Wooley v. Watkins

• Citation: 22 P. 102,2 Idaho 590
• Parties: WOOLEY v. WATKINS
• Decision Date: 22 July 1889
• Court: Idaho Supreme Court

22 P. 102

2 Idaho 590

WOOLEY v. WATKINS

Supreme Court of Idaho

July 22, 1889

CRIMINAL ORGANIZATION.-Orders, organizations, associations, or by whatever name called, which teach, advise, counsel encourage, or practice the commission of crimes forbidden by law, are criminal organizations.

OVERT ACTS OF MEMBERS.-To become and continue to be members of such organizations are such overt acts of recognition and participation as make them particeps criminis, and as guilty in contemplation of law as though they actively engaged in promoting their unlawful objects and purposes.

ORGANIZATION OF TERRITORY-POWER CONFERRED.-The organic act confers concurrent power upon the territorial assembly of Idaho, to prescribe the qualifications and disabilities of voters of the territory, and to provide a mode by which those qualifications may be ascertained.

ACT OF CONGRESS-QUALIFICATIONS OF ELECTORS.-The act of Congress of March 22, 1882, touching the qualifications of electors in the territories, does not repeal sections 1851 and 1860 of the organic acts, which give the territorial legislature power to prescribe the qualifications of electors of the territory.

TERRITORIAL STATUTE NOT REPUGNANT TO CONSTITUTION OF UNITED STATES.-The territorial statute of February 3, 1885, which prescribes the qualifications of voters of the territory and provides that those qualifications may be ascertained by the oath of the electors, is not repugnant to the constitution of the United States. (Innis v. Bolton, ante, p. 442, 17 P. 264 affirmed.).

(Syllabus by the court.)

APPEAL from District Court, Bingham County.

This is an appeal by H. S. Wooley from a judgment rendered against him on the sixteenth day of October, 1888, in Bingham county by the district court of the third judicial district of the territory of Idaho, dismissing his complaint and application for a writ of mandamus against C. N. Watkins, registrar of voters in Paris precinct. Bear Lake county, to compel him to register his name in the list of voters of that precinct. On the fifth day of October, 1888, the relator filed his petition, wherein he avers "that he is a male inhabitant and native-born citizen of the United States, over the age of twenty-one years; that he has resided in Bear Lake county territory of Idaho, for ten years last past, and still resides there; that he is entitled to vote at any election for delegate to Congress, and for territorial, county, and precinct officers in said territory; that he is not under guardianship, non compos mentis, or insane; that he has not been convicted of treason, felony, or bribery in this territory, nor in any other territory or state in the Union; that he is not a bigamist or polygamist; that he does not teach, advise, counsel, or encourage any person or persons to become bigamists or polygamists, or to commit any other crime defined by law, or to enter into what is known as 'plural' or 'celestial' marriage; that he is not a member of any order, organization, or association which teaches, advises, or encourages its members or devotees, or any other persons, to commit the crime of bigamy or polygamy, or any other crime defined by law, either as a rite or ceremony of any order, organization, or association, or otherwise; that C. N. Watkins is, and at all times herein mentioned has been, the duly appointed and acting registrar of Paris precinct, Bear Lake county, Idaho territory; that on the twenty-ninth day of September, 1888, between the hours of 9 o'clock A. M., and 5 o'clock P. M. (that being the time designated by said registrar for that purpose), he appeared before the said registrar at the place appointed by him for the registration of voters, and then and there offered to take and subscribe the oath prescribed by law, and known as the 'elector's oath,' answer all questions, give all the information under his control, take all the oaths, and do all other acts and things required of him by law, and then and there demanded of said registrar to register his name as a voter, as required by law; that the said registrar, in violation of his duty, rejected his name, and refused to enter it upon the election register, as required by law; that he has been for more than ten years continuously a resident of the said Paris precinct, and entitled to registration therein, and that his name has not been entered upon the election register in said precinct or elsewhere; and prays that a writ of mandamus may be issued, directed to the said C. N. Watkins, registrar as aforesaid, commanding him to register his name in the manner prescribed by law."

