Innis v. Bolton

• Decision Date: 06 March 1888
• Citation: 17 P. 264,2 Idaho 442
• Parties: INNIS v. BOLTON ET AL
• Court: Idaho Supreme Court

17 P. 264

2 Idaho 442

INNIS v. BOLTON ET AL

Supreme Court of Idaho

March 6, 1888

SUFFRAGE-AUTHORITY OF LEGISLATURE.-The legislative assembly of the territory having authority concurrent with Congress, may legislate upon the subject of suffrage, observing, of course, the constitutional limitations, and also the restrictions imposed by Congress.

TEST OATH-ACT CONSTITUTIONAL.-The act of the legislative assembly of the territory of Idaho, passed at its thirteenth session creating additional disqualifications for voting, and prescribing a test oath as a mode of ascertaining the qualifications of persons offering to vote, is not in violation of the constitution of the United States.

SUFFRAGE AS A RIGHT-MAY BE ABRIDGED OR WITHDRAWN.-The right of suffrage is not a natural right, nor an unqualified personal right, but in a territory is a right conferred by law, which may be abridged or withdrawn by the authorities that conferred it, subject to constitutional limitations and restrictions.

(Syllabus by the court.)

APPEAL from District Court, Bear Lake County.

Affirmed.

Richard Z. Johnson, for Appellant.

No brief on file.

Ensign & Stull, for Respondents.

The act in question is not in conflict with any provision either of the constitution or statutes of the United States. At all subsequent elections (that is, after the first election) in any territory, the qualifications of voters, and of holding office shall be such as may be prescribed by the legislative assembly of each territory. (U. S. Rev. Stats., sec. 1860; Idaho Rev. Stats., 27.) The right of suffrage is not a natural right, nor is it an absolute, unqualified, personal right. It is a right derived in this country from constitutions and statutes. (McCrary on Elections, sec. 3; Huber v. Reiley, 3 Cold. (Tenn.) 569; Anderson v. Baker, 23 Md. 531; Brightley on Election Cases, 27; Blair v. Ridgley, 41 Mo. 63, 97 Am. Dec. 248, and note; Brightley on Election Cases, 83.) The qualifications of voters are not uniform in the states. Some states require payment of taxes, many registration. (McCrary on Eelctions sec. 7; Capen v. Foster, 12 Pick, 485, 23 Am. Dec. 632, and note; Brightley on Election Cases, 51; Hawkins v. Carrall Co., 50 Miss. 735; State v. Baker, 38 Wis. 71.) Whenever legislative enactments prescribing the right to vote have been held invalid it has been because they were in conflict with the provisions of a constitution. (McCafferty v. Guyer, 59 Pa. St. 109; Brightley on Election Cases, 44; Page v. Allen, 58 Pa. St. 388; Patterson v. Barlow, 60 Pa. St. 54; People v. Canaday, 73 N.C. 198, 21 Am. Rep. 465; 1 Story on the Constitution, c. 9, secs. 581, 582.) There is nothing in the first amendment to the federal constitution which can give protection to those who practice what is forbidden by the statutes as criminal, on the pretense that their religion requires or sanctions it. (Reynolds v. United States, 98 U.S. 145.)

BRODERICK, J. Hays, C. J., and Buck, J., concur.

OPINION

BRODERICK, J.

