamist bigamist or man cohabiting I with more than one woman shall bo entitled to vote consequently no such person is I entitled to be registered as a voter and the i registration officer must either require such disqualifications to bo negatived by a modification modi-fication of the oath the form of which is given in the territorial act or otherwise to satisfy himself by duelnquiry that such disqualifications dis-qualifications do not exist but which i course he is bound to adopt it is not necessary in these cases to decide 6 The plaintiffs in these actions seeking to recover damages for being unlawfully deprived de-prived of thoir right to bo registered as voters must allege jn their declarations as matter of fact that they were legally qualified quali-fied voters or that allegation being omit ted must allego all tho facts necessary to show as matter of law that they wore qualified voters and to this end it is necessary that they should negative all the disqualifications pronounced by tue law 7 A bigamist or polygamist in the sense of tho eighth section of the act of March Ji 1832 is 1 man who having contracted n bigamous or polygamous marriage and become be-come the husband at one time of two or more wives maintains that relation and status at the time when he offers to be registered re-gistered as 1 iotcrand this without reference ref-erence to tho question whether he was at any time guilty of the offense of bigamy or polygamy or whether any prosecution for such offense was barred by tho lapse of time neither i s it necessary that ho should be guilty of polygamynnder the first section I of the act Of March r 22d 1882 1ho eighth section of thejict is not intended and docs I not operate as an additional pcualtlJrc t scribed for the punishm of the offence of polygamy but merely defined it as a disqualification I dis-qualification of a voter I is not therefore objectionable as an ex post facto law and ha no retrospective operation The dis frnncliisemfcut operates upon the existing I stato and condition or the person and not upon a past offenceS offence-S It was accordingly Held 1 That as to the five defendants below I composing tho Board of Commissioners under the ninth section of the act of March 22d1 the demurrer were rightly sustained sus-tained and the judgments arc affirmed 2 That In the case in which Jesse JMur phy and James M Darlow respectively Ih r pcclvcl were plaintiffs they do not allege that they were not polygdmiats or bigamists at the time they offered t < register although they denv that they were at that time liable to I criminal prosecution for polygamy or bigamy and deny that thoy wcro cohabiting with more than one woman and not show ing themselves to be legally qualified voters defendants the judgments is affirmed on tho demurer I to all the 3 That in the case In which Ellen C Clnwson with her husband is plaintiff Wltl Iaintlf as the declaration docs not deny the disqualification dis-qualification of one who Is at the time c r habiting with i a polygamIst or bigamist the fl LIs judcmunt us to all the defendants is affirmed 4 That in the cases in which Mary Ann 31 Pratt and Mildred E Randall with her husband arc the respective plsintiffrf as ali tho disqualifications arc denied audit is alleged that tho defendants the registnu tion officers wilfully l d3t maliciously re1 fued to register them as voters the Judg I I I nients 85 to HOST and Ucdsaviaone and as to loge and Harmel l alt in thc other lm t JB Are reel d and the iMutes rcmanged J Tor further pi cewJjngs I r 1 I I Jt1 f vi i i J t i i rM In these actions five fn number 1 Alexander RsmseyrAS Paddock Gv L Godfrey A B Carleton agd JI Pettigrew defendants mall ivereper soils who composed the board appointed ap-pointed under section 9 of the act of Congress approved March 221882 entitled en-titled fAn act Jbo amend section fifty of the Revised three hundred aud fiftytwo vised Statutes of the united States in reference t bigamy and for other purposes 22 Stats 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 Utab by thatboardin pursuance of that section of the act The other defendants de-fendants one of whom is joined in each action to wit Arthur Pratt John S Lindsay Harmel Pratt and James T Little were respectively deputy dep-uty registration officers in designated election precincts in which the plaintiffs plain-tiffs jn the actions severally claimed tifs jight jftb be registered asivoters ThcTobject of the actions < was to1 recover re-cover 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 t vote at an election held in that Territory on November 7th 18S2 for the election oLji Delegate to the Fortyeighth Congress t In the case which Jesse J Murphy is plaintiff below and appellant here the complaint is as folio ws The plaintiff above named complains com-plains of the defendants and on information in-formation and belief alleges that after af-ter the 22d day of March 1882 and I prior to the first day of July 18S2 under un-der the provisions of scttpn f of an act ot the Congress of the linked States approved March 22d 1882 and I entitled An act to amend section 3352 of the Revised Statutes of the United I States in reference to bigamy and for other purposes the President of the United States by and with the consent con-sent of the Senate of the United States duly appointed the defendants Alexander Alexan-der Ramsey A S Paddock G L Godfrey AB Carleton and JRPetti grew to perform the duties mentioned in said section to be performed by aboard a-board of five persons and by virtue of said appointment they became a board of five Iler ons with the powers named in said section 1 And on information and belief the plaintiff alleges that after such plaintf alege1 afer appointment ap-pointment and prior to the first day of August 1SS2 the last named five defendants de-fendants duly qualified as such appointees ap-pointees came to Utah land organized as a board and entered upon the exercise ex-ercise of the powers and the discharge e 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 lic Board of Commissioners That said Board of Commissioners afterward ordered directed and super vised registration of the voters of the Tenitory of Utah for the general election elec-tion in said Territory to be held on the seventh day of November 1882 for the election of a Delegate for said Territory to the Fortyeighth Congress and for such other elections as might be held prior to another registration of voters of said Territory and on or about the 10th day of August 18S2the 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 di-rected said registration to be made during the week commencing on the second Monday of September 1882 I and among other rules wilfully and maliciously made and published the i following 1 Rule 1 There shall be appointed one registration I regis-tration officer for each county and one deputy registration officer for each precinct thereof I Rule II I Such registration officer shall on the second Monday of September next proceed by himself and his deputies in the manner following The registration registra-tion officer of each county shall procure pro-cure fromathc clerk of the county court the last preceding registry list on file in his office and s a1 by himself or his deputies require of each person whose name is on said list or who applies ap-plies to have his name placed on said list to take and subscribe thaf ollowing oath or affirmation TEHRITOKY OK UTAH i t County I being first duly sYprn or affirmed depose and say That I am over twentyone years of < agc and have resided In thoSTerritory of J Utah for sue months and I the precinct of one month immediately preceding the date hereof and if a male am a native born ot naturalized aa the case may be citizen of the United States and a taxpayer in this Territoryor a female I am native born or naturalized or the wife widow or daughter daugh-ter as the case may be of a native born or naturalized citizen of the United States and 1 do further solemnly swCar Cor affirm that I am not bigamist noxanolygamlst7 that I kgHgi r am not a violator of f law gF the United States prohibiting bigamy or polygamy that I do not live or bf with more tone t-one woman in the marriage relation nor docs any relation exist between me and any Svoniau whichhas been entered into or con tinned in violationofthesaHl laws of the United States prohibiting bigamy or polygamy and if woman that 1 gamy aoman am not the wife of 1 polygamist nor have I entered into any relation with any man in violation of the haws of the United States conccrnins polygamy or bigamy 4bub cribed and sworn to before me this day of 1831 I itegistration Ojjlcer Pnclnci G j And said registration officer or his deputies shall add t sid lists ttie names of all qualified voters in such precinct