Show THE TOOELE ELECTION MOTION CASE DECISION OF THE SUPREME couri COURT in the court of the territory ot of uth utah january term 1879 F M lyman respondent vs enoch F martin ot et al ELI a appellants pel lants appeal from the third 1 district court this wag was an application by bythe bytho the respondent to the third district court for a writ of mandamus nian damus to compel the appellants tho the baid eaid martin being county clerk and the other defendants constituting the county court ot of tooele thoele county to canvass tho the returns of an election held in that county on the ath day of august 1878 to fill various offices the affidavit shows that the respondent was a candidate voted fsr fir at that ejection to fill each of the following offices viz that of representative from said Eald county to the tho next legislative assembly Am embly and county recorder ile lle corder of said county that none fione of the defend defendants ants auts were publicly known to have been candidates voted for at said elect election ion ioD that the returns from all the precincts were in the possession of said martin marlin mar tin and members ra of the county court on the ath dakof august 1878 that all the ballot boxes were securely sealed or locked that envelopes securely and safely sealed containing the lists required by law to be kept addressed to said bald clerk from the tho precincts named were then and there in the possession of said clerk that on the day last named tiie tile respondent demanded of the appellants that they thoy examine baid said bald returns and canvass the same as required by law and that they then and und there refused to examine and canvass canvass said sald returns or any of thema them either at t that time or at any time etc an alternate writ was prayed for which was granted the appel lants ants demurred to the writ writs and upon its being overruled they answered the respondent demurred to this answer the tle demurrer to the answer was sustained and a peremptory writ ordered the appellant electing to stand upon this answer they now pros prosecute ecate thib this appeal 0 tile the first exception in this appeal relates to the overruling of the appellants demurrer to the alternative writ the demurrer was based upon two grounds lat that at the aate dato of the election there was no election law in force in support of this ground it is urged that the legislative assembly in passing an act approving and adopting the compiled laws of utah re enacted the old law subsequent to the passage of the election law in question and was therefore a repeal of the latter by implication tile the only evidence in support of this proposition is the fact that both acts were approved by the governor on the same day and aro arc in the same balne message from him notifying the tha assembly of their approval no inference can be drawn from this that the tho act not in relation to the compiled laws was passed subsequent quent t to the passage of the act in relation to elections and even if it should positively appear that the act approving and adopting the compiled laws was passed a day or any number of days subsequent to the passage of the election bill it would not have the effect claimed for it by the appellant the words of the act referred to are as follows foll be it enacted ac that the compiled laws of utah publish ed under the auspices of the special committee are hereby approved and adopted A committee had been appointed by the preceding legislature to compile and publish the laws then in force in the territory that committee had performed the duty assigned them and the result of their labors was then before the legislature and the act passed simply amounted to an approval of their work it is plain that the legislature did not intend that it should have any other or further effect and in law it did not it was not a revision of the law that had been authorized but a compilation only if tho committee had included in the compilation any provision not found among the old laws one which mud had never been passed by the legislature Legia lature the legislative action above referred to would not have given it any force forb or oi validity AS a law I 1 the second ta ground round of demurrer a was that the election law approved feb 1878 under which the election was held was never passed 11 what is meant by this is that the bill was never passed BO so as to become a law to sustain this proposition counsel relies upon the following facts gleaned glea ned from the journal entries of the t two w ow houses the bill will was first passed by the assembly and arid sent to the council where it was passed with certain amendments on its being returned to the assembly that body concurred in all the amendments made by the Council Counell except one upon the disagreement as to that a committee of conference was appointed the committee agreed to certain amendments to sections is 8 sand and 9 of the bill and on the report of the committee on the part of the assembly that body concurred in the proposed by the conference committee the bill being then men sent to the council that body also adopted the report of the committee and returned the bill to the assembly for enrollment it having originated in that body the next entry in relation to this act 10 9 the notice