95 P. 26 | Idaho | 1908
This proceeding was instituted on December 15, 1906, in the district court of the fifth judicial district in and for the county of Bannock. It is a proceeding to contest the election of the defendant and respondent as judge of the fifth judicial district of this state. The complainant alleged that he was an elector of the state and of the county of Bannock on November 6, 1906, and that as such elector he prosecutes this proceeding to contest the election of the Honorable Alfred Budge as district judge. He alleges that on November 6, 1906, the defendant was elected judge of the fifth judicial district, and that thereafter and on November 26, 1906, the state board of canvassers canvassed the election returns and declared the defendant duly elected to the office of. district judge in and for the fifth district.
The sole and only grounds of contest alleged by the complainant on account of the existence of which he alleges that the defendant had not been duly and regularly elected to such office, and for which he prayed that the office be declared vacant, are those found in sec. 3, art. 6 of the state constitution. That section is as follows:
“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 rights 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 partriarchal 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,*631 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 such 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 or 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 or serve as jurors, or hold any civil office.”
It is alleged that the defendant judge is one of the persons named in the foregoing provision of the constitution as prohibited from holding any civil office within this state. The principal grounds charged as constituting the inhibition against this defendant, are: That the defendant was on November 6, 1906, and for a long time prior thereto, and ever since said date has been, a member of an organization known as the Church of Jesus Christ of Latter-Day Saints, commonly nailed the Mormon Church, and that he did at all the times mentioned, and still does, contribute to the support, aid and ■encouragement of such organization and church¿ “that said church teaches, advises, counsels, encourages and aids persons to enter into polygamous marriages,” and “plural marriages” and “patriarchal marriages,” and “celestial marriages.”
The complaint, consisting of thirty-three paragraphs, charges the organization, commonly known as the Mormon Church, with teaching each and every of the separate acts inhibited by sec. 3, art. 6 of the constitution, and charges the defendant with being a member thereof, and contributing to the support and aid of the organization. It does not, however, charge the defendant himself with bigamy or polygamy, unless charging celestial and patriarchal marriage amounts to charging bigamy and polygamy. It does charge him, though, with “living in what is known as celestial marriage,”
The defendant demurred to the complaint, 1st, on the ground that the court in which the complaint was filed had no-jurisdiction of the subject matter; 2d, that the complaint. did not state facts sufficient to constitute a cause of action; 3d, that it was uncertain and ambiguous in that it did not allege what complainant meant by charging that the defendant was living “in what is known as celestial marriage,” and also in charging that defendant was living “in what is known as patriarchal marriage.” The demurrer came on for hearing before the Honorable J ames M. Stevens, judge of the sixth judicial district, presiding, and after argument was sustained, and the complainant declining to amend, the cause was dismissed. This appeal is from the judgment.
The first question presented on this appeal is as to the jurisdiction of the district court to hear and determine a contest of election of a district judge. .Respondent contends that the only authority to be found in the laws of this state for contesting the election of a district judge is that contained in the act of February 2,1899 (Sess. Laws, 1899, p. 33), and that by see. 124 thereof the supreme court is vested with original jurisdiction in such cases. That section provides as follows:
“The supreme court shall hear and determine contests of the election of judges of the supreme court, judges of the district courts, and district attorneys; and in case they shall disagree, the governor shall act with them in determining, but no judge of the supreme court shall sit upon the hearing of any ease in which he is a party.”
