Toncray v. Budge

• Decision Date: 24 March 1908
• Citation: 14 Idaho 621,95 P. 26
• Parties: DUDLEY D. TONCRAY, Appellant, v. ALFRED BUDGE, Respondent
• Court: Idaho Supreme Court

95 P. 26

14 Idaho 621

DUDLEY D. TONCRAY, Appellant, v. ALFRED BUDGE, Respondent

Supreme Court of Idaho

March 24, 1908

REPEALED STATUTES-JURISDICTION AT LAW AND IN EQUITY-ELECTION CONTESTS-ELECTION CONTESTS NOT A JUDICIAL QUESTION-JURISDICTION OF ELECTION CONTESTS-QUO WARRANTO-JURISDICTION OF PROCEEDINGS IN QUO WARRANTO-CONSTITUTIONAL LAW-SELF-OPERATIVE PROVISIONS-ELECTIVE FRANCHISE-BIGAMY AND POLYGAMY-CELESTIAL AND PATRIARCHAL MARRIAGES-MARRIAGES FOR TIME ONLY-MARRIAGES FOR TIME AND ETERNITY-CONSTRUCTION OF SEC. 3, ART. 6 CONSTITUTION-PROHIBITION AGAINST BIGAMOUS AND POLYGAMOUS MARRIAGES-PROHIBITION EXTENDS TO ACTS, PRACTICES AND TEACHINGS, AND NOT TO BELIEFS.

1. By the act of February 2, 1899 (Sess. Laws 1899, p. 33) providing for the holding of elections and for election contests, all territorial statutes in relation to elections and election contests were repealed, and the same are no longer in force or effect.

2. At the time of the adoption of the state constitution, the remedy provided for the contesting of elections in certain cases was classed and distinguished as "a special proceeding of a civil nature," and was not classed among "cases or actions either at law or in equity."

3. At common law an election contest, as such, was unknown, and all the provisions or authority existing within this state for contesting an election are dependent upon statute alone.

4. At the time of the adoption of the constitution of this state an election contest, as such, was neither recognized by the common law nor the statute law as a "case either at law or in equity," and such a proceeding is therefore not necessarily included within the original jurisdiction of district courts, as that jurisdiction is conferred by sec. 20 of art. 5 of the constitution.

5. An election contest is of purely statutory origin, and is within the direction, control and management of the political power of the state, and the manner of conducting such a contest and of determining the questions arising thereunder is within the authority and control of the political power of the state government as distinguished from the judicial power and authority thereof.

6. Under sec. 124 of the act of February 2, 1899, in reference to elections and the contest of elections, the supreme court has original jurisdiction in the matter of a contest of the election of a district judge.

7. Under the constitution of this state, it is competent for the legislature to authorize the contesting of elections and to prescribe the manner and method of conducting the same, and to establish or designate the court, body, board or tribunal before which such contests shall take place.

8. It would not be competent for the legislature, under the name or guise of an election contest, to authorize a board or body other than the duly and regularly constituted constitutional judicial tribunals to inquire into and pass upon a constitutional question or a constitutional ineligibility to hold office and make such inquiry and investigation final and conclusive.

9. The writ of quo warranto was a common-law remedy, and is covered by and included in secs. 4612 to 4619, Rev. Stat. of this state, which provide for an information in the nature of quo warranto to inquire into the authority by which a person holds or exercises an office or franchise, and those provisions of the statute are still in force in this state and the jurisdiction to be exercised under these provisions of law falls within the category of "cases both at law and in equity" as used in sec. 20 of art. 5 of the constitution.

10. In proceedings by information in the nature of quo warranto, under secs. 4612 to 4619, Rev. Stat., the district courts of this state have original jurisdiction.

11. In proceedings on information under secs. 4612 to 4619, Rev. Stat., the action must be prosecuted in the name of the people of the state against the usurper or intruder, and must be brought by or on the relation of the district attorney of the proper county or of the attorney general of the state, except in the single instance where a person claims himself to be originally entitled to the office, in which case he may prosecute the action in his own name.