This action was commenced in the district court in and for Bear Lake county. The complaint alleges "that, at a special election duly held in and for said county of Bear Lake, on the twentieth day of November, 1886, for the election of a county surveyor, in and for said county, said defendants were the judges of election for Paris election precinct in said county, and being duly appointed and qualified as such judges, and acting as such, the defendants had the polls open for said election at the first ward schoolhouse, in said Paris precinct, between the hours of 8 o'clock in the forenoon and 7 o'clock in the evening of said day. That this plaintiff then was a male inhabitant of said county and territory, over the age of twenty-one years, and a native-born citizen of the United States, and then resided, and, for the space of more than four months and for more than twenty years immediately preceding the day of said election, had resided continuously in said territory, and in said county of Bear Lake, and in said Paris precinct. That, as said defendant then and there well knew, this plaintiff was not, at the time of said election, under guardianship, non compos mentis, or insane, and was not and had not been convicted of treason, felony or bribery in this territory, or in any other state or territory in the Union, or elsewhere, and was not a bigamist or polygamist, and did not cohabit with more than one woman. That as an elector of said county and precinct, this plaintiff, while the polls were then and there open for the reception of votes as aforesaid, duly offered to the defendants, judges of said election as aforesaid, his vote or ballot for the election of said county surveyor for said county, and then and there requested defendants to receive and deposit the same. That this plaintiff being thereupon challenged by an elector entitled to vote at said poll, and one of the defendants having declared to this plaintiff the general qualifications of an elector, this plaintiff then and there declared himself duly qualified; whereupon, said challenge not being withdrawn, this plaintiff offered to take, and requested said defendants to administer to plaintiff, the following oath: 'I do solemnly swear that I am a male citizen of the United States, over the age of twenty-one years; that I have actually resided in this territory for four months last past, and in this county thirty days; that I am not a bigamist or polygamist; that I do not cohabit with more than one woman, and that I have not previously voted at this election. So help me God.' But said defendants then and there refused to administer, or permit this plaintiff to take said oath. That said defendants, and each of them, not regarding their duty as judges of said election, and intending to wrongfully deprive this plaintiff of the elective franchise at said election, wrongfully, willfully, and maliciously refused to receive or deposit said ballot, although they, and each of them, then and there well knew that plaintiff was a qualified voter, and entitled to vote at said election; whereby plaintiff was deprived of his vote at said election, to his damage in the sum of ten thousand dollars. Wherefore plaintiff demands judgment against the defendants for the sum of $ 10,000 and his costs and disbursements in this action." The defendants demurred on the ground that it appeared on the face thereof that the complaint did not state facts sufficient to constitute a cause of action. The demurrer was sustained, plaintiff declined to amend, and elected to stand upon the pleading. The court thereupon ordered the complaint dismissed, and judgment was rendered in favor of defendants for their costs. The plaintiff duly excepted and appealed from the judgment.

In 1885 the legislative assembly of the territory enacted what is commonly known as the "Test Oath Statute." Section 16 of the Thirteenth Session Laws 106, reads as follows: "If any person offering to vote shall be challenged by any judge or clerk of the election, or any other person entitled to vote at the same poll, and either judge shall challenge any person offering to vote whom he shall know or suspect not to be qualified, one of the judges shall declare to the person so challenged the qualifications of an elector. If such person shall then declare himself duly qualified, and the challenge be not withdrawn, one of the judges shall then tender him the following oath: 'You do solemnly swear (or affirm) that you are a male citizen of the United States, over the age of twenty-one years; that you have actually resided in this territory for four months last past, and in this county thirty days; that you are not a bigamist or polygamist; that you are not a member of any order, organization, or association which teaches, advises, counsels or encourages its members, devotees, or any other person to commit the crime of bigamy or polygamy, or any other crime defined by law, as a duty arising or resulting from membership in such order, organization or association, or which practices bigamy or polygamy or plural or celestial marriage as a doctrine rite of such organization; that you do not either publicly or privately, or in any manner whatever, teach, advise, counsel or encourage any person to commit the crime of bigamy or polygamy, or any other crime defined by law either as a religious duty or otherwise; that you regard the constitution of the United States, and the laws thereof, and of this territory as interpreted by the courts, as the supreme law of the land, the teachings of any order, organization, or association to the contrary notwithstanding; and that you have not previously voted at this election, so help you God.'" It is contended on behalf of the appellant that this act is void--1. Because it is in violation of the first amendment to the constitution of the United States; and 2. Because it is in conflict with the act of Congress of March 22, 1882. Congress has the superior power to legislate for the territories upon this subject, as well as all others; but its policy has usually been to prescribe the qualification of electors at the first election after the organization of a territory, and thereafter allow the legislative assembly of the territory, under certain restrictions and limitations, to regulate and fix the qualifications for the exercise of the elective franchise at all subsequent elections. Section 1860 of the Revised Statutes of the United States was in force at the time the territorial statute was enacted, and is as follows: "At all subsequent elections, however, in any territory hereafter organized by Congress, as well as at all elections in territories already organized, the qualifications of voters, and of holding office, shall be such as may be...