The appellant, on the contrary, contends that in the first place the foregoing section is unconstitutional; in the second place, that if it is constitutional, it is only a concurrent jurisdiction with the district courts; that under the provisions of see. 20, art. 5 of the constitution, “the district courts have original jurisdiction in all cases both at law and in equity,”
At the time of the adoption of the constitution, we had on the statute-books of the then territory, secs. 5026 to 5042, Rev. Stat., providing for contesting certain elections. At the time of the adoption of the constitution, an election contest was designated by the statute as a “special proceeding of a civil nature” and was made a title of part 3 of the Code of Civil Procedure. Under the provisions of the statute as it then existed, the district courts were given jurisdiction in such eases as the one at bar. After the adoption of the constitution, the first legislature enacted an election law of which the act of February 2, 1899 (Sess. Laws 1899, p. 33), is a reenactment. By sec. 162 of the latter act, it is provided that “All acts and parts of acts enacted by any territorial legislature relating to elections be and the same are hereby repealed.” That act contained a complete election law, as well as specific enactments for contesting each and every office to which a candidate might be elected. It also provided the board, body or forum in which each contest should take place. The act of February 2, 1899 (Sess. Laws 1899, p. 33), was clearly intended to provide a full and complete scheme and procedure for holding elections and the contests thereof, and repealed all territorial election laws and with it such territorial statutes as provided for the contesting of elections. A statute providing for contesting an election is clearly legislation “relating to elections,” and was within the repealing provisions of sec. 162 of the act. We conclude that the only legislation we now have in this state that refers to the contest of elections is that found in the legislative enactments subsequent to the adoption of the constitution. This determination leads to the conclusion that if sec. 124 of the act of February 2,1899, is constitutional, then the supreme court has original jurisdiction over such a contest. It remains, then,
It seems to be conceded by the authorities that at common law there was no such a proceeding or remedy as an election contest, and that the only way known to the common law to contest the right of a person to an office was by the writ of quo warranto, and that remedy was invoked in the name of the crown by the public prosecutor, or, as we term him, the attorney general. (Carter v. Superior Court, 138 Cal. 150, 70 Pac. 1067; Budd v. Holden, 28 Cal. 124; Snowball v. People, 147 Ill. 260, 35 N. E. 538; Paine on Elections, sec. 793,. 794; 7 Ency. Pl. & Pr. 377; 15 Cyc. 393.) The territorial legislature at the session of 1887, enacted secs. 4612 to 4619, inclusive, which are practically a codification of the common-law quo warranto, with some additions and enlargement both as to subject matter and authority and jurisdiction of the courts. Those provisions of the statute are still in force. They at once became a part of the power and jurisdiction of the district courts, as was quo warranto at common law, and they remain such' to this day. The present proceeding is not prosecuted under the provisions of the foregoing sections, and was evidently not instituted on that theory. It was brought purely as an election contest and in the name of an elector as contestant. Of this, however, we will deal later. For the purposes of our present consideration we treat the proceeding as a straight election contest. The question then arises: Is an election contest a case either at law or in equity within the meaning of sec. 20, art. 5 of the constitution? That section reads: “The' district court shall have original jurisdiction in all cases both at law and in equity, and such appellate jurisdiction as may be conferred by law.” .At first blush, it would seem that the framers of the constitution had by the words “in all eases both at law and in equity” intended to cover all matters, subjects and controversies involv
Aside, however, from these considerations and legal conclusions, the inquiry still remains: Is an election contest neces.sarily or innately a judicial inquiry? It must be conceded, we think, that a contest, as distinguished from a quo ivarranto or inquiry on information, is of purely statutory origin. (Paine on Elections, see. 793.) In the absence of legislation providing for and authorizing an election contest, no such
In Douglas v. Hutchinson, 183 Ill. 323, 55 N. E. 628, the supreme court of Illinois in 1899, in considering this identical question under the constitution of that state, said: “The provision of the constitution conferring original jurisdiction upon circuit courts includes the prosecution of every claim or demand in a court of justice which was known, at the adoption of the constitution, as an action at law or a suit in chancery. It also includes all actions, since provided for, in which personal or private rights are involved, which belong to the same class, or are of the same nature, as previously existing actions at law or in equity. Such are eases where the legislature creates a new statutory remedy for the recovery of property, or for damages occasioned by the infringement of a right. There are many special statutory proceedings which involve rights, but which are not within the terms of the constitution, because they are not causes at law or in equity. This proceeding has never been regarded, under common law or equity practice, as a cause at law or in equity, and is not of the same nature as such a cause.” In 1905 that case was affirmed in Quartier v. Dowiat, 219 Ill. 326, 76 N. E. 371.
