Show H FME FRANCHISE Liberal Lawyers Left on Thai Last Legs THE SUPREME COURT WILL Nor ISSUE THE PfiRKHPIOBY MANDAMUS EtnI hn lie Erasure Exjeiis Judges Hunter and Emerson Deliver De-liver the Majority Opinion JUDGE BORE DISSENTS And Is Consistently the last Inconsistent to FULL TEXT OF BOTH OPINIONS A Few Facts for Future Franchise Fran-chise Fighters While Womans WRights Wends its Wictonons Way JUST WHAT I TOLD TtOD I trODXD DrAt Dr-At 4 oclock on Friday afternoon the Supreme Court met in the Federal Court Room pursuant to adjournment adjourn-ment on Thursday Chief Justice Hunter and Associate Justice Bore man were on the bench Justice Emerson being unable to be present on account of court business in his own the First District At tbe time the court was opened there was a large number ot ladies present a majority of whom bad attended on Wednesday evening when the arguments were delivered These were inside the enclosure enclos-ure The bar was also well represent the attorneys on both ides being present while the body of the room was twothirds filled by gentlemen As soon as quiet had been secured Judge Hunter began by reading the opinion of the court which is given in full below I was delivered in a clear full voice the reading occupying abut twelve minutes and was listened to with tbe most profound found attention At the conclusion P great many having come in during the delivery a start was made for the door but silence was commanded I and Justice Boreman delivered the minority view which ia also pub iabed here The result did not seem to occasion any surprise but evidently caused a great sense of relief to many of those resent The matter has bean canvassed can-vassed pretty freely ever since the petition was filed one week ago today to-day but especially since the con elusion of the arguments on Wednesday evening and tbe opinion of f S majority of the lawyers as well as of men who pretend to have some knowledge of such matters was that the decision would be substan I tially as i is I is a question whether the attorneys for the petitioner ever expected the mandamus would be made peremptory While nearly all ba lawyers conceded the court would rule that to grant the writ would ben be-n exercise of original jurisdiction which did not belong to itnevertheleis it was expected the questions fundamentally funda-mentally involved in the issue would be passed upon and the validityof the laws now questioned be finally determined deter-mined In this regard they have been disappointed ai the vital questions railed have not been touched I may not be generally known that this case cannot be appealed but such is the fact and the mater has therefore cone its full length I the questions be ever raised gain they muet come up in tome Lber way and in another shape While as before stated the decision was not unexpected it is nevertheless a source of the greatest relief and satisfaction to know that its terms are so plainly and so emphatically in favor of the people Here is he opinion Judge Hunter THE MAJORITY OPINION In the mater of the petition and affidavit affi-davit of George R Maxwell for writ of mandamus directed ta Robert T I Burton Assaor and Register of Salt Lake County Territory of Utah I SUPREME COURT or THE TEBBITOBY OF UTAH Sutherland McBride for Eelator Zer Snow Zerrubbabel Snow J L Bawlini Richards Williams Bennett Rankness A Miner for Respondent A petition was presented to this court at is present session by the re lator for a writ of mandamus to I compel Robert T Burton Assessor and Register of voters for Salt Lake County Utah Territory to erase and strike from the list of voter nl OIL Lake fiouniy aue oy him the names of the following perionp viz Emmeline B Wells Maria MBIytbe and Mrs AG Paddock and also the amcs of all women whose names thereon appear on the aforesaid list or that he show cause before this court on tbe 29th day of September why he baa not done so Also than tha-n the meantime the said officer be orderetljnot to return said Hit or any copy theneofo any election officer until me turtpor oroer 0 tots court An alternative writ was ordered at the time of filing the petition ambo am-bo cause came up for hearing on the day mentioned in the alternative writ to wit Sept 29 1883 The respondent on the day fixed or the hearing appeared by counsel who interposed a demurrer to the petition grounds therefor and writ assigning as 1 That this court baa no jurisdiction jurisdic-tion of the subject of this action 2 Neither the petition nor writ herein state ICU sufficient to constitute con-stitute a cause of action thus raising two questions for the determination of this court I has been heretofore held by the Supreme Court of this Territory in the cue of Shepperd w the Bacon District Court that this court has no original jurisdiction to issue man damns except to enable it to exercise exer-cise its appellate jurisdiction And < the court in that case cites section 9071866 and 1 869 of the Revise Statutes of the United Elates and the third section of an act entitle An Act in Relation to Courts and Judicial Officers in the Territory of Utah Poland law which are as follows Sec 1907tIhe judical power in Utah shall be vested in a Supreme Court District Court Probate Court and the Justice of the Peace Seo 1566Tho jurisdiction bot appellate and original ol the curls provided for by section 1907 shall be limited by law Sec l869Wnits of errorbilla 01 exceptions and appeals shall be allowed al-lowed in all oases from the final de cisioca of the District Court to the Supreme Oar of all the territories respectively under such regulation as may be provided by law but in i no case removed t the Supreme Court shall trial by jury be allowed in that court Third section Judicial Act The District Court shall have exclusive original jurisdiction in al suits and proceedings in chancery and in all actions at law in which the sum or value of the thing in controversy contro-versy shall ba 0 or npwards The Supreme