whose names are not on the list upon their taking and subscribing t the aforesaid oathiand the said reg istration officer shalTstrike from eald lists the names of said14 persons who fail or refuse t take said oath or have died or removed tom the precinct rare r-are disqualified as voters under the act of Congress approved March 22 A D 1882 entitled An act to amend section 5352 of tho Revised Statutes scctou United States In reference to bigamy blsm and for other purposes Provided That the action of any registration officer may be revised and reversed bv this commission J upon u proper showing show-ing And prodded further That I the registration officer be unable to procure the registration list from the office of I the clerk of the county or if the same have been lost or destroyed the said i t Officer and his deputies shall make anew a-new registry list I full of all legal j voters of each precinct of the county < I i under provisions of these rules i I That said Board of Commissioners also by rules provided fur the appoint I I ment of and appointed theo judges of election for each election precinct in said Territory I And on Information and belief the plaintiff alleges that the defendant K j I I D loge was appointed registration i officer forthe county of Sat Lake in aid Territory of Utah and the defend I 5gJ5s1 ant Arthur Pratt1was appolnted + deputy reglsTfaCion officer for Wer fourth election precinct of the city of Salt Lake in said county and that each accepted the appointment duly qualified and respective acted throughout the said registration as Such registration and deputy registration registra-tion officer r i SAndjjthe IplaintifE alleges that on theseccmd aiondayof September 1882 the defendant Arthur Pratt as deputy registration officer for said fourth precinct pre-cinct in the city and county of Salt Lake aforesaid acting under the directon of the other defendantscom menced 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 registra tion was closed And the plaintiff alleges that he is a Lnatiye citizqnjjf the United StatesBof < America Wand prior to the2d dayof March 182r was more than twentyone ty years of age that he has resided continuously con-tinuously in the Territory of Utah for more than eleven years and resided continuously in the fourth precinct of Salt Lake City in I said Territory for more than two years past that he has for more than ten years prior to the November election in 1882 lawfully exercise ex-ercise the rights and enjoyed to privileges ot the elective franchise in saidTerritoryand hasfor more than ten years last pastowned taxable property and been a taxpayer in said Territory and that his name was on the last registration list ot the voters of the second precinct Ogden City Weber County Utah madepriorto the second I Monday of September 1882 v And the plalntjff alleges thathelias thltMas rot since more than three years prior to Starch 22d 1SS2 married or tntered into any marriage contract or relation with any woman or in anywise violated the act of Congress approved July 1st 1SC2 defining and providing for the punishment of bigamy In the Territories > Terri-tories 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 ap-proved March 22d 1882 entitled An act to amend section 5352 of the Revised Re-vised Statutes of the United States in Teferenceto bigamy and for other purposes pur-poses and that he has not on or since the 22d day of March 1882 cohabited co-habited wkh 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 be-fore any officer or tribunal And the plaintiff alleges that on the 13th day of September 1882 he personally per-sonally 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 de-fendant and offered to verify and requested re-quested the said defendant t take and certify plaintiffs oath to the following affidavit to wit TEnnrrouv OP UTAH 188 j County of Salt LoIs S I Jesse J Murphy beingfirstdulysworn t T depose and say I i overtwentyoneyears of age and have continuously resided in the Territory of Utah for more than six Tcmtory for more than eleven years last past I have resided in the fourth precinct pre-cinct of Salt lake City more than sixmonths next preceding the date hereof and now reside re-side i therein nf am ad male native born citizen citi-zen of the United States of America and a property owner and taxpayer in said Territory Terri-tory of Utah 1 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 I three years prior to the 22d day of Starch 18S2 or since luu ing 1 wife living married 1 another or another woman and hye con i tiuuonsly and openly resided in the counties i coun-ties of Wcher and Salt Lake t h1 te Tern i tory of Utah for more than three years prior to the 22d day of March 1SS2 and 1J I have not on or Mtice the ± 2d day of March I I 1SS2 having a wife living married another or simultaneously or on the same day I married more than one woman or on or I since said last nameddata married or entered en-tered into any marriage contract or relation with any wdman or cohabited with more than one woman or in anywise violated the act of Congress entitled An act to amend section 5355 of the I Revised Statutes of the United States reference to bicamy and for other purposes approved March 22d 182 My name is on the last registry list of voters or the second precinct Ogden City Weber Conntv UtahJESSE JESSE J ilUKlnV Subscribed and sworn to before me this 13th day of September A D1882 And at the same time the plaintiff requested the said defendant Arthur Pratt to put plaintiffs name on the registry list of votcrs of said precinct and to register him as a voter therein That the said defendant Arthur Pratt acting under the directions of the other defeadants wilfully and maliciously malic-iously refused to receive said affidavit or to swear plaintiff thereto a or t register him as a voter of said precinct pre-cinct but on the contrary wilfully and maliciously struck plaintiffs name off the list of registered voters of said I precinct and left his name off the list I 1 of voters 01 said precinct made at said registration i T Thafcafterwards beforethe close of said registration and on the 14th day of September 1882 the plaintiff 112 plaintf presented pre-sented a duplicate of said lastnamed affidavit to the defendant E D loge actingascounty registration officer offi-cer for said count 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 t swear plaintiff to said affidavit and register him as a voter I i and the slid defendant E Doe wilfully and maliciously refused to correct or change said ruling and action andopproved and affirmed the I same S sameThat on the 16th day of September ISi the plaintiff presented to said I i Board of Commissioners duplicate I said lastnamed affidavit and informed them of the action and ruling of the f defendants Arthur Pratt and ED Hoge and requested said board to re j erse and pnrrontr anrt mllnrrc on i 1 1 ton and to direct that plaintiffs > < oath I t said affidavit be taken and that he be registered as a voter of said precinct I pre-cinct and the sid Board of Commis sioners wilfully and maliciously re I fused to correct or change said rulings nilgs I and affirmed and approved the same and lastnamed ruling was made before th close of the registration in said precinct and when there was still time for plaintiff to have registered stl fore the close of the registration And on Information and belief the I plaintiff alleges that the defendant all knpwthat unless the plaintiffs name j appeared on the registration list then i lst being made of the voters of saidpre clnct his vote would not be received at the election t be held November at 11S82 or at any election until after another an-other registration of voters That at an election held throughout the Territory of Utah on the 7th of November 1SS2 for the election oi a Deleate for the Territory of Utah for the Fortyeighth Congress Uthfor went before the judges of election in aid fourth preci = electon precrf lilt I Lake in the county of Salt Lake at tl ice where the votes in said precinct pre-cinct 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 a 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 wrong fully deprive the plaintiff of the elective elec-tive franchise ih said Territory wil wl fully and maliciously by the acts and in the manner aforesaid refused the plaintiff registration as Voter at the said registration commenced on the second Monday of September 1882 and deprived the plaintiff of the right t vote at the election held in said Territory Ter-ritory on the 7th day of November18S2 and atall elections under said registnt tion whereby plaintiff has sustaintd damage to the amount of twelve hundred hun-dred dollars Wherefore the plaintiff prays judgment judg-ment against the defendants for thd sum of twelve