Show JUDGE boreman ON THE TOOELE CASE dissenting OPINION in the supreme court ot of utah jan january a ry term 1879 F M lyman respondent spon dent vs enoch P F martin ct et al at appellants pel lants appeal from from the third district court boreman justice delivered tile the following opinion dissenting from froia the majority of the court the respondent applied to the i district court for a mandamus to compel appellant martin C gierk lerk of i the county court of tf tooele thoele county and the other appellants as members odthe of ithe said court to examine and canvass election returns and declare who were elected A demurrer to the affidavit treated as a complaint I 1 was overruled and a demurrer to he the answer was bus eus the appellants electing to stand upon their answer the court below granted the peremptory mandamus and thereupon appellants brought the case to this court the right tight to the mandamus must clearly appear under the forme former r practice the alternative writ was regarded as the foundation of all subsequent proceedings in the case and resembled in this respect the declaration in an ordinary action at common law it was necessary essery that upon ila ita face a clear right to the man mandamus lamus ismus be shown and the toe material facts on which the tha applicant relied bo be strictly bet ao so that they may bo be admitted or traversed by the return great strictness Is requisite in this respect highs highs extraordinary legal legai J by tacit consent the affidavit affa davit has be been entreated treated as the complaint and the first pleading in this case this is in accordance with the rule as laid down in california and also recognized by this court in a former case people vs supervisors 27 cal chamberlain vs warburton I 1 utah the thia affidavit as a complaint therefore is to be treated as the sia sla alternative tema ter tec native ulve tive writ formerly was it is a well settled rule tule that a demurrer reaches back backe to the first fint fault committed by either party and ana on demurrer to the return or answer it Is s therefore competent for the defendant to avail himself of any material defect in the complaint or affidavit highs extraordinary remedies 1493 state vs mcarthur 23 wis wib goulds PI pl ch 9 sec bee 36 1 noahs PI ath ed p aw people vs booth 32 N Y and aud if the answer be obnoxious io to a demurrer yet if the complaint is defective in substance judgment ia is properly property given for defendant id when therefore the demurrer jin in this case is interposed to the an iwer this demurrer reaches back to the complaint or affidavit aadot aj A claimed that chat the affidavit is defective in substance lat the complaint the tha affidavit does not allege or show that it was the duty of the appellants to do the various things which it is asked that they may be compelled to do rhe the simple allegation that the appellants pel lants after demand refused to lo 10 certain things as required by lawI law 3 is snot not sufficient lelent what law Is referred to some statute of the united states or of the TerrI territory tory tors rj or dr does it refer to the common law rhe allega allegation tion tiou should be definite hind eind the law should be te designated and I 1 do not think that a simple designation even ot 06 the law would be buff lelent sufficient unless sufficient fent was lil ill alleged eged aside from this to sustain the relator rela Kela tors torb r case Elig highs hs ex rem the affidavit should have contained all of the facts which go to constitute the luty july and which induce the obligation on the part of the defendant to perform the act sought to be performed id 2536 J in this case now before us the affidavit contains none ol 01 the facts lulng to show that it la Is the duty of ippel lants lanta to do the things which hey bey are now asking the court to them to do it does not ven refer to any statute and it annot be claimed that the man amus should be granted in antici lation n of a supposed omission of aty an actual omission 0 of f duty aust be shown high ex rem kern 12 and cases cited there id 39 nd 41 for this failure therefore he ground for a 1 mandamus does lot loi appear ad but if it be assumed that Is alleged as to the duty of 0 he appellants in the premises by he simple pimple recital as required by aws aw and the law refers to an act dovd ro ding aa for the registration of oters s etc approved febra ry 1878 we then must consider hether bother that bon boa be a valid law lawas as hat Is one ono of the points raised and upon in this case me the registration act referred to broides thattie thal that the assessor asse asbe ebor saor shall ahall ag as ertain upon what ground such erson enson ereon claims to be a voters voter and be hall require each esch person entitled en titled 0 desiring to be registered 31 take and subscribe in substance he following oath or affirmation territory of Utah goun youn county ty of Bs ss f being first duly sworn lepose impose and say that I 1 am over 21 tears ears of aads aae age and have resided in he territory of utah for six i months and in the precinct of one ona month next preceding the date hereof and if a male am a native or naturalized as the case may may be citizen of the united states and a taxpayer tax payer in this territory or if a female