received of its approval by the governor in connection with the act acton in relation to the laws counsel i forthe ithe fo forthe appellants claims that after r tho adoption of the amendments agreed upon by the conference committees committee the bill as amended should again have ha v e been beeb seen jeen passed by both branches of the legislature in this we think he is misi mistaken aken whatever may be found to io the contrary in works upon parliamentary proceedings such is not the af usual lual jual custom in legislative bodies in looking over the legislative legisla tWe journals u of many of the states to w which h fell we have had access as well as the proceedings of congress it beems seems tobe to be the uni universal versal vereal custom when there is a disagreement as to amendments to a bill passed by b y both houses which has been settled by a conference committee to concur in the amendments recommended by them but it ift is claimed on the part of the respondent that the act in question is found among the laws of the twenty third session of the legislature published by authority as one of the existing laws of the territory and la Is also found in the records of the secretary authenticated arid anid approved in the proper manner and that these facts raise a a strong trong presumption of the existence and regular passage of the law jar and that the burden was waa upon the appellants pel lants to overcome this presumption and show the contrary this thia proposition is correct and waiving the question raised and discussed upon the arguments as to the right to look into the journals a question which we do ant decide the journal entries produced not only fall to rebut this presumption but affirmatively show that all the necessary steps stops were taken resulting in the regular passage of the act there was no error in overruling the appellants pel lants demurrer after the demurrer was overruled edi edl tho the appellants answered and the respondent demurred to the answer answers on the ground that thai it did not state facts sufficient to constitute a defence which was sustained and a peremptory writ ordered the appellants elec elee tingas aa before stated to stand upon their answer the second exception in the ibe record relates to the action of the court in sustaining this demurrer and the tho first point ent made under this exception Is that this demurrer reaches back to the first defect in the pleadings and if the plaintiffs pleading la Is defective in substance Judg judgment ment munt should be given for respondents spon dents in the demurrer to the answer this proposition Is undoubtedly correct but the deduction that counsel desires to draw from icare it are not so clear viz that the affidavit is one of the th pleadings in the case aa as his hia whole argument on this point is confined 0 o what ha he deems to be defects in the affidavit the alternative writ and the return thereto tb areto are usually regarded as constituting sti the pleadings in proceedings by man mandamus dainus the writ standing in the place of the declaration or complaint complaints and the return taking the place of thep the plea piea leaor or answer in an ordinary action at law state vs gracey gracei 11 nev nov but if we concede that the affidavit is a pleading in the case and it ia is that and not the writ which is to be answered how will the case stand eland then counsel for the a appellants lants claim that there are several vital defects in the affidavit because it is not shown that it is the specified duty of the defendants to canvass the vote and the election law of 1878 does not enjoin upon them any buch auch duty section is 18 of the act provided pro videe that th chaton atOn on receipt of the ballot boxes and returns of elections the clerk of the county court in the presence of at least one ono member of the court court who is not publicly known as a candidate voted for at such election shall break the seal of the returns and all candidates may be present as provided in section 15 of this act and said clerk and member or members of the county court shall carefully examine the returns and it no irregularity larit y or discrepancy appears therein a affecting the result of the election of any candidate they shall accept I 1 baid paid returns as correct 11 and then follows certain direct directions ions iona as to what shall bo be done in case the night right of anyone voted for for any office is in any way wy effected and in section 19 direction directions bare aare are given how to proceed in case cabe of any disagreement in the returns in regard to the num berof votes cast for any territorial of nider officer or any officer whose election is effected by the votes of more counties than one and proceeds I 1 after atter the of the canvass said member or members berrand bersand and clerk odthe of the county court shall declare the result thereof and the clerk of tb the e county court shall immediately make out and transmit a certificate of election to cac cae ench each h person elected to any precinct or county office there would seem to be no room for doubt but that the statute plainly and specifically points out the duty of the tho clerk and mern members bers berb of the county court and just as plainly enjoins upon them the performance for mance of