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said Territory, willfully and maliciously, by the acts and in the manner aforesaid, refused the plaintiff registration as a voter, at the said reg istration commenced on the second Monday of September, 1882, and deprived the plaintiff of the right to vote at the election held in said Territory on the 7th day of November, 1882, and at all elections under said registration.

county, one at least of whom shall be of the
political party that was in the minority at the
last previous election, if any such party there be
in such precinct, to act as judges of general and
special elections; and they shall designate one
of the persons appointed to preside, and the
other two to act as clerks of said elections. And
the clerk of said court shall make out certifi-
cates of said appointments, and transmit the
same by mail or other safe conveyance to the
persons so appointed, who, previous to entering
upon said office, shall take and subscribe an
oath to the effect that they will well and faith-
fully perform all the duties thereof to the best
of their ability, and that they will studiously
endeavor to prevent any fraud, deceit or abuse
at any election over which they may preside.
If, in any precinct, any of such judges decline
to serve or fail to appear, the voters of said pre-acting under the directions of the other de-
cinct, first assembled on the day of election, to
the number of six, at or immediately after the
time designated for opening the polls, may elect
a judge or judges to fill the vacancy, and the
persons so elected shall qualify as hereinbefore
provided."

Sections 10 and 11 prescribe how ballot-boxes, keys, etc., shall be procured, and provide for envelopes and ballots, and for keeping the box es during the voting and until the canvass; and section 12 provides how the judges shall keep the lists, etc.

"Sec. 13. Every voter shall designate on a single ballot, written or printed, the name of the person or persons voted for, with a pertinent designation of the office to be filled, and when any question is to be decided in the affirmative or negative, he shall state the proposition at the bottom of the ballot, and write thereunder yes or no, as he may desire to vote thereon, which ballot shall be neatly folded and placed in one of the envelopes herein before provided for, and delivered to the presiding judge of election, who shall, in the presence of the voter, on the name of the proposed voter being found on the registry list, and on all challenges to such vote being decided in favor of such voter, deposit it in the ballot box, without any mark whatever be ing placed on such envelope; otherwise the ballot shall be rejected."

The remainder of the Act relates to the can-
vass, returns and certificates of election.

Messrs. George G. Vest, Wayne Mac-
Veagh, Franklin S. Richards and Charles W.
Bennett, for appellants

Messrs. S. F. Phillips, Solicitor-Gen., and
Benjamin Herr Brewster, Atty-Gen.,
for appellees.

Mr. Justice Matthews delivered the opinion of the court:

These cases, although actions at law, were not tried by jury; and therefore are rightly brought here by appeal, according to the provision of the Act of Congress of April 7, 1874, 18 Stat. at L., pt. 8, p. 27; Supplement Rev. Stat., 12; Stringfellow v. Cain, 99 U. S., 610 [Bk. 25, L. ed., 421]; Hecht v. Boughton, 105 U. 8., 235 [Bk. 26, L. ed., 1018]; Woolf v. Hamilton, 108 U. S., 15 [Bk. 27, L. ed., 635].

The wrong complained of in each case by the respective plaintiffs is, "That the defendants, and each of them, intending to wrongfully deprive the plaintiff of the elective franchise in

The acts, which it is alleged were dore by the five defendants, as a Board of Commissioners or Canvassers, under the law of March 22, 1882, and which contributed to the wrong and constituted part of it, are, that they prescribed as a condition of registration an unauthorized oath, set out in the complaint, in a rule promulgated by them for the government of the regis tration officers; and that the deputy registration officer having, in obedience to such rule, fendants," willfully and maliciously refused to receive the affidavit tendered by the plaintiff in lieu of that prescribed by the rule of the board, and to register the plaintiff; and that the county registration officer, on appeal, having refused to order otherwise, the Board of Commissioners also refused to reverse and correct these rulings and to direct the registration of the plaintiffs respectively, but affirmed and approved the same.