hundred dollars and costs of suit U In the case in which Mary Ann 11 Prattjis plaintiff and appellant the complaint com-plaint is similar in all respects except the allegations as to her qualifications as voter and the contents of the af fidavit which she offered to the a uty registration officer The averments aver-ments as to her qualifications are as follows i And the plaintiff alleges that she i a native citizen qf the United States of America and prior to the22i thec day of March 1882 was more than twerityoue 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 pre-cinct Of Salt Lake City in said Territory tory for more than two years last past that she has for more than five years prior to the November election of 1882 lawfully1 exercised the rights and enjoyed en-joyed the privileges of the elective franchise in said Territory and bas 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 third precinct made prior to the second Monday of September 1882 And the plaintiff alleges that she is nQt and never has been a bigamist or u polygamist that she Is the widow of Orson Pratt Sen who died prior to the 22d day of March 1S82 after a continuous residence in lid Territory of more than thirty years and that since the death of her said husband she hc has not cohabited with any man The affidavit proposed by her contained con-tained the same allegations Alfred Randall and Mildred E Randall Ran-dall plaintiffs in another action sue as husband and wife in the right of the wife for injury to her by reason of being be-ing deprived of her right to vote The averments in the complaint as to her qualifications are as follows And the plaintiffs allege that the plaintif Mildred E Randall is a native na-tive citizen of the United States of I America and prior to the 22d day of March 1882 was more than twenty one vears of age that she has resided continuously m the Territory of Utah for more than twenty years and resided re-sided continuously in the second precinct pre-cinct of Salt Lake City in said Territory tory 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 en-joyed the privileges of the elective franchise fran-chise in said Territory and has lor more than five years last past owned taxable property and been a taxpayer in said lerritory and that her name was on the last registration list of the i voters of the second precinct made prior to the secoud Monday of Sep tember 18S2 And the plaintiffs allege that the plaintiff Mildred E Randall for more than three years last past has been and is the wie of the plaintiff Alfred Ran flail who Is and nrinr to Mnrrh 9rf 18S2J was a nativeborn citizen of the United States of America tnat she has 1182 on or since 22d of March 1882 co 182 habited with any bigamist polygamist or with any man cohabiting with more than one woman that she is not a big I amist or polygamist and never has been a bigamist or polygamist and has not in any way violated the act of I Congress entitled An act to amend section 5352 of the Revised Statutes of the United States in reference to big amy and for other ad oter purposes ap proved March 22d 18S2 The affidavit presented by her to the deputy registration officer and rejected by him contained the same allegations In all other respect the complaint is similar to all the others Hiram B Clawson and Ellen C Clawson also sue as husband and wife in the wifes right and the averments i the complaint as to her averment ctions are follows And the plaintiffs allege that the te plaintiff Ellen C Clawson Is a native citizen of the United States of i I America and prior to the 22d day of I March 1882 was more than twpntnr one years of age that she has resided I continuously in the Territory of Utah for more than thirtythree years and I resided continuously in the fifth contiuously ffh precinct Ir pre-cinct of Salt Lake City in said Terri Ter tory for more than two years last I past that she has for more than ten years prior t the November election in i 1882 lawfully exercised the rightsiand enjoyed the privileges of the elective franchise in said Territory and has for more than five years last post owned taxable property and been a taxpayer in aid 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 polyga bIgmist mist and is not cohabiting and never has cohabited with anv man except her husband the coplamtiff hereunto Whom she was lawfully married t than fifteen years ago and of whom she isthe first and lawful wile That the plaintiff Hiram Claw son has not married or entered into any marriage contract or relation with any woman within the last six years and has continuously and openly re sided in the city of Salt Lake in said I Territory of Utah for more than twen t years last past t She presented to the deputy regis i tration the same officer facts an affidavit setting forth f In the case in which Tames M Bar whch low i plaintiff and appellant the In Iinti appeaut aver I meats In the complaint arc altogether complait like those in the case of Murphywhich has been sot out in fall I In each case a demurrer was filed to the complaint by all the defendants on the ground that it did not state facts tion sufficient These to demurrers constitute t cause of ac I Thee were sustained and the plaintiffs electing to abide by their pleadings judgrnoit was ren dered for the defend is which arc ar now brought by appeal or revision to this court lows The act df Match 221S2 is as folI i i t J = = = = = A CT to amend AC hundred section fifty and fiftytwo ft fftytwo of tUee vised i Statutes of the S Unite R J reference to blC Stat C tls bitmv otherpurposesigamy and Ir sI lieU enacted by the iSenat el of Representatjce5 of the cnate a d ° u enaties lCIe ofAniemca m Conglcss asse1blciTt S section uuytnreu hundred 1 t two of the Revised 8totJtSdJ f n Umted States be Sttuts of t nci hereby amended so as torLi8 i > C rcatt lows namely real as fol wie Ever person who in who a T has ernito a hu sonthor a place over wnich the United iPrc ° 5 er 1je have exclusive jurisdiction tes je marries another jurisdicton marri he ter II single and nirried 0 any man who here ft ci simultaneously or on the amajter same ti marries more than one womfn T Woman i ti Territory or other place over h u the United States have exclusive wii J A exciusivejud j b diction ChCtll is guilty of Polygamy shall be n d t snai le punished by a fine more than five hundred tne Of tve dollars anrfgt dOlars aul iv imprisonment for a term of DIOj T than five years but this not mo fve section sC 0 secton iiij not extend to an any person by reasc of sI any former marriage whose husi Ii husbaiu or wife by such marriage husbsn ci shal e beenabsent for fiye successive fve e ye and is not known to such person living and is believed by sUch to h t Pers0 on to be dead nor to any person by feaso of former e5So0 any marriage which a have been dissolved by a valid sha a of a competent court nor to decre son by reafon of any former marria per which shall have been Uriaz hI shal pronounced void by a val decree of a competent coca d II on the ground ol nullity of the nit nage contract lar I SEC 2 That the foregoing prou sions shall notaffect the prosecution ur punishment of any offence alre dv w committed against the section amended by the llrst section of this act alene SEC 3 That i any male person m a Territory or other place over which ri the United States have exclusive Ihich juris diction hereafter cohabits jur dicton hereafer cohabit with more than one woman he shall be deemed ri guilty of n misdemeanor and deeme viction thereof shall be punished bra fine of not more than three hundred dollars or by imprisonment for not more than six months or by both said 0 punishments in the discretion of the court L ISEC4 Thatrcounts for any orall of the offenses named in sections one and three of this act may be joined in thi re same information or indictment SEC 5 That in any prosecution at bigamy polygamy or unlawful cohabitation di cohab-itation under any statute of the United tb States it shall be sufficient cause of d challenge to any person drawn 01 chalenge summoned sum-moned as n juryman or talesman lint t that he is or has been living in tr tne practice of bigamy polycamy or un lawful cohabitation with more than CC tun one woman or that he is or bos ben U guilty of an offence punishable by IV either of the foregoing sections or by b section fiftythree hundred and fifty te two of the Revised Statutes of the United States or the act of July first he eighteen hundred and sixtytwo entitled en-titled An act to punish and prevent pre-vent the practice of polygamy in the Territories of the Unte States and other places and disapproving ICn approving and annulling certain acts T n 01 the Legislative Assembly of the Territory of Utah or second that he vi believes it right for a man to have