In Williamson v. Lane, 52 Tex. 335, the supreme court of Texas held that “The determination of the result of an election is not a matter pertaining to the ordinary jurisdiction of the law in courts of justice. It is in the nature of a political question, to be regulated, under the constitution, by the political authority of the state.” It has also been held by very respectable authority that the holding and conducting of elections is exclusively under the control, direction and management of the political power of the state, and that the manner of conducting them and questions arising in declaring the results thereof, and the determination as to who has been duly elected to office, are all within the control of the political power of the state, and are entirely separate and independent from and outside of those powers known as the judicial power and authority of the state. This principle was
McCrary on Elections seems to recognize the fact that the matters involved in an election contest are not necessarily judicial in character. In other words, that they are at most merely quasi judicial, as he recognizes the power of the legislature to deprive the courts entirely of jurisdiction in such matters, or rather withhold jurisdiction from them. At sec. 344, he says: “Where the statute creates a board for the purpose of determining election contests and confers upon such board exclusive jurisdiction, in such cases the courts are deprived of jurisdiction to pass upon the results of any such contests.” Such a conclusion could not be arrived at if the determination of those controversies were recognized as of purely a judicial character and inherently belonging to the courts. The same principle has been recognized in a great number of authorities. (Hipp v. Supervisors, 62 Mich. 456, 29 N. W. 77; Moulton v. Reid, 54 Ala. 320; Parmeter v. Bourne, 8 Wash. 45, 35 Pac. 587; Clarke v. Rogers, 81 Ky. 43; State v. Judge Second Judicial District, 35 La. Ann. 89; State v. Police Jury, 41 La. Ann. 850, 6 South. 777; Skrine v. Jackson, 73 Ga. 377; Reynolds v. Police Jury, 44 La. Ann. 863, 11 South. 236; 15 Cyc. 394; Caldwell v. Barrett, 73 Ga. 604.) We conclude that the right of an elector to contest an election is of purely statutory origin, and that the determination of a contest is not of itself necessarily of such a judicial character as to inherently fall to the courts upon its creation, and that the legislative authority which grants the right may also designate or establish a board, body or tribunal
Incidental to this question arises another contention made by appellant to this effect: That under sec. 119 of the act of February 2, 1899 (Sess. Laws 1899, p. 60), “The election of any person to any public office .... may be contested. 2. When the incumbent was not eligible to the office at the time of the election,” and that he is therefore only pursuing the remedy there prescribed in raising the ineligibility of respondent to hold the office to which he was elected. Now, it must be conceded, we think, that we have on the statute books two remedies for reaching the ineligibility of a person to hold office; one by contest under the provisions of the foregoing act; the other by information in the nature of quo warranto under secs. 4612 to 4619, Kev. Stat.
“It is a matter of great difficulty to draw the exact line of demarcation between executive and judicial powers, and of still more difficulty to define with accuracy how far executive officers, in the discharge of executive or ministerial duties, may bind the other departments of government by the exercise of quasi-judicial functions. But we regard it as an indisputable proposition that where the inquiry to be made involves questions of law as well as fact, where it affects a legal right, and where the decision may result in terminating or •destroying that right, .the powers to be exercised and the duties to be discharged are essentially judicial, and are such as cannot constitutionally be delegated to or imposed upon executive officers.” That court concluded by holding that an ascertainment and determination of the legal disqualification of a person to hold office “is essentially judicial,” and that while the board might, in the first instance, pass upon it, that it would still be open to the courts for final consideration in case it became necessary to resort to the courts in order to carry out the order, determination or decision of the election board. (Dillon’s Munic. Corp., 4th ed., sec. 201.) As touching the principle involved see, also, Cummings v. State of Missouri, 4 Wall. 277, 18 L. ed. 356; In re Garland, 4 Wall. 333, 18 L. ed. 366.