But an examination of the ninth section of the Act of March 22, 1882 [22 Stat. L., 30], providing for the appointment and prescribing the duties and powers of that board, shows that they have no functions whatever in respect to the registration of voters, except the appointment of officers in place of those previously authorized, whose offices are by that section of the law declared to be vacant; and the persons appointed to succeed them are not subject to the direction and control of the board, but are required, until other provision be made by the Legislative Assembly of the Territory, to perform all the duties relating to the registration of voters, "under the existing laws of the United States and of said Territory." The board are not authorized to prescribe rules for governing them in the performance of these duties, much less to prescribe any qualifications for voters as a condition of registration. The statutory pow. ers of the board are limited to the appointment of the registration and election officers, authorthorized to act in the first instance under the law until provision is made by the Territorial Legislature for the appointment of their successors, and to the canvass of the returns and the issue of certificates of election "to those persons who, being eligible for such election, shall appear to have been lawfully elected.' The proviso in the section does indeed declare "that said board of five persons shall not exclude any person otherwise eligible to vote from the polls on account of any opinion such person may entertain on the subject of bigamy or polygamy;" but, in the absence of any general and express power over the subject of declaring the qualifications of voters, it is not a just inference from the words of this proviso that it was intended to admit by implication the existence of any authority in the board to exclude from registration or the right to vote, any person whatever, or in any manner to define and declare what the qualifications of a voter shall be. The prohibition against excluding any per

to the polls for the reason assigned | fied by the latter Act. The only question is Ex costrued with the additional injunc- whether they have brought themselves within san, "nor shall they refuse to count any such the meaning of that Act. The language on won account of the opinion of the person which the questions arise occurs in the 8th secso the subject of bigamy or poly ga- tion, and is: "That no polygamist, bigamist, ay to the action of the board in can- or any person cohabiting with more than one returns of elections, made to them woman, and no woman cohabiting with any of Eers holding such elections; or, if it the persons described as aforesaid in this secmore, it is to be taken as the announce- tion," etc., that is, with any polygamist, bigaarneral principle to govern all offi- mist, or person cohabiting with more than one red in the registration of voters or woman, shall be entitled to vote at any election held in the Territory.

tart of elections.

In the case in which Mary Ann M. Pratt is plaintiff, she clearly excludes herself from the disqualifications of the Act. She alleges in her complaint "that she is not and never has been a bigamist or a polygamist; that she is the widow of Orson Pratt, Sen., who died prior to the 22d day of March, 1882, after a continuous residence in said Territory of more than thirty years, and that since the death of her said husband she has not cohabited with any man."

The same is true in reference to the allegations of the complaint in the case in which Mildred E. Randall and her husband are plaintiffs. They are. "that the plaintiff, Mildred E. Randall, for more than three years last past has been and is the wife of the plaintiff Alfred Randall, who is and prior to March 22, 1882, was a native born citizen of the United States of America; that she has not on or since March 22, 1882, cohabited with any bigamist, polygamist, or with any man cohabiting with more than one woman; that she is not a bigamist or polyga mist, and never has been a bigamist or polygamist, and has not in any way violated the Act of Congress entitled 'An Act to Amend Section 5352 of the Revised Statutes of the United States in reference to Bigamy, and for Other Purposes,' approved March 22, 1882."