more than one living and undivorced wife at th the same time or to live in the practice th of cohabiting with more than one woman reIn < man and any person appearing or re-of reIn In-fered as a juror or talesman and challenged chal-lenged on either of the foregoing foi on grounds may be questioned on hb bath as to the existence of any red I cause of challenge and other evidence m may be introduced bearing upon th question raised by such challenge and questof rised chalenge ad ses this question shall be tried theconrt ceri But as to the first ground of challenge cia beforementionedtheperson challenged qu shall not be bound to answer i he 5 s say upon his oath that he declines on the ground that his answer may tend oa to criminate himself and if he stall answer as to said first ground his answer an-swer shall not be given in evidence any criminal prosecution against h for any offence named in sections an one or three of this act but if he declines de-clines to answer on an ground ue shall be rejected as imcoinpetent her Sec 6 I That the lresident i here or1 by authorized to grant amnesty to tsca oft classes of offenders guilty of bigamy Ten polygamy or unlawful cohabitation bar cohbitton unawful or before the passage of this act on inch nati < conditions and under such limitations Tin a he shall think proper but no snffl TinS amnesty shall have effect unless the conditions thereof shall be complied with withSEC SEC 7 That the issue of bigamous Tht isue Igmou toe or polygamous marriages known as Mormon marriages in cases knonh the such marriages marrges hve been solemnized ten it according to the ceremonies of we the Mormon sect in any Territory of the United States and such issue shaU orl have been born before the first day ot yeal ann January Amino Domini eighteen u Yea trail legitimated dred and eightythree are hereoj trit legitmated c SEC 8 That no polygamist OiZi 10 polygmit wit shaj mist or any person conabitms wit cue more than one woman and no woatmi with of tht persons described cohabiting any the person his sectiOfl1 a scribed as aforesaid in this section i pred Pre anyTerritory orotherplace over ffica anyTerIory oter as a juns the United btateshave exclusive jun Unitd tatef toel at any C coteat1 diction shall be entitled to vote an dicton shal entted Territory or any election held in any such Terrtr 8th election other place or be eligible for Irrible 10 a or appointment to or to be entitled t hold office t of public trojj honor any or emolument or place In under 0rfOr cacti such or otidtf any Territory or place the United States SEC 9 That all the registration oc and election officers of every deSCrIPtion nan deSCrIP-tion in the Territory of Utah are hereby tl TertoI Ut omit by declared vacant and each anajE ere corn duty relating to the registration first voters the Iconduct of elections ana te votes receiving objection of votes s une canvassing and returning of the 3Jer Hat or ptbe and the issuing of certificates se4 evidence of election in said Terntogi ont shall until other provisions be Ia j shal unti provsion Assembly o f S by the Legislative mill t 5 Territory as is hereinafter by this ChIC Teior a tlon provided be performed nnaer d day ton existing laws of tho United States ° ° saidl of said Territory by proper per the s who shall be appointed t execute bJ 4 offices and perform such dutIes C0U1 perfor o1ces flDti0 tobe sppo lt board of five persons d by the Preside by and with teo the r of the Se88W ther vice and consent te ti more than three of whom J t b members of one political put rum polic r majority of whom shill be quO rap tern The members of said bou Cht seco pointed by the President sh c r < ceive a salary at the rate 0 d b thousand dollars per annum tice acton thouand dolar pe tre continue in offic untitl Lz e Assembly 1 said Territory sw forffiling said otlCSf I sid provision for1in tt fn authorized The secrttarf gf on O authorzed o Territoryshall be the secretary of ItS pro iJ journal tftq board and keepa rf j ceedings and attest the action b ceedlng section tommie board nnder this secton l tis at ekbf and return of all the votes f t in said Territory for membC5 U Territor IcIberhal s OKI Legislative Assembly tbertg hi so be returned to said W 1r 1 YUee I canvass 211 suchreturnsandJssue I W l 1 shall es of election t thoseperson P States who certifc eligible for such eleton fand for 1ia11 appear to have been lawfully elected which certificates shall be the eniv evidence of theright of such per d HOU8 e only to St in such AssemblyrlPrOuerf 4 Stt son said board of five persons shall Sid shaI led Tiiat not exclude any person otherwise ud fiitv eligible to vote from the polls on account s of the ac-count of any opinion such person may sane is entertain on the subject of bigamy or d as fol nolvcamynorshall they refuse to count any such vote on account ot the opinion sband or opin-ion of the person casting it on the sub or other ject of bigamy or polygamy but each i States House of such Assembly after its lereafter organization shall have power t decide rried or de-cide upon the elections and qualifications icreafter qualifica-tions of its members and at or after I me lay the first meeting of said Legislative Ian ina Assembly whpsemembers have jr which been elected and returned acc ringto ivejuris the provisions of this act saldiLegjs my and jatve Assembly may make such laws of E not conformable to the organic act of said f s anal by Territory and not inconsistent with pot more other laws of the United States las it pon Shall shall deem propert concerning the filling leason of fil-ling of the offices in said Territory tle 1 husband S inoi1 intrant hv this act1 tall have Section 5552 of the Revised Statutes Fe years which the foregoing act amends reads on to be a as follows Every person having p person husband or Ever vho marries fey reason another whether married or single inch in-ch shall a Territory or other place over whlch Id decree the United States have exclusive jurisdiction any per juris-diction i lave my and shall I marriage be punished by n fine of not more than led void live hundred dOllars and by imprisonment fnt court imprison-ment for a term not more than five he mar Jears but this secttoa hhall not extend ex-tend to any person by reason of acy Jg proi former marriage whose husband or jeution or wife by uch marriage is absentIor already fivestlccessive years and is notknown amended to such person to be living nor to any person by reason of any former mar jersou in riase which has been dissolved by decree er which de-cree of a competent CQurt nor to any jvejuris person by reason of any fprnier mar ith more riace which has been pronounced void deemed by decree of a competent court on then the-n con Around nullity of the marriage con bed by a tiact hundred tact the time of the passae of the act i for not of March 221882 the qualifications of lioth said TOters prescribed by the Territorial In of the Legislature Toter whose right to do so was conferred by the organic act of Utah or all of were as follows I males they ere i one and required to be citizens of the United d m the States over twentyone years of age at and constant residents in the Territory tion fr durin the six mouths next preceding ll cohab the election and no person was t bee be-e United deemed a residentunless he was a taxpayer cause of tax-payer in the Territory if females 1 01 sum they were required to be imales lau first ate oi twentyone years resident I Ig in the in i the Territory six months next pro J I or un ceding the election and born or naturalized lre than nat-uralized in the United States or the has been wife widow or daughter of a native wie witow liable by born or naturalized citizen of the United ps or by Uni-ted States Act to establish a territorial I End fifty Government for Utah approved September I l0unment Uah approve Sptm 1s of the be 9 1850 9 Stats 453 Oomp I July first Laws of Utah 1876 p 88 two en At the same time there was also in I Tind pre force chap 12 of the laws of UtahlS78 I polygamy providing for the registration of voters I f United vo-ters and to further regulate the manner I Sind dls man-ner of conducting elections in that ain acts Territory I of the That act contains the following provisions l that pro-he provisions I visions-ave more That the assessors in their respective I d wife at respec-tive counties are hereby constituted I j practice the registration officers and they are I lone wo required to appoint a resident deputy I Igor of u each precinct to assist in carrying I Ind chal out the provisions of this act and before I oregoing be-fore the first Monday in June ISTSj In Ion li I-on his person or by deputy they shall visit I Imv such trorrr flrralHrtrr in nnnh Y W P 1T1 Pt fTlf1 I evidence make careful > inquiry i as to