Shepherd v. Grimmett

• Decision Date: 18 October 1892
• Citation: 31 P. 793,3 Idaho 403
• Parties: SHEPHERD v. GRIMMETT
• Court: Idaho Supreme Court

31 P. 793

3 Idaho 403

SHEPHERD v. GRIMMETT

Supreme Court of Idaho

October 18, 1892

TEST OATH LAW CONSTITUTIONAL.-The elector's oath enacted at the first session of the legislature of the state of Idaho and approved February 25, 1891, held not to be an ex post facto law, not in the nature of a bill of attainer, and to be clearly within the constitutional power of the legislature.

(Syllabus by the court.)

APPLICATION by Joseph R. Shepherd for a writ of mandate to compel Hyrum Grimmett, registrar of voters, to register plaintiff as a voter. Application denied.

Writ denied.

Arthur Brown, Alfred Budge, John A. Bagley and C. W. Bennett, for Petitioner.

The electors' oath bill partakes of the nature of "a bill of pains and penalties," which is included in the prohibition of the constitution of the United States that "no bill of attainder shall be passed," and that "no state shall pass any bill of attainder." (Cooley's Constitutional Limitations, 261; Story on the Constitution, 1338; Bouvier's Law Dictionary, 247; Fletcher v. Peck, 6 Cranch, 87; Ex parte Garland, 4 Wall. 333-388.) It is a legislative conviction for a supposed crime, which is void. (Fletcher v. Peck, 9 Cranch, 87; Cummings v. Missouri, 4 Wall. 277; Ex parte Garland, 4 Wall. 333; Drehman v. Stifle, 8 Wall 595.) Any law that makes an act done before the passage of the law, and which was innocent when done, criminal, and punishes such act, is ex post facto, and void. (Calder v Bull, 3 Dall. 386; Kring v. State of Missouri, 107 U.S. 221, 2 S.Ct. 443; Ex parte Bethurum, 66 Mo. 295; Smith's Constitutional and Statutory Construction, sec 367.)

OPINION

PER CURIAM

This is an application by the plaintiff for a writ of mandate, to the defendant, as registrar of Paris precinct in Bear Lake county, Idaho, commanding him to register the plaintiff as an elector of said precinct, which defendant had refused to do for the reason that plaintiff refused to take the oath required by the statutes of Idaho as a condition precedent to registration. There was no appearance on the part of defendant. It is claimed by the plaintiff that the statute enacted by the first legislature of the state of Idaho, and generally known as the "Test Oath Law," is unconstitutional and void, upon the following grounds: 1. That it is in contravention of section 9, article 1 of the federal constitution, in that it is ex post facto in its character; 2. That it annuls the provisions of section 3, article 6 of the constitution of the state of Idaho; 3. That it is in the nature of a bill of attainder. Among the most embarrassing problems presented to the farmers of the state constitution of Idaho was the regulation of the right of suffrage. Almost since the organization of the territory there had existed within its borders an organization which persisted in practices and teachings which were in open defiance of both local and federal laws which they considered at all impinged upon what they termed their "religious liberties." These practices made them not only a disturbing element in the commonwealth, but a constant menace to free American institutions and government. The necessity for some action putting a period to the advancement of the pernicious doctrines of polygamy and bigamy found recognition in the enactment by the legislature of the territory of section 501 of the Revised Statutes, known as the "Test Oath Act," and which prescribed an oath to be taken by all persons as a condition precedent to the exercise of the elective franchise. This act, by its provisions, excluded from the elective franchise in the territory of Idaho all members of the said organization. Some of the members of that organization at once set about divining schemes by which the law might be evaded or set at naught. In October, 1888, just prior to the biennial election of that year, a large number of the members of that organization in Idaho, presumably acting under the direction of indiscreet leaders, made a pretended withdrawal from the organization, and thereafter registered as voters, taking the required oath. Several parties were indicted in the district court of the third district of the territory, and, a test case having been made, the question of the validity of the statute known as the "Test Oath Law," was passed upon by the supreme court of the United States in the case of Davis v. Beason, 133 U.S. 333, 10 S.Ct. 299, 33 L.Ed. 637, and the validity of the statute affirmed by that tribunal. The substance of the "test oath" statute enacted by the territorial legislature was embodied in section 3, article 6 of the constitution of the state of Idaho, which is as follows, viz.:

