Show THE MINORITY REPORT OFFICE OF THE UTAH commission SALT LAKE CITY utah sept 25 1891 hon han john W noble esq secretary of the 1 interior washington D C G MIR kim As I 1 cannot consistently concur in all of the state statements menta made or conclusions clu reached in the majority report of my colleagues with their consent and with respect for all concerned I 1 herewith submit the following matters the legal authorization of the utah commission ana ada the transactions since the date of its last annual report repart the penal inhibition of sexual 0 senses offenses and the restriction of su suffrage farage in utah with the judicial of the constitutionality of both measures the virtual independence of electoral registrars and ejection judges in the territory adding as 1 proceed some recommendations and general reflections pursuant to the act of congress ap proved march 22 1882 the edmunds law president arthur applin appointed te d A five ve 4 persons members of one or van another 0 t h or Q of the national political parties to colw pose the commission these theae P person argot were chosen from t the he body of the loftt zone zens of as many state stat upon the alleged supposition that they would be free from the passions and prejudices which so 80 long jong disturbed the territory tibia this precedent responsive to the spirit of the statute was wa a designed to secure judicial impartiality in the exerciser the commissions commission functions 1 As asvelt 9 ing to suffrage and eligibility to office oddo S fundamental to republican govern 3 ment it could hardly have lieen other 1 wise it has haa hitherto been followed no change has occur occurred it in the personnel of the commission solve gave through appointment appointments appoint menta a to nil fill vacancies caused by death or resignation no instance of removal has transpired ELECTIONS elections have occurred in the terrt terri tory at frequent and varying intervals of time since the date of the alon alons s last report this commes frequency and variance is aa 41 attributable to to Is lack ck or of unity and uniformity in the be schemes hemes M of elections and deserves to be tl remedied not only for the sake flake of ven sentence veni tence ence and economy but to avoid con can cheapening Buff suffrage rage by its too frequent use recounting the elections according to their character and dates they are ae as follows one territorial for delegate to COB on gross gress november 3 1890 one general for commissioners locate university universia sit y lands for members to of the legislative assembly for county 1 and precinct officers for school tees and in addition pa to several a 9 elections for such trustees twenty municipal tailing falling at different dates namely november and december ath 1890 1890 and february ath march ath may ath and auguet fth 1891 total of elections 34 total of persons elected appointees all the officers charged under the law with conducting these elections and prerequisites were appointed by the tn commission in the exercise of the conferred on it by the ninth section of the edmunds law jaw the ap poin teea tees are distinguished under the territorial law by tile the foll following w 4 titter titles and consist of the following members registrar of voters 36 jL lection judges laar canvassers of election returns rei returns urns 9 total iian ii af the same number of certificates of rf election was issued by the secretary of the commission to t the e appointees eo beott foi mably to the law besides these details the commit oon eion saw that the board appointed las for that purpose canvassed all ail the returns of that ejection except those mertalo ing to the legislative assembly wh which the commission itself canvassed 7 the ninth section of the edmu edmunds oh law adopting the election ejection law of the territory as modified by that section makes both conjunctively the bula bania of the election system of the territory here follow the main provisions of the utah election law in theory the fort foregoing going provisions seem to be jealously regardful of suffrage of a right fundamental to re mutative Uta tive government how far failed in practice under udder has the ibe theory th eory will be adverted to conditi conditions ono abang ohan wa tred ed i afinder nally sequel under the territorial law and females who took and F bob bath wales males the oa oath th of electoral qualify prescribed by it became en to vote ano and sed registered ogled to be IF female suffrage rested perhaps sol sole oath proscribed prescribed so 80 far as ir on the advised there was no other am warrant fur for it the condition electoral qualifications specified in to males were that they he e oath as adults residents citizens should be lundi SO as to female the its taxpayers ad isome conditions obtained except sat me were rea u i red to at they or citizens in A taxpayers tax payers here they were the w wives I 1 ves or abe es faaea beg w where laughters of cl citizens eilks another important ant consequence fol jowe the oath it opened the registry alike to polygamous oue and the polls we men a and women and indirectly 8 sanctioned auctioned polygamy thus mi fortified it b by y an electorate whose thus approximately M bers were i doubled interferes to