any or all Jipon the persons entitled to vote and each assessor Inge and as-sessor or deputy in all cases shall ascertain he court as-certain upon what ground such person Challenge claims to be a voter and he shall require iallenged re-quire each person entitled to vote and f he shall desiring to be registered to take and lines on subscribe in substance the following kay tend oath or affirmation he shall f his an TiKBITOUY OF UTAH lss 1 deuce in County jss S linst him I being first duly sworn depose hm and say that I am over twentyone years of sections dtrl i ae and have resided in the Territory of f he de Utah for six months and in To IJrccinct of lound he one month next preceding the datc mt hereof and if a male am a nativeborn is here ornaturalizedas the case may be citizen y to audi ol the United States and 1 taxpayer in this bigamy Territory or if a female I am native Lbitation born or naturalized pr the svife widow bittion or daughter aa the case may be af a such CjfJtrh on native i horn or naturalized citizen of the fnitations United States agn no such Subscribed and sworn t before mc this aless the day A D 18 complied Assessor Upon the receipt of such affidavit bigamous afdavit Inown as we assessor as aforesaid shall place In which the name of such voter upon the register lemnized regis-ter list of the voters of the regs Is of theFT SEC 2 i I shall also be the duty of the assessor of each county in person FT lie shall or by deputy at the cout making the day ot annual assessment for taxes in each en uu Tear beginning in 1879 to take up the hereb f transcript of the next preceding registration I regis-tration fist and proceed to the revision I t biga ° t the same and for this purpose he I ting with S nall viIt ever dwellinghouse in r woman each precinct and make careful In preciuct sons de guiry if any person whose name is on ctionin his list has died or removed from the I er which Precinct or his otherwise disqualified lye juris as a voter of such precinct and if so I ic at any t erse the same therefrom whether I ritory or any qualified voter resides therein I election wnose name is not on his list and i so to to add the the titled same thereto in manner lie trust provided in the precedincr section I er or for EC3 I shall also be the duty of I or under each assessor in person or by deputy I duri deput ng the week commencing the first I istration nUay in June of each year at his I descrip ofnday enter on his registry list the I I resitr lst are tier Die of any voter that may have been land every Omitted ou such voter appearing and w n i ration of gmplym with the provision of the E frtt section of this act required of f j tiodlnsli E oiers for and tne or regristration teas list SEC u t Upon the completion purposes of the I or other frL j Shall be the duty of each as i errit09 oaf r T vs fresaid to proceed t make I fSfSSj eacht list in alphabetical order for i Of gs all 5Cb the precinct containing the names of I this seg tactVeered voters of such pre I t U day < et I an s uon or before the first I hates 1d Said ot f July in each year deliver all of I Itatesst the co lists and affidavits to the clerk of I cute suCh county court I tiesY tourt SEC i i The t clerk of the county pid tu Shall I Sht deliver to the assessor the p1ae ad r ihtry lists whenever for t the necessary LUG rPlrfn 1 JJVT Vi necessar not reV thereof or adding names I I ulall fcy dpZV and the assessor in person or I and ienern hhal dunn the week com I quOr temb c t e second Monday in Sep so cc lir in the year 1878 and every I each re dYear thereafter eyer I I thereafer enter names ntrp I a ehr ° r Sistry list In the man I I ctarnin PCOvjdd m section three of this 1 Proceed upon the list beIng completed I bill thia q tas required by section four of I sa1ieg hesi ifPforided That in such case I 0faId oorbCfftrllvterthclists and affidavits rv o h Jeat re the 10th day of October in I itSfJahi clectfoCnCvVotors removing from one C it tne cnnpncuict t another in the a88esso ty may appear before the I I QaUv r 30at lf any time previous to the I Y of ho tme f theY the regjgtry lit t the clerk I rd count COurt and have their t names erased therefrom and the may thereupon l have their names registered regis-tered in the precinct to which the may remove SEC + 7 The clerk ot the count ourtshall file and carefully preserve tourtsal crfuly aUsald affidavits and registryJlstsanc jshall make a oPY11ofi eachf precincl registry list and cause the same t bt posted up at least fifteen days before any election at dr near the place of electidn and shall make and transmit another cdpy td the judges of election Sic 8 The clerk of the count court shall cause t be printedpr writ tena notice whichshall designate the offices to be filled and stating that the election will commence at designating desig-nating the place for holding the polls one hour after sunrise and continue until sunset on thq day of18 naminff the day of election Dated at AT18 < lectonl dMe Count Court J 5 v Tl JH J A copy of which shall be postecr up at least fifteen days before the election in three public places in said precinct best calculatedto givenotice to all the voters I shall also be the duty of the clerk of theTcbtmty court to glve notice on the lists sO posted thai the ser r 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 qualifled voter in writing and delivered to aid justice who shall issue ri written rioticc toj the person objectedtostatiusthcphice day and hour when the objection will be heard The person making the objection shall serve or cause to be seived said n ticff Upon the person objected to and shall also make returns of such service to the justice before whomthe objection shall bf heard Upon the hearing of the case i 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 list of the names ofall such unqualified persons to the judges of election and said judges shall strike such names from the registry list before be-fore the opening of the regstr SEc 9 The county court shall at t first session in June of each year appoint three capable and difccreet persons in each precinct in thejounty one ht1east of whom shall be of the political party that was in the minor ity at the last previous election i any such party there be in such precinct part tu act as judges of general and special qlrctions and they shall designate one ot the persons appointed to preside and the other two to act as clerks of said elections And the clerk of said court hall make out certificates of aid appointments and transmit the same by mail or other safe conveyance to the persons so appointed whopre Ious to entering upon said officeshall take and subscrioc an oath to the effect that they will well and faithfully perform per-form all the duties thereof t the best of their ability and that they will studiously studi-ously endeavor to prevent any fraud deceit or abuse at any election over which they may preside I in any precinct I pre-cinct 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 desig-nated for opening the polls may elect a Judge or judges to fill the vacancy and thepersons so elected shall qualify as hereinbefore provided Sections 10 and 1 prescribe how bal lotboxes keys t shall beprocured and provide for envelopes and ballots and for keeping the boxes during the voting and until the canvass and section sec-tion 12 provides how the judges shall keen the lists etc i 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 affirm-ative ornegative lie shall state the proposition pro-position at the bottom of the ballot and write thereunder yes or no as he may desire to vote thereon which ballot bal-lot shall be neatly folded and placed in one of the envelopes hereinbefore provided pro-vided for and delivered to the presiding presid-ing 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 ballotbox 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 March 23d 18S5 Mr Justice MATTHEWS after making the foregoing statement delivered the opinion of the Court These cases although actions at law were iiofrtrieaby jury j and therefore are rightly brought nere by appeal according ac-cording t the provision of the act of Congress of April 18i4 18 Stat pt 3 p 27 Supplement Rev Stats 12 Stringfelloiovi Cain 99 U S GlQjHecht tw voaW et v Tlniinlitnn 10r TT K > 3V Wnnlf v Hamilton 108 U Si5 n The wrong complained of In each case by the respective plaintiffs is that the defendants and each of them intended tended to wrongfully deprive the plaintiff plain-tiff of the elective franchise in said Territory wilfully and maliciously by he actsand In the manner aforesaid refused the plaintiff registration as a voter at the said registration commenced com-menced on the second Monday of Sep ember 18S2 and deprived the plaintiff plain-tiff of the right to vote at the