I 1 am native tive bom born or natu naturalized rallied or the wife wife 99 widow or daughter as the case may be of a native born or naturalized citizen of the united states and the same section further provides that acupan upon the tho receipt of such affidavit t the assessor as aforesaid sha shall shail 1 I 1 place the name of such voter upon the tiia registration list of the ahe voters of the county sec sec see 1 this statute requires that each person entitled to vote and desiring to be registered shall take this oath if his or her name be not upon the registry list his or her ballot shall be rejected bec bee bee see 13 jt it avails a party nothing that he is entitled to vote he will not be bo allowed to vote unless he be registered and will not be allowed to register unless he take that oath his right and the right of every citizen to be registered and to vote depends upon his taking the oath every part of that ree reg registration jat fat ration act is pivoted on the oath if the oath falls the whole registration act falls for there is no provision made for any registration that does not depend upon that oath the question then for consideration is whether the oath be valid or not our organic act our charter provides that citizens alone can vote bee seo see sec 6 5 of the organic act if this provision has since been modified by united states statute U S IL S 2 1860 giving the legislature gi slature power to allow aliens to vote upon declaring their intention to become citizens the principle is not changed in regard to the oath for our legislature has not availed aval itself of this his modification and has never passed any act allowing aliens to vote upon declaring their intentions sto to become citi citizen zem the legislature cau can have nave no power to do that which the laws lawa of say bay tuo tue shall not do there might be sometime a disagreement as to what the legislature gi slature might do when the matter was no not i t by law of congress forbidden but there can be no possible disagreement when the power is in express words denied to the legislature the law of con Cou congress gress press is our constitution in the matter the revised statutes of the united states sec 1860 provides that the legislatures of the territories may fix the qualifications of voter voters subject nevertheless to the following restrictions upon the power of the legislative assembly namely bof ecy a and the first restriction is that the right of suffrage shall be confined to citizens and those who have declared their intention to beco this is in effect a constitutional prohibition upon the legislature and if the legislature attempt to extend the right of suffrage beyond these named limits their action is nugatory the legislatures gisla tures as I 1 have said have nat not availed themselves of the power to extend the right ol 01 suffrage to those who have declared their intentions to become citi eitl zens therefore no person male or female can vote in this territory unless such person be a citizen the conclusion is to my mind ir and I 1 can see no possible way to avoid it the territorial statute prescribing the qualifications of voters uses language to which that of the oath 1 in n the registration law exactly cor responds the assessor then in ascertaining who are entitled entitles to vote s looks to the statute and the language of the statute and that of the registration oath being the same it follows that the persons possessing the qualifications specified in the oath and who will take the oathy will be allowed to register and to vote the oath excludes all male persons from voting who are not na tive tivo born bornor or naturalized yet it allows female persons to register and vote who are neither native cornnor born nor li naturalized 11 the evident intention was wits to evade or ignore the lavir law of congress if this were not the purpose why not stop with the words Ic native born or naturalized when referring to female persons as was done w when hen the language referred to male per sone the daughter of a naturalized citizen is not made a citizen by her fa fathers therla naturalization any more than a son unless she was under 21 years of age at the time of her fathers naturalization and yet this territorial statute and oath allow I 1 her to be registered and to vote she has haa no more right to that privilege than a son and the legislature had no authority to grant it to either this thia cannot be deemed an unimportant matter when we re mem mein berthab berthat two thirds or nearly so of the population of this territory according to tho last c census were of foreign birth or the children of parents who were of foreign birth this act without any restrictions or limitations allows the wives of citizens to vote yet all wives of citizens are not citizens the revised statute of the united states see eee sec 1994 saye any woman who is now or may hereafter be married to a citizen of the united states and who might herself be lawfully naturalized shall be deemed a citi citizen zen zeb 11 could a woman who has been a resident of this country less than five years be Jaw lawfully fUlly naturalize aliz ed if not then the fact of her being a wife will net not make her a citizen I 1 am not unmindful of the limitation made in kelly keily vs owen 7 wall