cut off this consequence and polygamy also congress after long forbearance proceeded legislatively on y ditt different brent and distinct lines one two KM the other civil proceeding pona a succession af pf laws were on en rosed stated the the first being the act of july 8 morrill law la next the ell ed 1 the law last the t be Edmund pw liw of march 39 3 1887 Y here are I 1 inserted sections from each tas these theme laws 4 proceeding on the line of civil civi I 1 legis egis has imposed divers lation concoy congress agress stations aff affecting acting the right ight of sut see eligibility tor for jury service to withal has substituted and P id c office veder 1 I for territorial agents in the induct of 01 elections in the territory prerequisites prerequisite a on this une line and their x the twenty fourth section of the edmunda tucker law saving the then 1 exi ting atine conditions of age residence 6 tod citizenship in order to registration auda aulds numerous other conditions operating as civil disabilities and ancor coratee w the the oath of eligi it prescribes concerning ling election agencies the ninth sect section ton odthe of the edmunds law pro awes that all the registration and election offices of every description in the territory of utah are hereby declared v vacant and each and every duty relating to the registration or of voters the conduct of elections the receiving or rejection of votes anti and the and returning of the same and issuing of certificates or other evi J denees dences of election in said eaid territory cwi be performed under the ahe existing J laws aws of the united states and of said territory by proper persons who shall fi abe be appointed to execute such offices office ii J f bud and perform such duties by a board of alve persons to be appointed by the president ident by and with the consent of 3 efte senate provided that such board shall hall not exclude any person otherwise eligible to vote from the polls on ac Count of any opinion such person may entertain on the subject of bigamy or polygamy nor shall they refuse to count any such vote on account of the opinion of the person on that subject under this section the beard of commil hsiou has haa from time to timed time appointed officers to succeed to the fu functions and titles of their predecease sors re under the territorial law namely registrars of voters j judges adges of elections and canvassers of the election returns and as the territorial law I 1 as ups has been remarked combines with this Auction in forming the election system of the territory it is needful to consult each in determining the validity of any act of the commission or of ito ita appointees recurring to the first section of the morrill law and to the eighth section of the edmunds law it falls in the order of the discussion to state that grave questions of constitutional law have ha deen raised upon each first whether it was competent to congress to penally inhibit plural marriages inasmuch as some of the mormons cormons Mor mons at least hold bold such marriages to be a tenet of their religion second whether it was competent to congress to abolish or abridge as to such prisons the right of suffrage as they had theretofore enjoyed it under the law the first question ca came me before the supreme court of the united states the court in considering it among other things said in our opinion the statute is within the power of congress it is constitutional and valid as prescribing a rule of action for all those residing in the territories or other places over which the united states have control I 1 this being so the only question which remains is whether those who make polygamy a part of their religion are excepted from the operation odthe of the statute if they are then those who do not make polygamy a part of their religious belief may be found guilty and punished bed while those who do must be acquitted and go free this would be introducing anew a new element into criminal law laws are made for the government of actions action 8 and while they cannot interfere with mere religious belief and 0 pinion opinion they any with practices so here as a law for the organization of society and under er the exclusive dominion of the united states it is provided that plural marriages shall not be allowed can a man excuse his bis practices to the contrary because of his bis religious belief to permit this would be to make the professed doctrine of religious belief superior to the laws of the land and in effect to permit every citizen to become a law unto himself government could exist only in name under such circumstances 1 98 U S p 98 et sequitur the second question came before the same 0 ourt court in 1884 in the case of murphy vs ramsey and others in considering it the court had occasion to note the distinction between criminal penalties and civil disabilities also to recognize the natural as well as the legal capacity of a polygamist to cease to be one among other things the court said the counsel for lant in in ar argument cumi nt seems to question the COP constitutional power of Cou congress gress to pass the act so far an a it abridges the right of electors in this territory under previous laws but that question we think is no longer open to discussion it has