election held in aid Territory on the 7th day of November 1882 and at all elections under said registration The acts which itis alleged were done by the five endants as a Board of Commissioners or Canvassers under un-der the law of March 18 and which contributed to the wrong and consti tuted part of it are that they prescribed as a condition of registration an unauthorized un-authorized oath set out In the complaint com-plaint In a rule promulgated by thor I for the government of the registration officers and that the deputy registra tion officer having in obedience to such rule acting under the directions of the other defendants wilfully and maliciously refused to receive the affi davit tendered by the plaintiff in lien of that prescribed by the rule of the hoard and to register the plaintiff and that the county registration officer on appeal having refused to order otherwise other-wise the Board of Commissioners also refused to reverse and correct these ruling and t direct the registration of the plaintiffs respectively but affirmed af-firmed aud approved the same frmed an examination of the ninth section sec-tion of the act of March 2 18 pro vldin for the appointment and prescribing pre-scribing the duties and powers of that board shows that they have no functions func-tions whatever in respect to the registration regis-tration of voters except the appoint mentof officers in place of those pre viouslv authorUedwhose offices are by that section of the law declared t be vacant and the persons appointed to succeed them are not subject t the direction and control of the board J out 1111 iZ3 r r are required J unil other provision bl requied URti matte by thTrlegtslatlvesssembljrof r Territory t perform all theduties relating Terrtor perorm lating to the registration of voter r under the existing laws of the S United States and of said Territory I Ter-ritory f 1he board are not I authorized to prescribe rulesforgoy i erninglthenr in theVperformancetol 1 tIe1 ranceo i these duties inuchless prescrihe qualifications for voters as a condition con-dition of registration The statutory powers of tim board are limited to the appointment of the registration and election officers authorized to actlin the first instance under the law uutil provision Is made by the Territorial Legislature for the appointment of their successors and to the canvass of thareturHS and the issue of certificates of election ifo those persons who be ing eligible for such election shalhap pear to have been lawfully elected The proviso in the section does indeed declare that said board of five persons per-sons shall not exclude any person otherwise Hgible lo1 tfotej t from the polls on account of any opinion such person may entertain on the subject of bigamy or polygamy but in the ab sense of any general and express power over the subject of declaring the qualification fication of voters its not a just inference In-ference from the words of this proviso I pro-viso that it was intended to admit by implication the existence of any authority au-thority in the board to exclude from registration for theright vote any person whatever or in any manner to define and declare what the qualifications qualifica-tions of a voter shall be The prohibition prohibi-tion against excluding any pergoafrom the polls for the reason assigned must be construed with the additional injunction nor shall they refuse to count iinj suchvotaon accdunt of sttye bpinion of the person casting it on tie subject oi bigamy or pQlygamy to apply to the actpu of tthe oard in canvassing can-vassing the returns of elections made to them by the officers holding such elections or i it includes more it is t be taken as the announcement a general principle to govern all officers concerned In the registration of Voters or the C duct f elections I follows that the rules promulgated by the board prescrlbirigL > thetfprm of prescrihigLtm oath to be exacted of persons offering t register as voters and which constitute con-stitute the directions under wjiiehiit is alleged the registration oflicers acted were without force and no effect can be given to them It cannot bb alleged that they had the effect in law of pre entngthc registration < Of the plain tift for the regstratlonofllcers were not bound to obey them 5 and i they did so they did it in their own wrong There was no relation between the board and the oflicers appointed by them of principal and agent so as t 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 tween the acts of the board as charged and the wrongs complained of The judgment in favor of the deten dants composing the Board of Com missionerSjUpon their demurrer therefore there-fore was rightly rendered The cases as to the other defen dents the registration officers stand on different principles I they were merely ministerial officers and if they have deprived the respective plaintfffs of their right to be registered as voters in violation of law they may be responsible re-sponsible 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 consider tion 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 exist-ence of specific enumerated qualifications qualifica-tions 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 be registered as such That legal inference is neces sary to complete the case as stated and the sufficiency of the statement must depend on whether all the positive posi-tive qualifications required by law are alleged to have existed and all the disqualifications affixed by law have been negatived iTq ascertain this wi have t compare the allegations ofithe complaint iri each case with the requisitions ot the law and by construction to determine whether they conform So far as the requirements of the law existing at < the tlma i of the passage ot the act of March 22d 1882 and which continued in force concurrently with that are concerned there Is no I difficulty Each of the plaintiffs is shown to have bden a qualifieU voter unless disqualified by the latter act The only question is whether they have I brought themselves within the mean lug of that act The language on which the questions arise occurs in the 8th section and j That no poly gamlst bigamist or any person cohabiting co-habiting wIt more than one woman and no woman cohaliting with any of the persons described as aforesaid in this section etc that Is with any polygamist bigamist or person cohabiting co-habiting with more than one woman shall be entitled to vote at any election held in the Territory I the case In which Mary Ann 1L Pratt is plaintiff she clearly excludes herself from the disqualifications of theact Shealleges her complaint that she is not and never has been a bigamist 1 polygamist that she is the widow of Orson Pratt Sen who died prior t the 22nd day of March 1832 after t continuous residence In said Territory of more than thirty years and tat since the death of her said husband she has not cohabited with any man The same i true in reference to the allegations of the complaint in the case In which Mildred 35 Eitudall and her husband are plaintiffs They are that the plaintiff Mildred EKandall for more than three years last past has been end i the wife of the plaintiff Alfred Itondall who ite and prior to March 22d 1882 was a nativeborn citizenof did United States of America ca i that she has not on or since March 22d 1882 cohabited with any bigamist pblygamist or with any man cohabiting cohabit-ing with more than one woman thut she is not a bigamist or polygamstand never has bepu A bigamist or polygamist polygam-ist and has not In any way violated the act of Congress anrwayviolat act to amend section 5302 of the Revised Statutes of the United Stat sInrefer enceto bigamy and for other purposes pur-poses approved March 22d 1SS2 The requirements of the eighth section sec-tion 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 withVpoly gamlst bigamist or person cohabiting with more than one woman and It is sufficient i jJOJopltint denies thq i 1 iJSlL1 i I i 1 I I disqualification in the language of the act TheseTeqniremcnts arerf nil met in the two cases just nrclnly 1 Thecase of Ellen C Clawson Is dif i ferent In the complaint filed by hen self and her husband it is alleged that sheis not and neverhasbeen a bigamist biga-mist or polygamist and is not cohabiting cohab-iting andjnever has conabited with any man excepther nusbandj the coplain tiff herein to whom she was lawfully married more than fifteen years ago and of whom she is the first and lawfu wife that theplalntiff Hiram B Claw son ha4 nothmrried or entered into any mari g contract or relation with any woman within the last six years and has continuously and openly resided re-sided in the city of Salt Lake in said Territory of Utah for more than twen ty years last past > 4 It is quite