Show THE TEST CASE chief justice huners Deel the woman suffrage anin alco act hallil in every particular at saturday sat afternoon after nooD a decision was rendered in the third district court in the case brought to test the validity of the utah statute Stat itte conferring upon women the elective franchise the attorneys on bath both sides were in court and ft vt lar large e number of persons interested in the til e case were present following in full is the OPINION OF or amr JUSTICE rt uxTER in the matter of the application of florence Weste westcott ott for the writ of mandamus man dimus directed to william showell deputy de uty registrar of voters of the first precinct cecin et of salt lake city county of salt lake and ter of utah the applicant florence L westcott asks fur for the mandamus manda mils and presents her affidavit in which she sets forth that she is a female citizen of the united states native born and over twenty one ne veara years of ape age that ahe the is the wife of edward westcott who is a native born citizen of the united states that she ix i a reside resident nt of the first precinct of I itji tit lake city salt lake county and aud territory of utah that she has resided over two t ivo years in said county and more than six months last past in said first precinct that on the he 11 th day of september A D 1882 pursuant to the natice notice of william showell the deputy registrar of voters in an and d for said F first arst precinct duly commissioned qualified and acting ak as such registration officer in and d for said pre and then and there before him she offered to register as a voter according to law and offered to take the vote prescribed by the statute st acute of utah applicable to women or female m ale voters and also the oath prescribed by the commissioners of election for the territory of utah and offered to prove that she possessed all the qualifications required by the act conferring upon women the elective franchise parsed by the governor and legislative A assembly of the territory of utah approved february 1870 and that she was not disqualified by reas reason son of anything in the acts of congress referring to elections anil and electors in this territory passed and approved march 22 1882 she further in said affidavit elates states that she possessed all the qualifications ed und under erthe the territorial act aforesaid and that she did no act or acts contrary to the provisions of said congressional act or any act of congress that she did at the time and ai pi place 11 aforesaid demand of and from the said william showell that the oath be administered to her and said taken and that said registration officer should enter her name on the list of persons qualified to vote at elections in said precinct that wm win showell as such deputy t and registration officer th n and there Kere refused to administer said oath and refused to receive said proof and refused to regi steer her name as a voter on the ground as he alleged that there ia is no valid authority authorize author authorizing izu lg women to vote and that there ia is no valid authority for the registering of women as voters in this territory she further swears that by said action of BI sad id registration officer she will be deprived of the right to vote conferred conf c da f upon pon u her by the statutes of utah unless the aid said registration officer be compelled b by y the court to administer eaid said oath and take tako caid paid proofs upon the filing of this affidavit in the clerks office an alternative writ of mandamus was issued in the usual form and the case set down to be e heard on the day of september A D 1882 at clock p m at which titu tima the case was called for argument sutherland and me ille bride appearing appmann as counsel for the respondent respond I TSI uel merritt bl erritt arthur brown and jadue harkness for the applicant sutherland and mcbride McBri dc actor for respondent filed a motion to quash the writ on the grounds 1st ast the facts stated in the affidavits and writs arc are not sufficient fo to authorize tb the writs in this ad the said applicant to be registered gist ered as a voter is not and was not on ou the thedac day mentioned a lawful voter because she is and was a woman and such person cannot exercise the elective franchise except by a dueck di i act violation of the laws of the united states the only question submit tecC to the court and upon which arguments were heard wasas wasas to the validity or boust coust constitutionality of the act passed assed by the governor and legislative active assembly of the territory of utah approved february 1870 I do not deem it necessary in this case ase to enter into the discussion of the questions which have been EO ro r o often discussed as to bo be almost threadbare involving the powers of the congress of the united states ov over er the terr territories i tories of tb the e united slates states and will assume that as to all I things pertaining to this territory cuch p power ower is is supreme me the divi sign of abo territory of the united states into different parcels defining its boundaries and limits and giving to each particular parcel a name naime is the usual mode adopted by congress in setting up a district which in common parlance has come to be known by the distinctive term territory at t the time of such setting apart the tho congress of the united states has hag usually enacted in the form of a statute a code of laws termed an organic act which includes in its provisions the granting of certain powers to the people ri residing within the prescribed territorial limits the powers thus granted arc are for the purpose enabling the people residing in the territory to form some soine kind of government for there governance and protection it is well understood that all such so loas lonz is the territorial existence conti continues Lues are delegated PP powers W e emanating from the so sovereign er power and subject to be recalled limi tedor enlarged whatever power which is thus granted subject only to the power of f the congress to recall limit or enlarge is is supreme and so far as the internal regulation of the affairs of a territory is la concerned confers upon it pon the people within the territory a governmental existence in accordance with this usual custom tho the congress of the united states on the dili oth of september 1850 passed an act to establish a territorial government for utah prior to this enactment no distinct ive ive parcel of the domain of the government was known as the territory of utah when that enactment was passed t came into existence euce its boundaries were established and the form of its gov eminent under the and laws of the united states was marked out and avd the power of entering into the business of forming a territorial government was conferred upon the people therein tho the exe executive gutive power and authority was vested in a governor who was to be appointed by the president of the united states A secretary was to to be appointed in liko manner mariner the legislative power and authority was vested in a governor and a assembly section four of this organic A act ct provided the way and means of f electing the members of the legislative assembly by this section it is provided that previous to the first election the governor should cause a census or enumeration of the inhabitants of the several counties and districts of the territory to be taken and the first election should be held at such time and place sand be conducted in euch such manner aa as the governor should appoint and direct and the persons thus elected to the Leg legislative islat ive assembly should meet at such place and on such day lay as the governor aronld appoint but thereafter the time and place and manner of holding and conducting all elections by the people should be prescribed by law enacted by by the territorial rit orial Legisla legislature the h e meana means