that duty the preci preel precise ae language of the objection Is that it is not shown that it was the duty of the appellants to canvass the cote vote neither in the affidavit or writ is this asked or commanded to be done but they are arb asked and commanded to go forward and canvass tae the reloj returns ua in the performance of that duty it may become necessary to canvass the votes in the manner pointed out by the sta statute lute luke the second Is Js that the me election law is void for want of uniformity in this a different qualification is required of male citizens from what is required of females Y the provisions of the act aimed a at t by the above objection are found in the affidavit which is required of persons persona before registration the affidavit is 14 as follows ill 1 ili I being first duly sworn depose and say cay that I 1 am over twenty one years of age and have resided in the territory of utah for six months and in the precinct of one month next preceding the date hereof and if a male am a native born or naturalized as the case may be citizen of the united states and a taxpayer tax payer in this territory or if a female I 1 am native born or naturalized 9 or the wife widow s or daughter as the case may be of a native born or naturalized citizen of the united states ap upon the argument I 1 understand that the only objection urged to this act was to the clause requiring that males should be taxpayers tax payers which qualification was not required of fei fer females nales that here was a burden or qualification superimposed upon one class of citizens citizen and not upon the others and hence the whole act was void and we WO are asked to declare it so this we ought not to do nor deoh dech declare re any portion of it void unless some plain provision of the constitution or laws of congress are violated SEC 1860 of the united states revised statutes gives to the legislative assemblies of the territories howerto to prescribe pi the qualifications of voters subject however to certain restrictions among which are that they must ie le citizens of the united states oyer twenty one years of age and that there shall be no denial dental of the elective franchise on account of race color or previous condition of servitude the provision in question is not in violation of the above requirements nor of any express provi rions of the constitution or laws of the united states while the exercise of the elective franchise is a privilege rather than a aright right yet all regulations upon that subject must be reason ab es e uniform and impartial cooly const lim laim p any provision w which ich ieh should impose upon a particular class of citi zens conditions and requirements not required of all others is void american law liaw of elections bee sec 8 this the provision in question does and is in violation of the above mentioned and well settled policy of the law although not in conflict with any statute Is the whole abt act therefore void we think not it is well settled that one portion of a law may be valid and another portion invalid and if it one portion is invalid the provisions of that part may be disregarded while full force and effect may be given to such sueh aa as may not be void vold banks vs owens 2 peters people ex rel vs ball 46 N yi Y 69 W the above provision requiring that males should B h ouid be taxpayers is the obnoxious portion striking out that as void and the balance of the act Is in no wise affected there Is nothing connected with this or dependent upon atas it as to prevent this being done cooly const lim liim p but it is now claimed that here there Is a further objection to the act which is covered by n made and that is that the provision requiring a female to swear that she is the wife or daughter of a native born or naturalized citizen might permit per persons solis not citizens to vote As the wife jon sor or widow of a native born or naturalized citizen is a citizen tile the objection must refer solely to such as are daughters of naturalized citizens if I 1 understand the reason for the objection it is that a person parson maybe the daughter of a naturalized citizen and yet not herself a citizen or it i her father was naturalized after the daughter arrived at the age of 21 years and yet this act attempts to give buch such the right to vote ido I 1 do not so understand its provisions it will be borne in mind that the act nowhere attempts to fix the qualifications of voters that is nixed fixed by other provisions of the statute not found in this act and not a altered ter amended or repealed by it the declared object of the act in question aa as expressed in its title is to provide jor the registration of voters and the manner of or coundi conducting acting elections and in its very first ficat section assumes that the qualifications of voters are nixed fixed by bome some other statute for it Is id there provided that the officers who are charged with the duty of registration shall I 1 carefully bare fully inquire as to any and all pers pera pris pils entitled to vote s and shall ahall ascertain upon what ground such person claims to be a voter and he shall require each person entitled to vote and desiring to be registered ac to take the oath above quoted bo so that before they can take the oath and be registered |