after making tbe foregoing statement, delivered tbe opinion of tbe 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 aet of Congress of April Y, 1874, 18 Stat. 27.
Stringfellow
v.
Cain,
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 said Territory, wilfully and maliciously, by the a¡cts and in the manner, aforesaid, refused the plaintiff registration, as a voter, at the said registration 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.”
The acts which, it is alleged, were done 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 axi unauthorized oath, set out in the complaint, in a rule promulgated by them for the government of the registration officers; and that the deputy registration officer having, in obedience to such rule, “ acting under the directions of the other defendants,” wilfully 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 <}f March ' 22, 1882, providing for the appointment and prescribing the
It follows that the rules promulgated by the board, prescribing the form of oath to be-exacted of persons offering to register as voters, and which constitute the directions under which it is alleged the registration officers acted, were without force, and no effect can be given to them-. It cannot be alleged that they had the effect in law of preventing the registration of the plaintiffs, for the registration officers were not bound to obey them; and if they did so, they did' it in their own wrong. There was no relation between the board and the officers appointed by them of .principal and agent, so as to make the members of the former liable for what the latter may have illegally done under their instructions, and, therefore, no connection in law between the acts of the board as-charged and the wrongs complained of.
The judgment in favor of the defendants, composing the Board of Commissioners, upon their demurrer, therefore, was rightly rendered.
The cases, as to the other* defendants, the registration officers, stand on different principles. If they were merely ministerial officers, and if they have deprived the ■ respective plaintiffs of their right to be registered as voters^ in violation of law, they may be responsible in an action for damages. Whether they are so must depend, in the first instance, not upon what they have done or omitted, but upon the question whether the plaintiffs have severally shown themselves entitled to the right of which, it is alleged, they were illegally deprived.
And in. entering upon the consideration of this point it is to be observed, in the first place, that the pleader has not in any of the complaints, alleged, as matter of fact, that the plaintiff was a legally qualified voter, entitled to be registered as such. He has preferred, in each case, with variations "to suit the circumstances, to aver the existence of specific enumerated, qualifications, and the absence of. specific and enumerated disqualifications, leaving it to be inferred, as a matter of law, that the plaintiff was a legally qualified voter and entitled to be registered as such. That legal inference is necessary to com-
To ascertain this we have to compare the allegations of the complaint in each case with the requisitions of the law, and, by construction, to determine whether they conform.
So far as the requirements of the law existing at the time of the passage of the act of March 22, 1882, and which continued in force concurrently with that, are concerned, there is no difficulty. Each of the plaintiffs is shown to have been a qualified voter, unless disqualified by the latter act. The only question is, whether they have brought themselves within the meaning of that act. The language on which the questions, arise occurs in § 8, and is: “ That no polygamist, bigamist, or any person cohabiting with more than one woman, and no woman cohabiting with any of the persons described .as aforesaid in- this section,” &c., that is, with any polygamist, bigamist, or person cohabiting with more than one woman, shall be entitled to vote at any .election held in the Territory.
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 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 22d, 1882, was native-born citizen of the United States of America; that she has riot on or since March 22d, 1882, cohabited with any bigamist, polygamist; or with any man cohabiting with .more than one woman; that she is not a bigamist or polygamist, and never has been a bigamist or polygamist,
The requirements of the eighth section of the act, in refer ence 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.
The case of .Ellen C. Clawson is different. In the complaint, filed by herself and her husband, it is alleged that she “ is not ■. and never has been a bigamist or polygamist, .and is not cohabiting and never has cohabited with any man except her'. ' husband, the co-plaintiff herein, to whom she was lawfully married more than -fifteen yéars ago, and of whom she is the first and lawful wife; that the plaintiff, Hiram B. Clawson, has not' married or entered into any'marriage Contract or relation with any woman within the last six years, and has continuously and openly resided in the city of Salt Lake, in said Territory of Utah, for more than twenty years last past.”
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 'negative the fact. It cannot, therefore, be inferred that she was a lawfully qualified voter.
The cases of Murphy and Barlow are-alike in substance. In Murphy’s case, the-allegations are, “ that he has'not since more than three years prior to March .22d, 1882, married or entered into any marriage contract or relation with any woman,-or in anywise violated the act of Congress approved July 1, 1862, defining and providing for the .punishment of bigamy in the Territories, . . . and has not violated any of the provisions
But in both cases the complaints omit the allegation, that, at the time the plaintiffs respectively claimed to be registered as voters, they were not each, either a bigamist or a polygamist.
'It is 'admitted that, the use of these very'terms in the complaint is not necessary, if -the disqualifications lawfully implied by them are otherwise substantially denied. That such is their case is maintained by the appellants.