"Sec. 3. No person is permitted to vote, serve as a juror, or hold any civil office, who is under guardianship, idiotic, or insane, or who has at any place been convicted of treason, felony, embezzlement of public funds, bartering or selling or offering to barter or sell his vote, or purchasing or offering to purchase the vote of another, or other infamous crime, and who has not been restored to the right of citizenship, or who at the time of such election is confined in prison on conviction of a criminal offense, or who is a bigamist or polygamist, or is living in what is known as patriarchal, plural or celestial marriage, or in violation of any law of this state or of the United States forbidding any such crime, or who in any manner teaches, advises, counsels, aids or encourages any person to enter into bigamy, polygamy, or such patriarchal, plural or celestial marriage, or to live in violation of any law, or to commit any such crime, or who is a member of, or contributes to the support, aid or encouragement of, any order, organization, association, corporation or society which teaches, advises, counsels, encourages or aids any person to enter into bigamy, polygamy or such patriarchal or plural marriage, or which teaches or advises that the laws of this state prescribing rules of civil conduct are not the supreme law of the state; nor shall Chinese nor persons of Mongolian descent not born in the United States, nor Indians, not taxed, who have not severed their tribal relations, and adopted the habits of civilization, either vote, serve as jurors, or hold any civil office."

The constitutional convention, careful not to restrict the power of the legislature in this respect, and to sufficiently provide for any contingency that might thereafter arise, enacted section 4 of article 6, which is as follows: "Sec. 4. The legislature may prescribe qualifications, limitations, and conditions for the right of suffrage additional to those prescribed in this article, but shall never annul any of the provisions in this article contained." The first legislature that convened under the state organization, in an act entitled "Elections and Electors," provided, among other things, that the registrar must, before he registers any applicant, require him to take and subscribe the oath to be known as the "Elector's Oath," which is as follows:

"Elector's Oath: I do swear, or affirm, that I am a male citizen of the United States, of the age of twenty-one years (or will be) the day of , A. D. 18 (naming date of next succeeding election); that I have (or will have) actually resided in this state for six months, and in the county for thirty days next preceding the next ensuing election. (In case of any election requiring a different time of residence, so make it.) That I have never been convicted of treason, felony, embezzlement of public funds, bartering or selling or offering to barter or sell my vote, or purchasing or offering to purchase the vote of another, or other infamous crime, without thereafter being restored to the right of citizenship. That since the first day of January, 1888, and since I have been eighteen years of age, I have not been a bigamist or polygamist, or have lived in what is known as patriarchal, plural, or celestial marriage, or in violation of any law of this state or of the United States forbidding any such crime; and I have not during said time taught, advised, counseled, aided or encouraged any person to enter into bigamy, polygamy or such patriarchal, plural or celestial marriage, or to live in violation of any such law, or to commit any such crime; nor have I been a member of, or contributed to the support, aid or encouragement of, any order, organization, association, corporation or society which, through its recognized teachers, printed or published creed, or other doctrinal works, or in any other manner, teaches or has taught, advises or has advised, counsels, encourages, or aids, or has counseled, encouraged or aided, any person to enter into bigamy, polygamy or such patriarchal or plural marriage or which teaches or has taught, advises or has advised, that the laws of this state or of the territory of Idaho, or of the United States applicable to said territory, prescribing rules of civil conduct, are not the supreme law. That I will not commit any act in violation of the provisions in this oath contained. That I am not now registered or entitled to vote at any other place in this state. That I do regard the constitution of the United States, and the laws thereof, and the constitution of this state, and the laws thereof, as interpreted by the courts, as the supreme law of the land, the teachings of any order, organization, or association to the contrary notwithstanding. (When made before a judge of election, add: 'And I have not previously voted at this election.') So help me God."

It is the validity of this provision of the statute which is attacked in this proceeding.

With the policy of either the constitutional provision or the statute the court has nothing to do. If circumstances have arisen since the enactment of the...