In the light of the foregoing investigation and determination, we conclude that the proceeding, being an election contest, was brought in a court that had no jurisdiction of the subject and that the demurrer was properly sustained. We are also of the opinion that it could not be properly recog
We have been urged by the eminent and distinguished counsel on both sides in this controversy that whatever view we may take of the jurisdictional question just considered, we also pass upon and define the terms “celestial” and “patriarchal” marriage as they are used in the above-quoted section of the constitution. We appreciate the fact that this case might be determined and disposed of by us on the jurisdictional question alone. On the other hand, the demurrer raised the sufficiency of the complaint, and particularly in respect to its charging defendant with celestial and patriarchal marriage, and the demurrer was sustained generally by the trial court without specifying upon which ground. Both the jurisdictional question and the sufficiency of the complaint have been fully and exhaustively argued, both orally and by briefs, and the questions are directly raised and have been fully presented to the court. Under that condition of the proceeding, we are inclined to the belief that we should pass upon this latter question and that our decision thereon would be a judicial expression as distinguished from obiter dictum (Buckner v. Chicago M. & N. W. Ry, Co., 60 Wis. 264, 19 N. W. 56; Florida Cent. Ry. Co. v. Schutte, 103 U. S. 118, 6 L. ed. 327; Kane v. McCown, 55 Mo. 181), and would be binding upon the court in any future litigation involving the construction of these terms as employed in the constitution. In view of these considerations, and of the high attainments and professional standing of the respective attorneys in this case, and their request and stipulation made in open court for a decision on this branch of the case, and in the light of the further contention made by them that the question involved is of such general public importance that the views of the court of last resort ought to be speedily given thereon, the court has consequently examined the matter with more than usual care and diligence, and we briefly express the conclusion reached by our research and investigation.
In the first place, it is urged by appellant and admitted by respondent that sec. 3, art. 6 of the constitution is self-
It requires no argument nor citation of authority to establish the proposition as a well-founded legal conclusion that no one can exercise the elective franchise, serve on a jury or hold office who comes within the inhibition of sec. 3 of the “Suffrage and Elections” article of the constitution. In such case the only inquiry to be made is: Does the defendant come within the constitutional enumeration of prohibited persons or classes as charged in the complaint?
On February 3, 1885, the territorial legislature passed an act regulating elections within the territory and prescribing the qualifications of electors, and see. 16 of the act contained what has been popularly known ever since as the “Test Oath” (Sess. Laws, 1885, p. 110). At that time it was generally conceded, we believe, even by the Mormon authorities and ecclesiastics themselves, that bigamy, polygamy, and plural and celestial marriage was a tenet of the Church of Jesus Christ of Latter-Day Saints, and was taught by it and practiced by some of its members. In support of this assumption, see Extracts from Church History and Church Doctrines, quoted in Hilton v. Roylance, 25 Utah, 129, 91 Am. St. Rep. 821, 69 Pac. 660, 58 L. R. A. 723. See, also, Davis v. Beason, 133 U. S. 333, 10 Sup. Ct. 299, 33 L. ed. 637; Reynolds v. United States, 98 U. S. 145, 25 L. ed. 244; Late Corporation of Latter-Day Saints v. United States, 136 U. S. 1, 10 Sup. Ct. 792, 34 L. ed. 481. It was at that time a burning issue in this territory as to whether anyone who taught such a doctrine or creed or practiced the principles thus taught should be allowed the elective franchise or to hold any office of profit or trust. The test oath provision was incorporated into see. 504 of the Revised Statutes of 1887, and its substance was also embodied into sec. 501 of the same code. In 1889 the case of Davis v. Beason was taken to the supreme court of the