Court in pasting I upon these laws in the decision cited I says Regarding the acts of Congress as the supreme law of this territory haying hay-ing u controlling power similar to i i not coextensive with tbe constitution state their re of any particular over re Ipective legislatures and judicial departments vre are forced to the conclusion that in co far as section 445 of our Practice Act which provides pro-vides that the writ of mandamus mayo > may-o issued by any court of this territory terri-tory except a justice of the peace is in conflict with the acts of Congress above referred to it is wholly inoperative ative and void The decision of the court is based upon the theory that the acta of Con greei in reference to the courts refer red to are paramount to all territorial legislation I this theory we now concur and i thug is any CooEres sional enactment which has the eflect ot making inoperative and void section M5 of the Practice Act then ot course the act is void so far as it i confers upon this court power to issue mandamus except in the exercise ala it al-a appellate jurisdiction I is in shied that the third section of the Act in Relation to Courts and Judicial Officers in the Territory ol Utah as above quoted resolves that question To a certain extent said third section hal the effect of limiting the jurisdic ion of this court but only to that certain extent It confers upon the District Court exclusive original june diction in all suits or proceedings in chancery and in all actions at law in which the sum or value of the thing in controversy shall be 300 or upward ward To determine therefore whethsr the Congressional enactment destroys the Legislative enactment we must look into the character of the proceeding proceed-ing wherein tho rule is sought to be applied Clearly if the case is a suitor suit-or proceeding in chancery then the exclusive original jurisdiction over it is i in the District Court and i the cite be an action at law to which them the-m or value of the thing in contro ery shall be i300 or upwards then the exclusive original jurisdiction over it is in the District Court But i it is not a suit or proceeding in chancery or i is not a suit at law wherein the sum or value of the thing in controversy ii 300 or upwards then the District Court does not by virtue of the third section obtain the exclusive original jurisdiction The Poland Bill confers upon justices of the peace jurisdiction In all cases where the debt or sum claimed shall be less than 3OO thus giving to justices court concurrent jurisdiction with the District Courts in Bach cases where the amount in controversy ia lee than 300 Section 445 of the Practice Act provides pro-vides that the writ of mandamus may be issued by any court in this territory except a justice to any inferior tribunal corporation board or person to compel tbe pertoimance of an act which the law specially enjoins as a duty resulting from an office trust or station Under this provision the ralator has applied to this court for tne writ and the demurrer urrer interposed to his complaint and affidavit raises the jurisdictions question and in resolving that ques non it becomes our duty to apply the rule of construction heretofore referred refer-red to The case is not a suit or roceeding in chancery and therefore he District Court baa not exclusive original jurisdiction over i nor ia the amount involved in it is 30 or I upwards nor is it less than 300 upwar I hal no monicd value whatever and has no element calling for the chancery powers ol the court but it is of that class of cases in which the Practice Act confers upon this court under the broad term any court jurisdiction to issue writs of man amus To my mind these ia i a wide differ nee in the office 01 the two writs v z mandamus and certiorari The former is termed in our statute t writ of mandate and the latter is termed a writ of review Clearly in the one case looking to the enforcement ot some act or duty refused to be done by an officer in the execution ot a trust which by law he is required to do or perform In the other looking to certain proceedings ceedings had by some inferior tribunal tri-bunal wherein there is alleged error or other informality in the proceeding proceed-ing which the superior court issued the writ demesne review to ascer lain i or not the error or informality exists In the case of the writ of certiorari of tbe of this r have no doubt power curt to issue it lor the purposes pro cribed by the statute In the case of the writ of man damns I hold it can only be issued in the particular cases nrovided by the statute end lti tbo h ita o ibo power t issue it to euch cases wherein it is eou lit to compel the performance perform-ance of any act which the law specially enjoins as a duty resulting tram an office trutt or station This case is not of the kind here spoken of The officer agnint whom this writ is directed has performed his duty Wo are not called upon t command him to do any duty be has ailed or refused to perform but were we-re asked to compel him to undo an I not which the law compelled him tC1 do and he has done This we cannot do doThe validity of the law l which imposed im-posed the duty upon the respondent to enter the names ol the persons named in the register cannot be brought into question in a proceeding proceed-ing of this kind Wo find that there ia a law on our atatute books in re ersnca to registration compelling be respondent to do what we are now asked to compel him to undo We > cannot for the purpose of this proceeding inquire into its validity Having satisfied ourselves tbat tbe I duty required by the statute to be performed has been performed nothing is left for us to do Tbe office of the writ is not to require respondent to do something not within the scope of his official authority Beyond that he cannot go and this court could not compel him to exceed the functions of his office In this cato it i was the duty oi the respondent to enter the name upon