that the rules promulgated by the aking the form of oath to be exnd persons offering to register as voters, constitute the directions under which teered the registration officers acted, were fire, and no effect can be given to I cannot be alleged that they had the de law of preventing the registration of errarida, for the registration officers were si to obey them; and if they did so, in in their own wrong. There was no between the board and the officers apmed by them of principal and agent, so as the members of the former liable for ver may have illegally done under ter atractions; and, therefore, no connection nav between the acts of the board as charged the wrongs complained of. Trent in favor of the defendants, the Board of Commissioners, upon rer, therefore, was rightly rendered. The as to the other defendants, the regKoncers, stand on different principles. were merely ministerial officers, and if bare deprived the respective plaintiffs of to be registered as voters, in violafaw, they may be responsible in an ache'r camages. Whether they are so must trend in the first instance, not upon what are done or omitted, but upon the ques**ber the plaintiffs have severally shown entitled to the right of which it is bey were illegally deprived. La entering upon the consideration of it is to be observed, in the first place, pider has not in any of the comna ulered, as matter of fact, that the plaintraierally qualified voter, entitled to be The case of Ellen C. Clawson is different. In ed as such. He has preferred, in each the complaint, filed by herself and her husband, a variations to suit the circumstances, it is alleged that she is not and never has been ker the existence of specific enumerated a bigamist or polygamist, and is not cohabiting s and the absence of specific and and never has cohabited with any man except Umeed disqualifications, leaving it to be in- her husband, the co-plaintiff herein, to whom a matter of law, that the plaintiff was she was lawfully married more than fifteen * quafed voter and entitled to be reg-years ago, and of whom she is the first and lawWe as such. That legal inference is neces- ful wife; that the plaintiff, Hiram B. Clawson, hotlete the case as stated; and the suf- has not married or entered into any marriage ** of the statement must depend on wheth-contract or relation with any woman within the uve qualifications required by law last six years, and has contínuously and openly to have existed, and all the disqual-resided in the City of Salt Lake, in said Terriaffed by law have been negatived. tory of Utah, for more than twenty years last an this we have to compare the al- past.' of the complaint in each case with the of the law, and, by construction, to hether they conform.

requirements of the 'aw exist me of the passage of the Act of and which continued in force with that, are concerned, there is Each of the plaintiffs is shown qualified voter, unless disquali

The requirements of the eighth section of the Act, in reference to a woman claiming the right to vote, are that she does not, at the time she offers to register, cohabit with a polygamist, bigamist, or person cohabiting with more than one woman; and it is sufficient, if the complaint denies the disqualification in the language of the Act. These requirements are fully met in the two cases just referred to.

It is quite consistent with these statements, that the husband of the female plaintiff was at the time she claimed registration, a bigamist, or a polygamist, or that he was then cohabiting with more than one woman; and that she was cohabiting with him at the same time. She would be, on either supposition, expressly disqualified from voting by the eighth section of the Act of March 22, 1882, and she does not

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negative the fact. It cannot therefore be in- | diction, hereafter marries another, whether mar-
ferred that she was a lawfully qualified voter. ried or single, and any man who hereafter si-
The cases of Murphy and Barlow are alike in multaneously or on the same day marries more
substance. In Murphy's case, the allegations than one woman, in a Territory or other place
are, "that he has not since more than three over which the United States have exclusive
years prior to March 22, 1882, married or en- jurisdiction."
tered into any marriage contract or relation with But there is another meaning which may be
any woman, or in anywise violated the Act of given to these words, which, we think, is the
Congress approved July 1. 1962 [12 Stat. at L., one intended by Congress. In our opinion, any
501], defining and providing for the punishment man is a polygamist or bigamist, in the sense of
of bigamy in the Territories, *** and has this section of the Act, who, having previously
not violated any of the provisions of the Act of married one wife, still living, and having an-
Congress approved March 22, 1882, etc., *** other at the time when he presents himself to
and that he has not, on or since the 22d day of claim registration as a voter, still maintains that
March, 1882, cohabited with more than one wo- relation to a plurality of wives, although from
man, and has never been charged with or ac- the date of the passage of the Act of March 22,
cused or convicted of bigamy or polygamy, or 1882, until the day he offers to register and to
cohabiting with more than one woman, in any vote, he may not in fact have cohabited with
court or before any officer or tribunal." In more than one woman. Without regard to the
Barlow's case, the statement on one point is question whether at the time he entered into
stronger. It is, "that he has not, on or since such a relation it was a prohibited and punish-
the first day of July, 1862, married or entered able offense, or whether by reason of lapse of
into any marriage contract or relation with any time since its commission a prosecution for it
woman, or in anywise violated the Act of Con- may not be barred, if he still maintains the re-
gress approved July 1, 1862, defining and pro-lation he is a bigamist or polygamist, because
viding for the punishment of bigamy in the that is the status which the fixed habit and
Territories." That is to say, that, although he practice of his living has established. He has
may have married a second wife, it was before à plurality of wives, more than one woman
any law existed in the Territory prohibiting it, whom he recognizes as a wife, of whose chil-
and, therefore, it could not have been a crimi- dren he is the acknowledged father, and whom
nal offense when committed.
with their children he maintains as a family, of
But in both cases the complaints omit the al- which he is the head. And this status as to sev-
legation that, at the time the plaintiffs respect-eral wives may well continue to exist, as a prac-
ively claimed to be registered as voters, they
were not each, either a bigamist or a polyga-
mist.