j consistent t with these statements that the b sbandl of the female plaintiff was at the time she claimed registration a bigamist or a polygamist or that ha was then cobab polygmist itmgjWith more han newoman and that she was cohabiting with him at the same time She would be on either supposition expressly disqualified 1 from voting by the eighth section of the i act of March 22d 1882 and she does not negative the fact I cannot therefore be inferred that she was a lawfully qualified voter The cases of Murphy and Barlow are allkean substance In Murphy case 1rufhY the allegations grg ithaf hejhasnot since more than three years prior to March 22d 1882 marru d or entered into in-to any marriage contract or relation with any woman or in anywise violat edtlfe act 6f Congress approved July 1 1SC2 defining and providing for the punishment of bigamy In the Territories Territo-ries and las not yiO lated any of the provisionsof i the act of Congress approved March 22d 182t etciIil i L i andithat liCLhas not on or since the 22d < day ofMarch 1882 cohabited with more than one woman and has never ben > charged ctrged with or accused or convictcdbf1 bigamy or polygamy or cohabiting with more mOre than onewomanan any caurlor 6re l any bfflcer Or tribunal IrPBarlows case the statement on one point IS stronger r Itlisttiat hVhas nbt on or since the firstday of July 18C2 182 married or entered into any marriage contract orrelatioijnsItH any w fun or in anywise vlolatecfthe act of Congress Con-gress approved July jl 18fi2 defining and providing for1 the I iunishment of bigamy in the Territories That is to say that although hemay have jnar I ned a second wife it was before any law existed in the Territory prohibiting I prohibit-ing I and therefore It could nothave been a criminal offence when committed com-mitted 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 I is admitted that the use of these very terms in the complaint is not necessary i the disqualifications lawfully law-fully implied by them are otherwise substantially denied That such is their case is maintained by the appellants appel-lants The words bieamlst and polygamist poly-gamist evidently are not used In this statute in the sense of descrIbin those I who entertain the opinion that bigamy and polygamy ought to be tolerated usa us-a practice not Inconsistent with the good order of society the welfare of the race and 1 true code of morality i such there be because in the proviso pro-viso 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 un-derstood as meaning those who prior I to the passage of the act of March 22d I 1SS2 lad contracted a bigamous or polygamous marriage either in violation viola-tion of an existing law such as that of July I 1862 or before tne enactment of I any law forbidding it for to do so I would give to the statute a retrospectIve retrospec-tIve effect and by thus depriving citizens citi-zens of civil rights merely on account I of past offences or on account of acts which when committed were not offences of-fences would make It an ex post facto I lawand tnerefore void Ana the conclusion con-clusion Is declared to be necessary that the words polygamist and bigamist biga-mist 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 when the United States have exclusive jurisdiction j hereafter marries another whether married or single and any man who hereafter simultaneously sim-ultaneously or on the same day marries more than one woman in a Territory or other place over which the United States have exclusive jurisdiction j I But there is another meaning which j may be given to these words which we thint is the one Intended by Congress Con-gress In our opinion any man is a polygamist or bigamist in the sdnse of I this section of the act who having I previously married one wife still llv me and having another at the time I when he presents himself to claim registration reg-istration as a voter still maintains that relatfon to a plurality of wIves although pluralt though from the date of the passage of the act of March 22d 1882 1 until the day he offers to registered to vote he may not In fact have cohabited with more than one woman Without regard t the question whetner at the timehe I J entered Into such a relation It was a prohibited punishable offense or1 whether by reason of lapse of time I since its commission a prosecutionlor it may not be barred if he still maintains main-tains therelatIon he is a bigamist polygamist because that is tIe status whicthe fixed habit and practice of 1 his Jiving has established He has a J plurality of wives more than one woman whom he recognizes as a wife of whose children he is the acknowledged father and whom with I their cnlldren maintains asa family of which I is i the head And this status as to several wives may well j I continue to exist as a practical rela tion although fora period he may not In fact cohabit with more than one for I I that i quite consistent with the con j t stant recognition of the same relation f tQ many accompanied with a possible I Intention t renew cohabitation with one or more of the others when it may I r be convenient It i not therefore because the person I per-son has committed the offence of bigamy polygamy at some previous time in violation of some existing i i statute and as an additional punishment I I punish-ment for its commission thathe i disfranchised dis-franchised by the act of Congress of March 22d 1SS2 nor because he is 18 guilty of the offence as defined and punished by the terms of tat act but because having at some time entered i into a bigamous or polygamous rela thin I 1 bva marriage with a second or third wife while the first was living he still maintains it and has not dissolved I it although f i the time being he restricts re-stricts actual cohabitation to but one I He might in fact abstain from actual cohabitation with all and ohlbIatIon I bp still as much as aver 1 bigamist I or a polygamist He can only cease to be such wnen he has finally and tnaly fully dissolved m some effective fuly efectve manner man-ner which we are not called on here t point out the very relation of hus band to several wives which consti tutes the forbIdden const te status he has previously pre-viously assumed Cohabitation is but one of many incidents to the marriage relation It i not essential to I One man where such a system has been tolerated and practiced may have several sev-eral establishments each of which may be the home of a separate family none Iar of which he himself may dwell in or even visit The statute makes an express ex-press distinction between bigamists and polygamist on the one hand and those who cohabit with more than one woman on the other whereas where-as i cohabitation with several wives was essential to the description of tnose who are bigamists or pslva mists those words in thestatute would be superfluous and unnecessary It unneccssar I follows therefore that any person having several wives is a bigamist or polygamist in the sense of the act of I March 22 i8S2 although since the date of its passage may not have cohabited cohabied with more than one of them Upon this construction the statute is not open to the objection that i is an e post facto law It does not > seek in this section and by the penalty of dis franchisement to operate as a punishment punish-ment upon any offence at all The crime of bigamy or polygamy consists lu entering into a bigamous or polygamous I polyga-mous marriage and is complete when I I the relation begins That ot actual co habitation with more than habiatIon witl tha one voman is defined the and detned punishment prescribed pre-scribed in the third section The dig ranchisement operates upon the exist I ing state and condition of the person and not upon a past offence I is therefore retrospective He alone is deprived of his vote who when he offers to register is then in the state I and condition of a bIgamist or aTiolyg amist or Is then actually cohabiting actuaIy cohafltng with more than one woman Disfranchisement Disfran-chisement is not prescribed as a penal ty for nemgjiuilty of the crime and offence of ofence bigamy or polygamy for as has been said that offence consists in the fact of unlawful marriage and a prosecution against the offender is barred by the lapse of three ofender by section 1044 of the Revised Statutes Continuing to live in that state afterwards afer wards isnot an offence although cO habitation with more than one woman is But as one maybe living in a bigamous biga-mous or polygamous state without co habitatiOn with more than one woman he is in that sense a bigamist or a polygamist and yet guilty of no criminal crimi-nal offience So that in respect to those disqualifications of a voter un den the act of March 22d 1882 the ob ection is not well taken that