31 P. 793 | Idaho | 1892
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 framers of the state constitution of Idaho was the regulation of the right of
“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*406 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, corpora? tion 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*407 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: fAnd 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.
The suggestion of counsel that the law of the first session of the state legislature annuls section 3 of article 6 of the constitution of Idaho, in view of the direct provisions of section 4 of that article, is, in our view, too attenuated to demand the serious consideration of the court. “A state may prescribe a test oath for all electors without violating the constitution of the United States, but if the legislature of a state be not empowered by the state constitution to prescribe the qualifications of voters, it cannot prescribe a test oath which shall add any substantive qualification to those prescribed in the constitution, and yet may prescribe a test oath which, without adding to or changing the qualifications prescribed in the constitution, shall be effectual to disclose the presence or absence of such qualifications. If, however, the legislature be invested by the constitution with power to prescribe the qualifications of voters, it may prescribe a substantive qualification in the form of a test oath." (The italics are ours.) (Paine on Elections, p. 69, and authorities there cited.) “When the constitution of a state has prescribed qualifications for voters, and defined the qualifications to an officer, it is not competent for the legislature to add to, or
It was strenuously claimed by counsel for the petitioner that the law in question was an ex post facto law, and therefore forbidden by section 16 of article 1 of the constitution. The definition of ex post facto laws, as settled by repeated decisions of the supreme court of the United States, is: "Ex post facto laws relate to penal and criminal proceedings which impose punishment or forfeiture, and not to civil proceedings, and are not applicable to civil laws, but to penal and criminal laws only, which affect private rights retrospectively.” (Watson v. Mercer, 8 Pet. 88; Calder v. Bull, 3 Dall. 386; Fletcher v. Peck, 6 Cranch, 87; Ogden v. Saunders, 12 Wheat. 266; Satterlee v. Matthewson, 2 Pet. 380.) The argument of counsel for plaintiff is predicated largely upon the assumption that the exercise of the elective franchise is an absolute right, and that both the constitutional provision and the statute are in violation of this right. All the authorities are against this assumption. It is only necessary to cite a few leading ones. The right of suffrage is not a natural right, nor is it an unqualified personal right. It is right derived from constitutions and statutes. It is regulated by the states, and their power to fix the qualifications of voters is limited only by the provisions of the fifteenth amendment to the constitution. (Huber v. Reiley, 53 Pa. St. 115; Ridley v. Sherbrook, 3 Cold. 569; Anderson v. Baker, 23 Md. 531; Brightly’s Elect. Cas. 27; McCrary on Elections, 2d ed., p. 45, sec. 3; Paine on Elections, sec. 2.) It is said by Judge Cooley (Cooley’s Constitutional Limitations, 589) : "Participation in the elective franchise is a privilege, rather than a right, and it is granted or denied upon grounds of general policy.” Chief Justice Bowie, in Anderson v. Baker, 23 Md. 531, says: "The right of suffrage is the
It is contended by counsel for the plaintiff that the “test ■oath” in the law of February 25, 1891, is in the nature of a “bill of attainder,” or of “pains and penalties.” Section 23, ■article 5 of the state constitution provides that “no person •shall be eligible to the office of district judge unless he shall be thirty years of age.” Does that “attaint” or inflict “pains and penalties” upon all citizens of the state learned in the law, who have not reached that period of longevity? Under •our constitution the right of suffrage is confined to males over the age of twenty-one years. Does that “attaint” or inflict “paina and penalties” upon all the women of the state who