It would be useless to go to dictionaries and lexicons for definitions of such words and terms as “celestial marriage” and “patriarchal marriage” as here used in the organic law of the state. We are now removed nearly nineteen years from the time about which we must inquire as to the social, civil and political conditions that confronted the constitutional convention and the people of this territory, and for that information we must turn to the public history of the day as it can be gathered from the press, public writings and current literature of that time, aided by whatever memory we may have left as to the occurrences of those days. The principal and primary object of the people and their representatives in the constitutional convention was to suppress and forever outlaw and discountenance bigamy and polygamy within the state of Idaho, under whatever name or designation it might
Prior to the foregoing utterances by President Woodruff, Orson Pratt, an elder of the church, who appears to have attained a high standing as an expounder of the church doctrine, said: “It seems, then, that if we wish to fulfill the object of our creation and if we are truly in the Lord, we must go into the eternal world as married, not for time, not by some justice of the peace that is an infidel, not by a man that has no right to join us together under the revelation and authority of the Most High, but we must be married for eternity by a man who has the right to speak, being commanded of the Lord, holding the keys of authority and power, who can say to the man and woman, ‘I pronounce you husband and wife for time and all eternity.’ Then you will be
In the “Articles of Faith,” page 457, written by Dr. James E. Talmage, acting under appointment and by authority of the church, the author wrote: “Marriage, as regarded by the Latter-Day Saints, is ordained of God, and designed to be an eternal relationship of the sexes. With this people it is not merely a temporal contract to be of effect on earth-during the mortal existence of the parties, but a solemn agreement which is to extend beyond the grave. In the complete ceremony of marriage, as prescribed by the church, the man and the woman are placed under covenant of mutual fidelity — not ‘until death do you part,’ but ‘for time and for all eternity.’ A contract as far-reaching as this, extending not only throughout time, but into the domain of the hereafter, requires for its validation an authority superior to that of earth; and such an authority is found in the holy priesthood, which, given of God, is eternal.”
In the “Key to Theology,” by Parley P. Pratt, as reported in Hilton v. Roylance, with reference to the binding
President Brigham Young of the Mormon Church is reported, in Hilton v. Roylance, to have stated in a public discourse as late as May 8, 1870, as follows: “I will say a few words on a subject which has been mentioned here; that is celestial marriage. God has given a revelation to seal for time and for eternity, just as he did in the days of old. In our own days he has commanded his people to receive the new and everlasting covenant, and he has said, ‘If ye abide not that covenant, then are ye damned.’ We have received it.” And to similar effect is the discussion of President Taylor of the church in speaking on the subject of celestial marriage, wherein he said: “God has revealed through his servant, Joseph Smith, something more.He has revealed unto us the law of celestial marriage, associated with which is the principle of plural marriage.”
In the Hilton-.Roylance ease, in considering and discussing when a celestial marriage begins and ends, the court says: “In 1 Whitney, Hist. Utah, p. 212, speaking of the doctrine of celestial marriage, the author said: ‘It was to the Latter-Day Saints the key to the celestial kingdom, where, according to their faith, family relationships formed on earth according to Divine law will be perpetuated. Hence, the revelation enjoining celestial marriage was entitled, “Revelation on the Eternity of the Marriage Covenant, including plurality of wives. ” How can “family relationships” be formed on earth, and “perpetuated” in the celestial kingdom, if they are not to begin until both parties are dead? Evidently, the historian
From the foregoing it seems clear that the church looked upon and regarded marriages celebrated and solemnized by mere civil authority and with only the sanction of law as marriages for “time only,” while a marriage solemnized by a duly constituted church authority, or, as they put it, “by the holy and eternal priesthood of the saints,” was termed and designated by them as a “celestial” or “patriarchal” marriage, binding not only during this life, but throughout the life to come.