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tical relation, although for a period he may not in fact cohabit with more than one; for that is quite consistent with the constant recognition of It is admitted that the use of these very terms the same relation to many, accompanied with a in the complaint is not necessary, if the disqual-possible intention to renew cohabitation with ifications lawfully implied by them are other- one or more of the others when it may be conwise substantially denied. That such is their venient. case is maintained by the appellants.

It is not therefore because the person has The words "bigamist" and "polygamist" committed the offense of bigamy or polygamy, evidently are not used in this statute in the at some previous time, in violation of some exsense of describing those who entertain the opin-isting statute, and as an additional punishment ion that bigamy and polygamy ought to be tolerated as a practice not inconsistent with the good order of society, the welfare of the race, and a true code of morality, if such there be; because, in the proviso in the ninth section 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.

It is argued that they cannot be understood as meaning those who, prior to the passage of the Act of March 22, 1882, had contracted a bigamous or polygamous marriage, either in violation of an existing law, such as that of July 1, 1862, or before the enactment of any law forbidding it; for to do so would give to the statute a retrospective effect, and by thus depriving citizens of civil rights, merely on account of past offenses, or on account of acts which when committed were not offenses, would make it an ex post facto law, and therefore void. And the conclusion is declared to be necessary, that the words polygamist and bigamist, as used in the 8th section of the Act, can mean only such persons as, having violated the first section of the Act, are guilty of polygamy; that is, "Every person who has a husband or wife living, who, in a Territory or other place over which the United States have exclusive juris

for its commission, that he is disfranchised by the Act of Congress of March 22, 1882; nor because he is guilty of the offense as defined and punished by the terms of that Act; but because, having at some time entered into a bigamous or polygamous relation by a marriage with a second or third wife while the first was living, he still maintains it and has not dissolved it, although for the time being he restricts actual cohabitation to but one. He might in fact abstain from actual cohabitation with all, and be still as much as ever a bigamist or a polygamist. He can only cease to be such when he has finally and fully dissolved in some effective manner, which we are not called on here to point out, the very relation of husband to several wives, which constitutes the forbidden status he has previously assumed. Cohabitation is but one of many incidents to the marriage relation. It is not essential to it. One man, where such a system has been tolerated and practiced, may have several establishments, each of which may be the home of a separate family, none of which he himself may dwell in or even visit. The statute makes an express distinction between bigamists and polygamists on the one hand, and those who cohabit with more than one woman on the other; whereas, if cohabitation with several wives was essential to the de

# those who are bigamists or polygwords in the statute would be suand unnecessary. It follows, therey person having several wives is a polygamist in the sense of the Act ma 22, 1982, although since the date of are be may not have cohabited with one of them.