12. Where an action in the nature of quo warranto is sought to be prosecuted under secs. 4612 to 4619, Rev. Stat., and the same is not prosecuted by or on relation of the attorney general or the proper county attorney, it is necessary for the plaintiff to show some good cause why the same is not so prosecuted, and obtain the permission and consent of the court to act as the relator himself and prosecute the action.

13. It is contrary to the spirit and purpose of the ancient writ of quo warranto, and its modern form of information in the nature of quo warranto, to allow the action to be prosecuted promiscuously by any and every elector.

14. The remedy provided for by secs. 4612 to 4619, Rev. Stat., for an information in the nature of quo warranto, is for the protection of the public in its governmental and sovereign capacity, and for the benefit of the community or state at large rather than for the gratification, satisfaction or protection of any particular individual, except it be one who is himself entitled to the office.

15. Sec. 3 of art. 6 of the constitution is self-operative and self-acting, and needs no legislation to carry its provisions into effect.

16. No one can exercise the elective franchise, serve on a jury or hold any civil office within this state who comes within the inhibitions of sec. 3 of the "Suffrage and Elections" article of the state constitution.

17. The only safe and reasonable way in which to interpret and construe language used in a constitutional provision, is to read it in the light of the known condition of affairs and circumstances existing at the time of its adoption and against which its provisions were directed, and in doing so the court will look to the public history of such time as the same can be gathered from the press, public writings and the current literature of that time.

18. The principal and primary object of the people and their representatives in the constitutional convention in adopting sec. 3 of art. 6 was to suppress and forever prohibit and discountenance bigamy and polygamy in the state of Idaho, under whatever name or distinction it might be given; and under whatever doctrine or creed it might be recognized, taught or practiced by any person or organizations.

19. At the time of the holding of the constitutional convention, the Church of Jesus Christ of Latter-Day Saints, commonly called the Mormon Church, recognized two kinds of marriages, one for time only, or for this life only, and the other for both time and eternity, or for this life and the life hereafter, and it was the intention of the framers of the constitution and the people in its adoption, to prohibit plural marriages of either kind; but the prohibition only extends to the natural life of the parties and to this civil and temporal government.

20. Constitutions and statutes are drafted and adopted for the government of men and the regulation of their conduct in a civil and temporal government of human beings in this life. Constitutions and statutes care nothing about what men believe with reference to a future existence; indeed, they are intended in this American Union to protect a man in anything he wants to believe in reference to the future life. They do not deal with beliefs, but with acts and practices and teachings. They protect a man in his religious beliefs, but they prohibit him from acting or practicing or teaching anything in any manner contrary to good morals and the public weal as prescribed by the laws of the land.

21. Celestial and patriarchal marriages to be participated in in the next world or the future life cannot be crimes here and in this life under a civil and man-made government, but whenever, under such names or designation or any other name, a man takes unto himself more than one wife during any given period of time, such marriages become bigamous or polygamous, and are prohibited by the organic law of the state.

22. There was no objection at the time of the adoption of the constitution, and can be no constitutional one now, to a man believing that the wife to whom he is married in this life will continue to be his wife throughout eternity, and there can be no objection to his marrying her for both "time and eternity," but what the constitution objects to and forbids, is a man having more than one wife at any one and the same time, whether he be married to her for "time only" or for "all time and eternity."

23. The fact that a man belongs to a church or organization that teaches that marriage ceremonies celebrated by its duly authorized officers or ecclesiastics remain in force and effect during both this life and all eternity does not disqualify him for an elector so long as such church or organization does not teach or countenance more than one of such marriages for the same person during the same period of time so as to make such marriage bigamous or polygamous.

24. The framers of the constitution and the people in its adoption, in employing the words "bigamous," "polygamous," "plural," "celestial" and "patriarchal" marriages, meant and intended to prohibit a man having more than one wife at any time under whatever name or designation he might choose to style his marriage, and the use of each of those words was directed against bigamous and polygamous marriages.

25. A celestial or patriarchal marriage, in order to come within the prohibition of the provisions of the constitution, must also be bigamous or polygamous.

26. It was not intended by the constitution to in any manner interfere with the religious beliefs and...