represent repre-sent the Inquiry into the fact by the officers of registration as an un lawful mode of prosecution for crime In respect the fact of actual cohabitation with more than one woman the objection is equally ground gonnd less for the inquiry into the fact soar so-ar as the registration officers are au thorized to make it or the judges of election on challenge of the right of the voter i registered are required to determine it is not in view of its character as a crime noi for the purpose pur-pose 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 I is precisely similar to an inquiry into the fact of nativity of age or of any other status made necessary by law asa as-a condition of the elective franchise I 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 I officers would be authorized to de ermine 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 1 similar inquiry for the like purpose into the fact of a subsist lug and continuing bigamous or poly amous 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 con-stitutional power of Congress t pass the act o March 22nd 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 I has passed beyond be-yond the stage of controversy final judgment The people of the United I States as sovereign owners of the National Territories have supreme power over them and their Inhabitants In the exercise of this sovereign dominion do-minion they are represented by the government of the United States to I whom all the powers of government oer that subject have been delegated 1 subject only to such restrictions as expressed in the Constitution or are necessarily Implied In its terms or in the purposes and objects of the I power itelf for it may well be admitted ad-mitted in respect to this as to every power ot society over its members that itis not absolute and unlimited I But in ordaining government for the I Territories and the people who Inhabit I them all the discretion which belongs to legislative power is vested in Congress I Con-gress and thatextetidSjbeyond all controversy I con-troversy to determining bylaw from time to time the form of the local gOY I ernment in a particular Territoryand I the qualification of those who shall administer I rests with Congress to say whether iri agiven case any Of the people resident in the Territory shall participate in the election of its officers or the makin of Its laws and it may therefore take from them any right or suffrage I may previously bare conferred or at maY e modify or abridgeit as it may deem expedient expedi-ent The right of local selfgovernment a known toour system as a constitutional constitu-tional franchise belong under the Constitution to the States and to the people thereof by whom that Constitution Constitu-tion was ordained and te 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 inhabi-tants of the Territories are secured t them a t othercltlzens theprincl pIe of constitutional liberty which restrain re-strain all the agencies of government State and National their political rights are franchises which they hold as privileges In the legislative discretion discre-tion ot 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 ot Yankton 101 US 129 See also American Ins Co v Canter 1 Pet 11 U JS v Gratiat 1 P 250 Cross v Harrison 1C HIM Drcd Scott v Sandford 19 111 3 I 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 puroses measures which prepare the people of Territories to become tt Sin S-In the Union still the conclusion cannot can-not be avoided that the act of Congress Con-gress here in question i clearly within that justification For certainly no jlt I legislation can be supposed more fl fl wholesomejind necessary in the found I I i ing of a free selfjroverning commonwealth common-wealth fit to take rank as one of the j coordinate States of the Union than I tl I that whicn seeks to establish It on the basis of the idea of the family as consisting 4 con-sisting in and springing from the union for life of one man and one woman in i t the holy estate of matrimony the sure I foundation of all that i stable and i1 f noble in our civilization the best t guaranty of that reverent morality J which i the source of all beneficent i progress in social and political tin I r provement And to this end no means hare h-are more directly and Immediately suitable than those provided by this act which endeavors L withdraw all political Influence from those who are i1 practically hostile to its attainment J I remains to be considered whether J in the two cases in which Mar Ann M Pratt and Mildred E Randall and I husband are respectively the plaintiffs and in which the plaintiffs have shown I I a title to vote the defendants who were I ire i-re officers are sufficiently charged with ofcersi liability I I As we have pointed out they were H II J bound by virtue of their appointment I t under the nth section of the act of I ji I March 22d 1882 to perform their duties J under the existing laws of the United t i l States and of the Territory The law 4 h of the Territory then in force be ng An act providing for the registratou 1 of voters and to further regulate th J < manner of conducting elections TirlSis n I Territory approved February id H j I 1S78 made it tie duty of the registration j I registra-tion officers and their deputies to make careful inquiry as to any or alI t H al-I I persons entitled to vote and ascertain I ascer-tain m all cases upon what ground tie b 1 I person claims to oe a voter ami r s tT provided that he sl i LUUIIC each j person entitled to vote and desiring t j be registered to take and subscribe in I substance the following oath c tl The form of the oath is then set out containing a statement of all the particulars par-ticulars which according to the laws 1 i I then in force were necessary to show the qualifications of a voter It was then provided that upon the receipt of f I such affidavit the officer shall place r the name of such voter upon the register I regis-ter list of the voters of the county I The act of March 22d 18 count cretd I the additional disqualifications which I have been mentioned and which of course arc not met by the oath as proscribed i scribed by the territorial act of ItvS I and it Is notconsistent with the express cxress provisions of the act of Congress that JI every person willing to take the oath in i the form prescribed by the territorial act shall be permitted to legisterasa t voter Either the oath itself must be regarded merely a modelto be modi t1 ted by the operation of the act of Congress I Con-gress so as to meet by appronriate denials the several new disqualifica i tions created by it and then to betaken j I i with the prescribed effect of entitling 1 the person subscribing it to register W1 1 a withoutotherproof orelsethe I effect ol the act of Congress is to limit F I the class entitled to take the oath in tie it form prescribed by the territorial act cI I sct I with the effect thereby given to it t fl those who are not subject to the disqualifications I 1 qualifications which the act of Coi td l gress imposes The existing laws Of t the United States and of the Territory z t t t under which the election officers are bound to perform their duties must 11 d include the act itself which provides for their appointment and define their I f duties and i they have not the risotto i exact an oath different from that the ji form of which is given in the territorial t i i act they must otherwise satisfy thera 1 tfn selves that persons offering to register it t I are free from the disqualifications de I Ir fined in the act of Congress In doing I l I SO they flTO Of OlrFf ronnirAl tn nrrni r r cise diligence and good faith in their t 11 inquiries and are responsible In damages fi dam-ages for rejections made without It reasonable cause or maliciously i I In the two cases last referred to the t Y allegations of the complaint show not f t only that the several plaintiffs were s legally entitled to be registered as voters I t vot-ers but declare that the refusal of there the-re officers to admit them to I the list was wrongful and malicious mllcious The demurrers admit the plaintiffs case as thus stated and therefore r ought have been overruled 1 It follows that the judgments in tie three cases in which Jesse J Murphy 1 Ellen C Clawson and Hiram B lurhT t j son her husband and James M Bar i low are he respective plaintiffs are I 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 Alex-ander Ramsey A S Paddock G L Godfrey A B Carleton and J E Pet 1 tlgrew are affirmed and as to the de fendants E D loge John S Lindsay and Harmel Pratt the Judgments are reversed and as to them the cases are remanded with instructions to overrule v over-rule the demurrers and for further V L proceedings And it is so ordered |