whereby the restrictive clause in the last section referred to as it then stood only limited the application to free white women in that case the limitation hung upon the words under existing laws and those words have been left out of the later statute and not only eo so but the limitation has also been expressly by sec see 2169 of the United states revised statutes which provides that the naturalization laws shall apply to persons of african birth or descent if the hook upon which the court in that case hung bung its exception or qualification has been stricken out and aiso also expressly by statute and yet the clause shorn of those qualifying words under ex existing sting laws be allowed to stand and be embodied in the revision of the jaws laws we must conclude that there was some i other othet mauer matter sought to be reached I 1 other ilja aary P jaza loru lorn lerna i a free tree white while woman inthe jn the casere cacere case referred to meily kelly vs owenj owen the parties patties to the action had all been residents of this country five years and hence no question on that point did or could arise the ruling there simply resolves itself into this that all the parties being of five years residence then and in that case the only restriction was that of color an examination of the decision will fully bear out this view in the case of minor vs happersett 21 wall the supreme court of the united states dwell at considerable length upon the subject of native born women being citizens and refers to the fact that the government has also made provision for alien women to become citizens it refers to the same section as above given to show this and there is nothing whatever in the opinion in that case not in harmony with the view I 1 have given odthe of the section the conclusion to my mind ia Is that no married woman of foreign birth can be allowed to vote in this territory by reason of such mar ariage until she bas baa been a resident of bf i this country for five years the ti time tn e required for naturalization of males otherwise the law would not be ve uniform and would be unjust and inequitable and in violation of the states statutes our constitution in such cases congress I 1 g ress n ever never contemplated such inequality the registration act referred to allows widows widow ss of citizens to vote when all widows are not citizens for the same reason that all bivs cannot be such As to the citizenship itself of is this exception that if their husbands had duc declared lared their intentions to become citizens then the widows would be citizens upon taking the oaths prescribed by law aw rev st of U S sec zige but this exception does not apply here for tue the reason that a widow doea does not have to swear that she is a citizen nor show that she sho has taken the I 1 prescribe I 1 oath the registration oa oat ont hnot only allows wives 19 widows aud daughters to vote who are not citizens but it on the other han hand di excludes men from voting who are citizen A male pert on of foreign birth who when his father was naturalized was under twenty one years of age is by the act aci excluded from voting unless he be naturalize aliz ed himself it requires all male persons persona to be native born or naturalized zed in order to vote votes notwithstanding it allows female persons t tty yote without being either elther naturalized or native born U this territorial act ilot not only confines the male voters fo to those who are native born or naturalized but it also imposes an additional burden upon them that is not imposed upon we the female voters the male voters are required to be taxpayers tax payers pay ers era such a discrimination ia is unjust and unreasonable the court courts in the majority opinion eo so holds but says the oath is nug mug nugatory atory only to that extent the court as I 1 think has no right or authority for doing this it is not an analogous instance to that of a statute which con contains taini various grants not dependent upon each other part of which might be stricken out and the residue stand and in giving of those stricken out the legislature had transcended its authority but it might be mere more analogous to a grant based upon several condl conditions all of which are to be compiler with before the them grant accrues here several things have to be sworn to before the party applying will be allowed to register and vote and there is no authority to register such person son if any one of those things specified are left out therefore if 11 he cannot swear to every one of the matters required by the oath bath he is excluded from registration and voting his right to vote being based upon an bath eath of specific provisions the court cannot say that he cannot be registered and vote by taking part of that oath the oath as given and as a whole must be taken if one of its provisions falls that which remains is not the oath required for registration and any attempt by the court to change the oath and authorize a different one is in my judgment judgments simply legislating but I 1 have I 1 think shown the oath in ip question is not defective in merely ono ona particular there are defects in almost every branch of it defects that are incurable by this or any other court the branch blanch up apo plying to wives is thus thua |