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this confraction the statute is not open on that it is an ex post facto law. st seek in this section and by the penranchisement to operate as a punishto acy offense at all. The crime of er plygamy consists in entering into a lygamous marriage, and is comthe relation begins. That of actual e with more than one woman is dethe punishment prescribed in the third The disfranchisement operates uron ng state and condition of the person, - a past offense. It is, therefore, -sint ve He alone is deprived of his we be offers to register, is then in orderouition of a bigamist or a polygthen actually cohabiting with more Disfranchisement is not pre

Congress to pass the Act of March 22, 1882, so far as it abridges the rights of electors in the Territory under previous laws. But that question is, we think, no longer open to discussion. It has passed beyond the stage of controversy into final judgment. The people of the United States, as sovereign owners of the National Territories, have supreme power over them and their inhabitants. In the exercise of this sovereign dominion, they are represented by the Government of the United States, to whom all the powers of government over that subject have been delegated, subject only to such restrictions as are expressed in the Constitution, or are necessarily implied in its terms, or in the purposes and objects of the power itself; for it may well be admitted in respect to this, as to every power of society over its members, that it is not absolute and unlimited. But in ordaining government for the Territories and the people who inhabit them, all the discretion which belongs to legislative power is vested in Congress; and that extends, beyond all controversy, to determining by law from time to time the form of the local government in a particular Territory and the qualifications of those who a penalty for being guilty of the shall administer it. It rests with Congress to La cĉense of bigamy or polygamy; for, say whether, in a given case, any of the people, bem sud, that cfense consists in the fact resident in the Territory, shall participate in the marriage, and a prosecution against election of its officers or the making of its laws; ders barred by the lapse of three years, and it may therefore take from them any right 1044 of the Revised Statutes. Con- of suffrage it may previously have conferred, or Live in that state afterwards is not an at any time modify or abridge it, as it may Laugh cohabitation with more than deem expedient. The right of local self-governBut as one may be living in a ment, as known to our system as a constitua cr polygamous state without cohabit- tional franchise, belongs, under the Constitumore than one woman, he is in that tion, to the States and to the people thereof, by am or a polygamist, and yet guil- whom that Constitution was ordained, and to al offens So that, in respect whom by its terms all power not conferred by alifications of voter under the it upon the Government of the United States are 22, 1882, the objection is not well was expressly reserved. The personal and civil represents the inquiry into the fact rights of the inhabitants of the Territories are of registration as an unlawful secured to them, as to other citizens, by the prinprecation for crime. In respect to ciples of constitutional liberty which restrain all actual cohabitation with more than the agencies of government, State and National; the objection is equally groundless, their political rights are franchises which they Into the fact, so far as the regis- hold as privileges in the legislative discretion of are authorized to make it, or the the Congress of the United States. This docon, on challenge of the right of trine was fully and forcibly declared by the registered, are required to deter- Chief Justice, delivering the opinion of the court ast, in view of its character as a in Nat. Bk. v. Yankton Co., 101 U. S., 129 [Bk. wee the purpose of punishment, but 25, L. ed., 1046]. See also, Am. Ins. Co. v. Canpurpose of determining as in case ter, 1 Pet., 511; U. S. v. Gratiot, 14 Pet., 526; her condition attached to the right of Cross v. Harrison, 16 How., 164; Dred Scott v. gation of one who alleges Sandford, 19 How., 393 [60 U. S., bk. 15, L. ed., It is precisely similar to an 691]. If we concede that this discretion in ConLe fact of nativity, of age, or of gress is limited by the obvious purposes for made necessary by law as a which it was conferred, and that those purposes the cactive franchise. It would be are satisfied by measures which prepare the peofor the sovereign power to de-ple of the Territories to become States in the ne but a married person shall be Union, still the conclusion cannot be avoided, e and in that event the election that the Act of Congress here in question is be authorized to determine for clearly within that justification. For certainly in case of question in any in- no legislation can be supposed more wholesome fact of marriage as a continu- and necessary in the founding of a free, selfhere is no greater objection, in governing commonwealth, fit to take rank as similar inquiry for the like one of the co-ordinate States of the Union, than Le fact of a subsisting and contin- that which seeks to establish it on the basis of or polygamous relation, when it the idea of the family, as consisting in and statute under consideration, springing from the union for life of one man and one woman in the holy estate of matrimony; the sure foundation of all that is stable and noble in our civilization, the best guaranty of

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