there being provided for holding a first elec election tid congress by section of the organic act provided who should bo be cu entitled titled ta tg vote at that election and enacted that every free ace white while male inhabitant above th the a age e of twenty one years year who i shall have been a resident of said territory at the time of the passage of tf this act september shall be entitled to vote at the first election by this provision then at this first fi election any inhabitant and whether he be a citizen of the united states or not being a tree free white male above the ago of twenty one years w who ho shall ha have ve been a resident in the territory september 1850 was a voter so far as that election was concerned the qualification ua I a of one to be a voter t thereat areat were two in number viz first A free white male inhabitant abo age of twenty one years second lie he must have been a rc resident of the territory at the time of the passage of the organic act september ath 1850 persons having these prerequisite qualifications became voter voters and by their heir vates elected a embly and that legislative active assembly was the one which by the provisions of section of the organic act was to meet at such place and on such day as tho the governor should a appoint in t when it was so elected mo and did so meet then it bad the power to prescribe by law the time place anN and manner of holding and conducting all elections by the people section of the organic act provides after fixing the qualifications of the voters at saia first election that the qualifications of voters at all subsequent elections shall bo be such as shall be prescribed by the legislative assembly provided that the right of suffrage and of holding office shall be exercised ed only by citizens of the united states including those recognized as citizens by the treaty with the republic of mexico concluded clouded february 2nd and 1848 the function of the voter who was to vote a at t the first elo election action bayt having baying been fully performed when he voted at that election he be thereafter ceased to be a voter at any subsequent election ond nd cou could I d only be qualified as a voter when he be showed himself possessed of the prerequisites required by the legislative assembly subsequent to the enactment af pf the organic act above referred to and find in 1874 the congress of the united states enacted sections 1859 and 1860 until the enactment of these two sections tho the organic act of utah remained in force and the qualifications of voters at all elections after the first election were as prescribed by the legislative assembly of that territory sec see 1859 having relation only to the qualifications of electors at t the time of a first election held on the organization of a territory can have no bearing so far aa as utah is concerned for at the date of its iti enactment utah had had her first eke election tion and was an organized territory sect 1860 is lams as follows at all subsequent sube quent elections however in in any territory hereafter organized by bi congress as is well as at all elections in iii territories already organized the qualifications of voters shall be such aa as maybe prescribed blithe legislative assembly of each tog territory subject nevertheless to the following restrictions on the power following of the legislative ila tivo ass assembly embly namely first the right of suffrage and of holding office shall bo be exercised only by citizens of the united states above the age of twenty one years and by those above that age who have declared on oath before a competent court of record P their otheir intention id become such and have taken an oath to support the constitution of the united states the effect of this section is plain and limits the legislative le lati te assemblies of all the territories territories in tho poi power j v er t tl tj J confer the elective franchise c s e to persons who nrc are citizens of the united states who are above the age of twenty one years and to persons who not being native born or naturalized citizens arc are above the age of twenty one years who have declared on oath before a competent court of record their intention to become citizens citi aena and have taken an oath to support the constitution ution of the united states it is thus made clear that the power to confer the elective franchise is conferred by the sovereign power upon the legislative assembly of this territory limited in m ita exercise as provided by the first restrictive clause of section 1860 revised statutes this section became the law in 1874 and since then ha been in operation section of the organic act provided that at the first election the voter should be in inhabitant sec 1859 revised statute statutes provided that at the first election the voter should be a male citizen above the age of 21 years sec of the act of the utah legislative isla tive assembly approved january 21 1859 provided that a voter must be a male citizen of the united states the first two as we have seen only fixes the qualifications for a fl voter at the first election it nowhere appears in in all tho the legislation had bad upon upon the subject that congress except in fixing the qualifications of a voter at the time of the organization of ofa a territory has limited ur or attempted to limit the powers odthe of the legislative assemblies of the territories to the male qualification fi fl pursuing the grant of a power to confer the rights of suffrage given in in section 1860 it has been arld gf tilly left to the legislative assemblies of the Territories to say ifor if or not they will confer upon males and females or upon either tho the right of suffrage the utah legislative assembly by the act of january 21 1859 conferred the right of suffrage only upon a male citizen of the united states over twenty one years of ago age who had bad been a constant resident in in the territory during the six months next proceeding prece eding an election and who was a taxpayer with the ample power conferred by ny con congress reas upon the legislative assembles assemblies of the territories in doter determining ter mining the qualification of voters ills itis certain it was within the power of the utah legislature to enact the law of january 1859 I think it may clear clearly lybe be assumed that so far as tho the qualifications of an elector are concerned it wa was i tho indention intention of congress subject to the restrictions of sec see 1860 to leave the territories as free as arc are the independent states by the act of january a class of voters was made and their qualifications were determined when the act was passed the legislature without doubt intended to confine the right of suffrage to male males and as long as that act continued to be the law of the territory oril only males could vote but the utah legislature passed an act entitled an act conferring upon women the elective franchise which was approved F february 12 1870 which is la as follows that every woman of the ago of 21 yeara years who has resided in this territory nry six months next preceding I g any general or special election born or naturalized in the united states or who is the wife e widow or daughter da of a native born or naturalized citizen of the uni united states shall bo be entitled to vote at tit any election in this territory this act if st standing by itself and if there was no doubt of power on oil the part of the legislative assembly to confer the right would confer upon the class of persons named in it that right it is undoubtedly irue true that a woman of the age of 21 years who is native born or who has been naturalized is a citizen of the united states and it ia is further undoubtedly true that the wife or widow of a naturalized citizen is a citizen of the united slates and it is further true that a daughter of a native bom citizen of the united states is a citizen and that the daughter of a |