tho register and having so en tered them he could not afterwards legally erase them and i he could not then this court cannot through the agency of the writ of mandamus compel him to a Section 2 of the Act of February 22 1878 provides that i shall be the duty of the assessor of each count in person or by deputy a the time of making the annual assessment for taxes in each year beginning in i 189 to take up the transcript ot the next preceding registration list and prrpced to the revision of the same and for this purpose ho shah Visit every dwelling house in each precinct and make careful inquiry i any per son wbojs name is on his list bas I died pr removed ficm the precim or i otherwise ditquabfed as a vote of such precinct epd if BO t erase the same tbrcfroi5 or whether any qualified voter rtsides therein whose name is not on his list and if soo add tbe same thereto in tbe manne provided in the preceding section The preceding section impose upon up-on the registration officers the duty of visiting every dwelling house in each precinct and of making careful in juiry as to any or all persons entitle to vote and to ascertain upon what I ground such person claims to be a voter and shall require each person entitled to vote and desiring to be registered to take and subscribe an oath in form or substance as therein prescribed Section 3 provides that it shall be I be duty of each Assessor in parson or by deputy during tbe week com raencing tbo first Monday in June of f each year at bm office to enter on hu Registry List the name of any voter bat may have been omitted on such voter appearing and complying with the provision of the first section obis o-bis act required for voters for registration tration purposes By Section 4 he ia required one on-e completion of this list to make out a list in alphabetical order for each precinct and to deliver the Game on or before July 1st in each year with all the affidavit to the Clerk of the County Court Having performed the duties thus prescribed the functions of the Assessor essor cease and be has no further duty to perform with the Registration Lilt until the beginning ot the year 1880 and having for that year mrsued the same course be has no farther duty to perform with theRe the-Re List for 1S80 until the beginning > of the year lool and theist the-ist for 1880 ii the one from which it is now sought to have the erasure made This same act of February 22 ISiS provides bow tbe name of any person > in said Regiatration List mayo > may-o stricken therefrom and by whom it shall be done Seo 7The Clerk of the County Court shall fits and carefully pre lore 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 judge of election Sec SThe Clerk of the County Curt 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 bolding the polls one hour after sunrise and continue until sunset on 10 day of 18 famine tbe day of election Dated A D 18 Clerk of Count Court A copy of which shall be posted up at least filteen days before the election elec-tion in tbree public places in said precinct best calculated to give notice t all voters I shall also beth i be-th duty of the Clerk of the County Court t give notice on the lists so I posted that the senior justices of the peace for said precinct will hear objections to the right to vote of any I person registered until sunset of the fifth day preceding the day of eleo ton 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 beard Tbe person making the objection shall serve or cause to be served said notice upon the person objected to and shall also make returns re-turns of such service to the justice be orb whom the objection shall be eard Upon the hearing of the ASP i aid justice shall find that the person objected to is not a qualified voter he shall within throe days prior > to the election transmit a certified liet of the names of all such unqualified persons to the judges of election and said judges shall strike nob names from the Registry List he tore the opening of the polls Granting that tho issuance of this writ is withiu the jurisdictional powers of this court it is the law tbat it can be directed to an officer to compel com-pel > him to do tv mere ministerial act which the relator has a right to have done by him and as to which the officer has no discretion but it must be to compel him to do a mere ministerial net and this act must be one which by law he is required to perform and which he has refused to do Chief Justice Taney in the case of The State of Mississippi vs Johnson 4 Wal 475 has given a clear defi ition of b ministerial duty He says A ministerial duty the performance of which may in proper perormance required is one in which nothing is left to discretion I is ample a-mple definite duty arising under circumstances admitted or proved to exist and impcsed by law Are the duties required of the As sector in relation to registering per eons and preparing the registration lists mere ministerial duties 1 they are and he has refused or neglected to perform them be undoubtedly perorm could be compelled by mandamus to compeled toe deQ F pforrn tbOD ruioiTing ftion given to n mini tarial duty D as above quoted these acts do not fall within it To be ministerial nothing i8 to be left to the discretion of the Assessor In the case at bar one of the duties imposed upon the Assessor iso is-o ascertain upon what grounds any and all persons claim to be voters and he is furthermore required to make careful inquiry if any person wnose name is on tbe Hat has died or removed from the precinct or is otherwise disqualified as a voter These are all duties which require investigation estigation research and opinion discretion and consideration tie must form a judgment and act upon that judgment and it is incumbent upon him to exercise discretion in arriving i riving at that judgment He has the discretion upon judgment formed by him from the inquiries he is required re-quired t make to erase from the legislation List of toe preceding