passed the stage of controversy into final judgment upon this construction construct iong the statute is not open to the objection that it is an ex post facto law it does not seek in this section 8 and by the penalty of diff ranch isemena to operate as a pun ashment upon any offense at sl it is ia not therefore because the person has baa committed the offe se of bigamy at some previous time in violation of some existing statute and as an additional punishment for its commission that he is dis ata franchised by the act of march 22 1882 nor because bebau he is guilty of the offense as defined affined and punished by the terms of that act but because having at some time entered into a bigamous or pol polygamous relation by marriage with a second or third wife while the first was living he still maintains it and has not dissolved its although for the thee time being be restricts actual cohabitation to one the disfranchisement diff ranch isemena operates on the existing state and condition of the person and not upon a past offense lense of it is therefore not retrospective he alone is deprived of his vote when he h offers to register is the actually cohabiting ha with more than one woman is not prescribed as a penalty for being guilty ot of the crime and offense of polygamy fur for as has been said that Off offense ellSe consists COUSIS tS in the fact of unlawful marriage and the prosecution against the offender is barred by the lapse of three years the words bigamist and polygamist evidently are not used usei in the sense of describing those who entertain the opinion that bigamy and polygamy ought to be tolerated as a practice not incompatible with the good order of society the welfare of ef the race and a true code of morality if such there be because in the proviso or of the lintn tec reo tian 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 il U 8 P et sequitur following the authority of murphy vs ramsey and others chief justice zane as justice of the district court held at salt bait lake city said in the cause of the united states vs bennett that athe the law did not apply to those who went into polygamy before there was a law against it but to those who were actually in the relationship A man must actually have a plurality of wives to be a polygamist rho fhe fact 1 of f C cohabitation ta tion to is not a f feature ea in determining the meaning of the term A man ceases to be a polygamist when he fully and finally terminates the relationship the way to accomplish that is not hot pointed out can the relationship exist when the parties have not only ceased to cohabit but have separated in good faith that is does it exist because of the former relationship to maintain a relationship requires some act of the mind to continue the condition the supreme court holds to the idea that there must be a recognition the question of good faith will be for the jury to determine the section regarding amnesty or pardon does doers not eem leem L to have any connection with the question the parties may obtain amnesty and yet continue the polygamous relation the conclusions to be drawn from the provisions of the statutes quoted and from their authoritative exposition and application by the courts seem searn to be first that no part of the penalty annexed to any sexual offense committed in violation of those provisions provi aiona second that such penalties consist solely of flue fine and imprisonment or of both third As AM a consequence that thai disfranchisement Is ia merely an electoral regulation and exclusion fourth that the punishment inflicted for inhibited criminal acts extends only to such persons persona who being otherwise eligible to be registered had entered into the polygamous relation and actually continue it or to whomsoever although protected by lapse of time from prosecution ution as a polygamist or bigamist aill cohabits or associates or bigamously with persons of the other sex or to whomsoever has been convicted of any inhibited sexual offense and has not been am or pardoned on the contrad contrary y I 1 whoever is not so dis franchised being otherwise eligible the thereto ruto may be registered gist ered and vote fifth any person actually maintain ingabe bigamous or polygamous relation at the time when he offers his bis name fa for r registration is by such relation dis tied to be registered or to vote or hold office or perform j jury u ry service and that although he may have formed such reli tiou before there was any law against it proceeding on these conclusions of law and tact fact judicially determined the commission has from time to time prepared circulars advisory of them and caused them to be printed aal to issued to the registration and election officers this is an important practical question answering it we are gratified to say that generally they have been especially in the rural districts while we regret to say that they have not always been irr in somer some of the larger cities Particular particularly ll in the latter not infrequently ly according to what seems memo to be trustworthy reports registrars have denied registration to eligible persons or have stricken the names of such persona sona from the registry simply upon the ground that they had bad at a former time contracted plural |