| Show WOMEN IIAVflF i RI HT TO VOTE 1 J Continued from Page I I lot the Intention of Congress and such an intent is not to be inferred from any doubtful language because it would be < I tho exercise of a power of such doubtful propriety and validity that any court would hesitate to believe that Congress gress intended to exercise it Congress g has the right and exercised their nr i to say that certain persons should be en ttled to vote upon the adoption or rejection rejec-tion of tho constitution This is going auito af > far as i seems to me that Congress Con-gress under any croumstances is authorized author-ized to go To hold that they may go go further and provirie for the qualifications of electors of strite officers at one election elec-tion whom they may select would bo equivalent to holding that Congress would have the right to prescribe like qualifications qualifica-tions at any further or future elections if they saw fit I do not think so far as the election of state officers is concerned that it would be within the power of Con cress to determine who should vote for I them at any election A much nicer question however arises I as to whether or not Congress has prescribed pre-scribed the persons who may vote upon tho adoption or rejection of the consti tution There is no question but that bY the second section of tho enabling act Enabln3 Congress has provided that all male citizens citi-zens who have resided in the territory for ono year prior to November 18M shall bo ontitled to vote on the ratification ratifica-tion or rejection of the constitution and it might be said that this was Intended to limit tbo number of persons who should vote upon the ratification or re jection ol the constitution if this were tho only language upon the suoject but sectlou four of the enabling act provides that at this same election for the adop tion or rejection of the constitution the Qualified voters of the proposed state shpJl vot edirectly for or against the constitution Counsel upon both sides cjncedo that so far as tho election for the ratification or rejection of the constitution con-stitution is concerned that Congress liact tho right to fix either directly or Indirectly rectly the class of persons who should vote at that election and I do not think think I Congress has attempted to do so I IS quite evident that as to one class Congress Con-gress directly singled geeol l pointer them out by legislation and it would seem also to be clear from section 4 of lie enabling act that they intended that another class whom they did not attempts to designate directly should also be al lowed to vote at that election I Is claimed by the defendant that even IT it be true that the qualified voters men tioned In section 4 were to b designated by tho action of the dessat1 acton constitutional convention con-vention itself that still by the proviso to section 11 of the schedule the constitu tional convention has designateij the same class that are mentioned in sr < ton 2 of tho enabling act and that no others are therefore entitled to vote Tho canon of construction that the expression expres-sion of one thing is the exclusion of time tla otbers is relied upon in this instance and it is claimed that the constitutional convention having declared that all male citizens over the age of twentvono yearn wfto nave resided in the territory for ono year prior to such election are hereby authorized to vote for or against time adoption of this constitution and for the state officers herein provided for that they have excluded all other classes Tho difficulty about this argument is that the clause just cited occurs in a proviso to section 11 The maxim relied upon as I understand it never is applied to a proviso pro-viso If It were it would have the effect to make a proviso repeal the general clause to restrain or qualify or explain the preceding matter and it is confined to what precedes It unless it clearly appears to be intended to apply to some other matter It Is construed in connection with the section of which it forms a part and it is substantially an exception to it See Sutherland on Statu tory construction sec 223 In the case of the Savings Bank vs the United States 10 of Wallace page 227 speaking of the office of a proviso in that case where a construction was claimed very much like the one claimed bv the defendant here the court says The broad construction of the proviso contended for makes it plainly repugnant to the body of the act and it is there fore inadmissible In the case at bar section 11 of the schedule provided generally for an election elec-tion for the adoption or rejection of tho constitution and for state officers fixes the time that It shall be held the manner man-ner in which it shall be held and that returns shall be made but fails to state what persons shall vote at such an dee tion If left without anything further it would follow naturally that all persons per-sons qualified under the constitution to vote would constitute the class of perSons per-sons entitled to vote at that election and none other but the proviso Is added for the purpose of adding another class to the electorate provided for by the con stitution and to hold that the proviso excludes all other classes as above stated would be to hold In effect that it repeals the general clause which is a > construction that is inadmissible Sec tion 14 of the schedule provides that the election shall be held by the qualities voters of the proposed state There was much said in the argument as to the meaning of the term qualified voters of the proposed state which occurs both in the enabling act and in the constitution It is contended on behalf of the plair tiff that it refers to that class of persons per-sons who are qualified according to the grant of the electorate franchise con tamed in the proposed constitution Itself and on behalf of the defendant that it refers to those persons living within the territorial limits of Utah who by the existing laws of the territory and of Congress Con-gress are qualified voters It seems tome to-me that time term clearly refers to those cersons who are by the constitution of the proposed state designated as elec tors Looking at the entire scheme for too change of government it resolves itself into this that Congress has provided xe the organization of a convention who shall frame a constitution and submit 1C to some class of persons for their adop tion or rejection Congress it is true hag stated that certain persons must be permitted per-mitted to vote at that time and that certain other persons are also permittr in vnte to 1a 1 4i tutional convention It would seem quite natural that where a social compact fa the nature of a constitution is to bo submitted to persons for their adoption or rejection that it should be submitt to all those who will be called upon to assume the duties and responsibilities of electors under it As is well said in the case of Blair V Ridgley 41 No 177 the people of the state in a political sense are that portion of the population upon whom political duties and responsibili ties are devolved In the state of Ltali as it is to bo organized tinder the proposed pro-posed constitution the political responsi bilities and duties are to bo devolved upon both men and women If they possess pos-sess the requisite qualifications of citizenship citi-zenship and residence It would seem therefore naturally that that class upon whom such responsibilities and duties are to be devolved should be the class to de termine whether or not they will accept it I think this was the design of Congress Con-gress in providing for the holding of state election at the same time as the election for the adoption or rejection of the constitution It was for the purposes of that election considered that the constitution con-stitution should be treated as in force and it must be so treated We must go to the constitution to de termine who shall be elected to determine deter-mine what their qualifications shall be to determine from what particular parts or portions of the geographical area oC the state they shall be selected to determine deter-mine their tenure of office to determine the compensation to determine In a largo manner their duties and it seems to mo naturally to determine who shall elect them In other words the question as to who shall be elected what they shall bo elected for and who shall elect them are all to be determined by the reading of the constitution itself It is true by time proviso of sec 11 of the schedule the constitutional convention has seen fit to say that certain persons who do not possess pos-sess tbo constitutional qualifications oC electors shall be permitted to vote for the first state officers I am not required to determine whether this provision is a valid one or not It is sufficient to say that the plaintiff in this case possesses all of the constitutional qualifications that is not denied and if I am right as to the test by which weNare to determiner who are the qualified voters of the proposed pro-posed state of Utah then It seems to mo clear that she is entitled to vote both upon the adoption or rejection of the constitution and certainly for the dee tion of state officers of the proposed state of Utah This conclusion necessitates the issuance of a peremptory writ of mandate and the order will ba that a peremptory writ issue requiring the de fendant to register the plaintiff as an elector of the second election precinct of Ogden City |