year any name that may be thereon All these acta am not therefore mere ac3 ministerial duties but are duties 8 to which the officer has a discretion and are therefore not aich duties which he can bo compelled to do through the agency of the writ of mandamus It was insisted in argument by counsel for the relator that the cur has the power by mandamus to compel com-pel the respondent to perform an act not within the scope of his authority i f his refusal to do tbe act would work an injury This court cannot impose a duty on an officer which is not within the power imposed on him by law A mandamus will not be granted to command any person t exercise a jurisdiction which that person is not most clearly and certainly appointed to and bound by law to exercise for the court will not grant inch writ except cept i clearly see tbat there is a power lodged in the person against whom the mandamus is prayed In announcing this opinion on the question of the right of this couit to mae tOe writ His Honor Judge Bore nun concurs with Judge Hunter though upon other grounds as will appear from his opinion on file Judge Emerson does not agree with tbe majority of tbe court in this right and hence dissent es to that brand of the opinion Judge Boreman die asnts from the maj uty of the court in its opinion refusing th6 writ for tbe reasons stated in his opinion on file Judges Hunter and Emerson concur con-CUr in refusing the writ on the grounds ion stated in the majority opin ionThe The demurrer is sustained MINORITY OPINION In the Supreme Court of Utah Herri tory June Term 1880 adjourned to 25th September 1SSO George B MaxwellPlaintiff Plaintiff Plaintif VL RjbertT Burton Defendant AN APPLICATION FOR MA5DAMU3 Baseman Justice delivered the following lowing opinion As an original question I have uniformly formly been of the opinion that the Supreme Court had no jurisdiction in such cages as this except in aid ot its appellate powers I have considered that the Supreme Court had no die tincH ely original jurisdiction except in cases of habeas corpus The issuing of the mandamus as prayed is an exercise of original juriidic tion In the late case of Erne line Young and others vs George Q Cannon e al this court alter ex haustive argument declared that it md jurisdiction to issue tbe writ ot certiorari which is an original writ of the same class as that of mandamus end coming to us from the sa i e source the Kings Bench I assumed that that decision was t settle tho practice and tbat in this class ol caei to which both certiorari and mandamus belong the Supreme Court would take jurisdiction I think it our duty now to stand by that decision decis-ion and not again unsettle the practice prac-tice as I deem would be done i the writ were now denied Upon the merits of tbe case I cannot can-not agree with a majority of the court I deem this to be a proper case in which to issue the writ The Legislature Legisla-ture had no authority to allow any body > to vote who were not citizens or who had not declared their intentions to become such It has never enacted that parties who had declared their intentions to become citizens might vote Therefore the registering ofli cer ia not authorized to allow anybody to vote who are not citizens The statute granting tuflrage to women allows them to vote without being citi Zeus i they are the wife widow or the daughter of a native born or naturalized citizen Buoh a provia ion is utterly void in my opinion and it is the duty of the registering officer to obey the law of Congress and not that of tbo territory when they conflict The act conferring the elective franchise upon women is unjust as granting the franchise to women pon easier terms than upon males Men are required to be taxpayers by the statute but not so with women the menare all required to be residents resi-dents but not BO the women if they be > the wife widow or daughter and all men who ask to vote must be citizens or they will be rejected but not so with all women This matter of citizenship la i important when we consider that the bulk of the population popula-tion of this territory is of foreign birth or children born in this territory terri-tory of foreign parents The statute granting the elective franchise to women destroy the uniformity and impartiality which should exist in regard re-gard to the qualifications of voters and the act which will do this is unjust un-just and ought not to be upheld I do not think that it will do to say that the requirement as to male voters which ie not found amongst the requirements of the female i voters will be nugatory We have no right to conclude that this is to The Legislature baa expressed itself to the contrary I firct passed the statute allowing males to vote requiring re-quiring them to be citizens etc I afterwatds passed the statute granting grant-ing tho elective franchise to women and subsequently it enacts the regis tiatipn law wherein it retains all the qualifications originally required as to male voter I certainly therefore bad no intention of repealing any part thereof The two laws in regard to suffrage show great unfairness and lack of uniformity between the requirements I re-quirements of male voters and those of female voters but as the Legislature I Legisla-ture io intended what authority have we to say that the one repeal the other This certainly does not exist by implication as they are statutes regarding different classes The two laws are not inconsistent further than that one is unconstitutional unjust and unfair to the body of veers mentioned men-tioned in the first and being so should not bo upheld I the Legislature Legis-lature had power to make one set of qualifications for one class of voters and another set for another clacs of voters then the two laws can stand but i the Legislature has no such power its attempt to do eo is nugatory nuga-tory and void For these reasons thus hastily stated I am unable to agree with my associate ic denying the writ in this case |