It will also be seen at once from these quotations and citations, that at the time of the constitutional convention the church recognized the two kinds of marriage — one for time only, or, in other words, for this life only; and the other for both time and eternity, or for this life and the life hereafter. The latter were termed “celestial” or “patriarchal” marriages. Now, it was evidently the intention of the convention to prohibit more than one celestial or “time and eternity” marriage, as well as to prohibit more than one terrestrial or “time only” marriage. But the prohibition on the celestial or patriarchal marriage was only intended to extend to the same period of time and to the same extent as the prohibition on the time marriage — namely, to this life. 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 believing anything he wants to believe with reference to the future. They do not deal with beliefs but with acts and practices. They protect any man in believing anything he wants to believe with reference to the future, but they prohibit him from acting or practicing anything in any manner contrary to good
As said by Chief Justice Waite in Reynolds v. United States, 98 U. S. 145, 25 L. ed. 244: “Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices. ’ ’
This conclusion is clearly borne out and supported by the provisions of sec. 4 of art. 1 of the constitution, known as the “Declaration of Bights.” There the framers of the constitution specifically recognized the right of everyone to the “enjoyment of religious faith and worship,” and asserted that no one should ever “be denied any civil or political right, privilege or capacity on account of his religious opinions.” It also provided that “liberty of conscience” should not be construed to either justify or “excuse acts of licentiousness or justify polygamous or other pernicious practices, .... nor to permit any person, organization or association to directly or indirectly aid or abet, counsel or advise any person to commit the crime of bigamy or polygamy, or any other crime.” The section referred to is as follows:
“Sec. 4. The exercise and enjoyment of religious faith and worship shall forever be guaranteed; and no person shall be denied any civil or political right, privilege or capacity on account of his religious opinions; but the liberty of conscience hereby secured shall not be construed to dispense with oaths or affirmations, or excuse acts of licentiousness or justify polygamous or other pernicious practices, inconsistent with morality or the peace or safety of the state; nor to permit any person, organization or association to directly or indirectly aid or abet, counsel or advise, any person to commit the crime of bigamy or polygamy, or any other crime. No person shall be required to attend or support any ministry or place of worship, religious sect or denomination, or pay tithes against his consent; nor shall any preference be given by law to any religious denomination or mode of worship. Bigamy and polygamy are forever prohibited in the state, and the legislature shall provide by law for the punishment of such crimes.”
Following closely upon the adoption of the constitution by popular vote, the supreme court of the United States, in Davis v. Beason, sustained and affirmed the power of a territory or state to place such restrictions and limitations on the right of franchise as contained in this constitution. Soon thereafter, and in the autumn of 1890, the president of the church, 'Wilford Woodruff, issued what has been popularly known as the “Manifesto,” whereby the church authorities renounced the doctrine of bigamy and polygamy and declared that it should no longer be a tenet of the church or of their religious faith or doctrine and should not be taught or practiced by it or any of its members or adherents. ‘ This declaration by the church authorities was accepted by the United
The state of Idaho also accepted their declaration, and from 1894 to the present time, so far as we are informed, the members and adherents of the Mormon Church have quite generally exercised the right of franchise as fully as any other class or body of our citizens. In their exercise of this right all our citizens seem to have assented until within the last few years. The inhibitions of see. 3, art. 6 of the constitution, however, are just as positive to-day as ever against any person who may fall within its prohibitions. Whether they do or not is in every case purely a question of fact.
In the light of the foregoing inquiry and investigations, we conclude that 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 and forbid a man having more than one wife at any one time under whatever name or designation he might choose to style his marriage; and that the use of each of those words was directed against bigamous and polygamous marriages. A celestial or patriarchal marriage, therefore, in order to come within the prohibition of the provision of the constitution must be bigamous or polygamous. One who teaches or practices having more than one wife at any one time or belongs to an organization that teaches such.a doctrine is disqualified for the duties of an elector, and consequently for holding any civil office under the laws of this state. On the other hand, it was never intended by the constitution to in any manner interfere with the religious beliefs and opinions of anyone. The constitution was directed against acts, practices and teachings with reference to this life, and not against beliefs and opinions in regard to the hereafter.