Upon the presentation of this petition the court granted an alternative writ of mandamus, directed to the said respondent, returnable on the tenth day of October, 1888. On the return day of the writ the respondent filed an answer admitting certain facts alleged in the petition, and denying others, as follows: "The defendant admits all the facts set forth in the petition, except that it is denied that he is an elector of the territory of Idaho, for the following reasons, and none others; That the said petitioner is a member of what is known as the 'Mormon church in Idaho,' which organization teaches, advises, counsels and encourages its members to commit the crime of polygamy, and other crimes defined by law, as a duty arising or resulting from membership in such organization, and which practices bigamy or polygamy as a doctrinal rite of such organization." On the aforesaid return-day one H. M. Bennett filed his petition, praying the court to allow him to intervene on behalf of the public or people of the territory in said proceeding, and to become a codefendant, for the reasons stated in his petition, which are as follows: "That said action is prosecuted for the purpose of procuring a judgment of this court upon certain questions in which said petitioner is deeply interested; that his interest in said questions is adverse to the interests, desires, and wishes of both plaintiff and defendant; that the issue therein is only colorable; that said action is collusively brought and prosecuted; that the defendant did the acts complained of by and with the advice and procurement of the agents and leaders of the Mormon church; that the counsel for the plaintiff, and those interested with him, have either prepared or advised the preparation of the pleadings; that by the laws of this territory every member of an organization that practices or encourages the practice of crime among its members, or other persons, is ineligible to register, vote, or hold office; that within this territory there are many members of what is known as the 'Mormon church'; that it is an organization that, among other things, encourages the practice of bigamy among its members; that the plaintiff and defendant, and their attorneys, are members of the said Mormon church; that plaintiff's attorneys are not employed by plaintiff, but are retained and employed by the agents and representatives of the said Mormon church; that this action is collusively brought to procure a judgment of this court that will aid the leaders of said church in securing the registration of its members in violation of law; that said action is brought in such way that the agents, leaders, and representatives of said church may control both the prosecution and defense, and thereby prevent the examination and cross-examination of witnesses and parties further than they desire; that the Mormon church, acting through its agents and leaders, has controlled and directed every step in this matter on both sides, from the inception to the present time, and intend to continue such control; that defendant, before refusing to register the plaintiff, registered a large number of Mormons upon the same showing made by the plaintiff, and that he would have registered the plaintiff in like manner if he had not been by those interested with the plaintiff influenced not to do so, in order to bring this matter into court for the purpose hereinbefore stated." Upon the presentation and filing of this petition, and by the consent of the relator and respondent, H. M. Bennett, the petitioner, was by order of the court permitted to become a party respondent, and to show cause, if any there were, why the writ of mandamus prayed for by the relator should not be issued. In pursuance of this order the said Bennett filed an answer on the same day, wherein he denies the relator's right to the relief prayed for on two grounds: "1. That the relator is not a qualified elector of Bear Lake county, Idaho, or of any county of this territory; and 2. That he is a member of what is known as the 'Church of Jesus Christ of Latter Day Saints,' commonly called the 'Mormon church'; that said church is an organization which teaches, advises, counsels and encourages its members to commit the crime of bigamy, polygamy, and other crimes defined by law, as a duty arising or resulting from membership in that organization, and that practices bigamy, polygamy or plural or celestial marriage as a doctrinal rite of such organization, and prays that the proceedings be dismissed," etc. The case was tried by the court below without a jury, upon the issues made by the aforesaid pleadings, and upon the evidence introduced by the relator and respondents respectively. Upon the issues and proofs so made and given the learned judge who presided at the trial, upon his findings of fact and conclusions of law, denied the writ, and entered judgment against the relator, with costs. From this judgment the relator appealed, and brings the record here for review.

Affirmed.

Sheeks & Rawlins, for Appellant.

A person who withdraws from a church does not continue a member of it simply because he holds the same religious faith and tenets with...