, The words “ bigamist ” and “ polygamist ” evidently are not used in this statute in the sense of describing those who entertain the opinion 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, 1§62, 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
But there is another meaning which may be given to these words, which, we think, is the one intended by Congress. In our opinion, any man is' a polygamist or bigamist, in the sensp of this section of the act, who, having previously married one wife, still living, and having another at the time when he presents himself to claim registration as a voter, still maintains that relation to a plurality of wives, although from the date of the passage of the act of March 22, 1882, until the day he offers to register and to vote, he may not in fact have cohabited with more than one woman. Without regard to the questiort whether at the time he entered into such relation it was a prohibited and punishable offence, or whether by reason of lapse of time since its commission' a prosecution for it may not be barred, if he still maintains the relation, he is a bigamist or polygamist, because that is the status which the fixed habit and practice of his living has established. He has a plurality of wives, more than one woman whom he recognizes as a wife, of whose children he is the acknowledged father, and ■whom with their children he maintains as a family, of which he is the head.' And this status as to several wives may well continue to exist, as. a practical 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 the same relation to many, accompanied with a possible intention to renew cohabitation with one or more of the others when it may be convenient.
Upon this construction Hie statute is not open to the objection that it is an
ex post facto
law. It does not seek in this section and by the penalty of disfranchisement to operate as a punishment upon any offence at all. The crime of bigamy or polygamy consists in .entering into- a bigamous or polygamous marriage, and .is complete when the relation begins. That of actual cohabitation with more than one woman, is defined and-
The counsel for the appellants in argument seem' to question ' the constitutional power of 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 Ihis 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 Avho 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 qualification of those who shall administer it. It rests with Congress to say whether, in a given case, any of the people, resident in the Territory,, shall participate in the election of .its officers or the making of its laws ; and it may; therefore, take from them any right of suffrage it may previously have conferred, or at any time modify or abridge it, as it may deem expedient. The right of local self-government, as known to our system as a constitutional franchise, belongs, under "the Constitution, to the States and to the people thereof, by whom that Constitution was ordained, and to whom by its terms all power not conferred by it upon the government of the United States was expressly reserved. The personal-and civil rights of the inhabitants of the Territories are secured to them, as to othermitizens, by-the principles of constitutional liberty which restrain all the agencies of gov
It remains to be considered whether, in the two cases in which Mary Ann M. Pratt and Mildred E. Randall and husband are respectively the plaintiffs, and in which the plaintiffs have shown a title to vote, the defendants who were registration officers, are sufficiently charged with a legal liability.
As we have pointed out, they are bound by virtue of their' appointment under § 9 of the act of March 22, 1882, to perform their duties under the existing laws of the United States and of the Territory. ‘ The law of the Territory then in force, being “'An Act providing for the registration of voters and to further regulate the-manner of conducting elec
The act.of March 22, 1882, created the additional disqualifications which have been mentioned, and which, of course, are not poet by the oath as prescribed by the territorial act of 1878, and it is not consistent with' the express provisions of the act of Congress, that every person,willing to take the oath in the form, prescribed by the territorial act shall be permitted to register as a vóter. Either the oath itself must be regarded merely as a model, to be modified by the operation of the act of Congress, so as to meet by appropriate denials the several new disqualifications created by it, and then to be taken with the prescribed effect of entitling the person subscribing it to register as a voter without other proof; or else the effect of the act of Congress is to limit ’the class entitled to take the-oath in the form prescribed by the territorial act, with the effect thereby given to it, to those who are not subject
to
the .disqualifications which the act of .Congress- imposes. The existing laws of-the United States and of the Territory, under which the .election officers are bound to perform their duties, must include the act itself, which provides for their appointment and defines their duties, and if they have not'the right to exact an oath different frotn that, the form of which is given in the territorial act, they must otherwise satisfy themselves that persons offering to register are free from the disqualifications defined in .the. act of Congress.. In doing so, they are of course re; quired to exercise diligence and good faith in their inquiries,
In the two cases last referred to, the allegations of the complaint show, not only that the several plaintiffs were' legally entitled to be registered as voters, but declared that the refusal. of the registration officers to admit them to the list' was wrongful and malicious. The demurrers admit the plaintiffs’ case, as thus stated, and therefore ought to have been overruled.
It follows that the judgments in the three cases in which Jesse J. .Murphy, Ellen G. Clawson and Hiram B. Glawson, her husband, and James M. Barlow are the respecti/ve plaintiffs, a/re affirmed as to all the defendants; in the two eases in which Mary Ann M. Pratt and Mildred E. Randall, and . Alfred Randall, her husband, are the plaintiffs respboiwely, the judgments in favor of the five defendants, Alexander Rmnsey, A. 8. Paddock, G. L. Godfrey, A. B. Garleton ■ and J. R- Pettigrew, are affirmed / and as to ■ the defend- ' cunts, E. B. Uoge, John 8. Lindsay and Hcurmel Pratt, the judgments are reversed, and as to ■ them the cases are remanded, with instructions to overrule the demurrers, and for further proceedings. And it is so ordered.