Cases Argued and Decided in the Supreme Court of the United States

OF THE

Supreme Court of the United States,

AT OCTOBER TERM, 1884.

JESSE J. MURPHY, Appt., LEXANDER RAMSEY, A. S. PADDOCK, &L GODFREY, A. B. CARLETON, J. 1 PETTIGREW, E. D. HOGE AND ARYEUR PRATT.

MARY ANN M. PRATT, Appt.,

CITANDER RAMSEY, A. S. PADDOCK,
¡L GODFREY, A. B. CARLETON, J.
APETTIGREW, E. D. HOGE AND JOHN
L LINDSAY

"AD

of Congress approved March 22, 1882, entitled
Act to Amend Sec.5352 of the Revised Statutes of the
United States in Reference to Bigamy, and for
Other Purposes," (22 Stat. at L., 80) have no power
over the registration of voters or the conduct of
elections. Their authority is limited to the appoint
ment of registration and election officers, to the
canass of the returns made by such officers of elec
tion, and to the issue of certificates of election to the
persons appearing by such canvass to be elected.

2. The registration and election officers thus ap
pointed are required, until other provisions be made
by the Legislative Assembly of the Territory, to per
form their duties under the existing laws of the
United States, including the Act of March 22, 188,
and of the Territory, so far as not inconsistent there
with.

3. As the Board of Commissioners had no lawful

power to prescribe conditions of registration or of
voting, any rules of that character promulgated by
them to govern the registration and election off-
cers were null and void; and as such rules could
not be pleaded by the registration officers as lawful

ELISED E. RANDALL AND ALFRED commands in justification of refusals to register

RANDALL, Appts.,

persons claiming the right to be registered as vot
ers, their illegality is no ground of liability against
the Board of Commissioners.

4. The registration officers were bound to register

LEXANDER RAMSEY, A. S. PADDOCK,
previously in force, and offering to take the oath as
EL GODFREY, A. B. CARLETON, J. to such qualifications prescribed by the Territorial
1 PETTIGREW, E. D. HOGE AND HAR-section of the Act of Congress of March 22, 1882.
Act of 1878, were also not disqualified by the eighth
PRATT

only such persons as, being qualified under the laws

5. That section provides, as to males, taat no polygamist, bigamist, or any person cohabiting with more than one woman; and, as to females, that no MIS C CLAWSON AND HIRAM B. or man cohabiting with more than one woman, shall woman cohabiting with any polygamist, bigamist,

CLAWSON, Appts.,

AITANDER RAMSEY, A. S. PADDOCK,
1. GODFREY, A. B. CARLETON, J.
LPETTIGREW, E.D. HOGE AND JAMES
LITTLE.

JAMES M. BARLOW, Appt.,

CHLANDER RAMSEY, A. S. PADDOCK,
&L GODFREY, A. B. CARLETON, J.
A PITTIGREW, E. D. HOGE AND HAR-
PRATT.

See £. C., Reporter's ed., 15-47.)

on of the Act of March 22, 1882, as to pers of Board of Commissioners Ty of Utah-duties of Registra finition of Bigamist or Polygnot Ex Post Facto.

The art of Commissioners appointed for the y of Crab in pursuance of sec. 9 of the Act

be entitled to vote, and, consequently, no such per-
son is entitled to be registered as a voter; and the
registration officer must either require such disqual-
oath, the form of which is given in the Territorial
ifications to be negatived by a modification of the
Act, or otherwise to satisfy himself by due inquiry
that such disqualifications do not exist; but which
course he is bound to adopt it is not necessary in
these cases to decide.

6. The plaintiffs in these actions, seeking to re-
cover damages for being unlawfully deprived of
their right to be registered as voters, must allege in
their declarations, as matter of fact, that they were
legally qualified voters, or, that allegation being
omitted, must allege all the facts necessary to show,
as matter of law, that they were qualified voters
and to this end it is necessary that they should neg-
ative all the disqualifications pronounced by the

law.

7. A bigamist or polygamist, in the sense of the eighth section of the Act of March 22, 1882, is a man who, having contracted a bigamous or polygamous marriage, and become the husband, at one time, of two or more wives, maintains that relation tered as a voter; and this without reference to the and status at the time when he offers to be regisquestion whether he was at any time guilty of the offense of bigamy or polygamy, or whether any apse of time; neither is it necessary that he should prosecution for such offense was barred by the be guilty of polygamy under the first section of the Act of March 22, 1882. The eighth section of the ⚫Head notes by Mr. Justice MATTHEWS.

[16]

114

Act is not intended, and does not operate, as an ad-
ditional penalty prescribed for the punishment of
the offense of polygamy, but merely defines it as a
disqualification of a voter. It is not, therefore, ob-
jectionable as an ex post facto law, and has no retro-
spective operation. The disfranchisement operates
upon the existing state and condition of the person

and not upon a past offense.

firmed.

8. It was accordingly held:
1. That, as to the five defendants below, compos-
ing the Board of Commissioners under the ninth sec-
tion of the Act of March 22, 1882, the demurrers
were rightly sustained, and the judgments are af-
2. That, in the cases in which Jesse J. Murphy and
James M. Barlow respectively were plaintiffs, they
do not allege that they were not polygamists or big-
amists at the time they offered to register, although
they deny that they were at that time liable to a
criminal prosecution for polygamy or bigamy, and
deny that they were cohabiting with more than one
woman, and not showing themselves to be legally
qualified voters, the judgments on the demurrers as

to all the defendants are affirmed.

3. That, in the case in which Ellen C. Clawson,
with her husband, is plaintiff, as the declaration
does not deny the disqualification of one who is at
the time cohabiting with a polygamist or bigamist,
the judgment as to all the defendants is affirmed.
4. That, in the cases in which Mary Ann M. Pratt
and Mildred E. Randall, with her husband, are the
respective plaintiffs, as all the disqualifications are
denied, and it is alleged that the defendants, the
registration officers, willfully and maliciously re-
fused to register them as voters, the judgments as
to Hoge and Lindsay in one, and as to Hoge and
Harmel Pratt in the other, are reversed, and the
causes remanded for further proceedings.

[Nos. 1027, 1028, 1029, 1030, 1031.]
Argued Jan. 28, 29, 1885. Decided Mar. 23, 1885.

and prior to the first day of July, 1882, under
the provisions of section 9 of an Act of the
Congress of the United States, approved March
22, 1882, and entitled 'An Act to Amend Sec-
tion 5352 of the Revised Statutes of the United
States, in Reference to Bigamy, and for Other
Purposes, the President of the United States,
by and with the consent of the Senate of the
United States, duly appointed the defendants,
Alexander Ramsey, A. S. Paddock, G. L. God-
frey, A. B. Carleton, and J. R. Pettigrew, to
perform the duties mentioned in said section,
to be performed by a board of five persons, and
by virtue of said appointment they became a
board of five persons with the powers named
in said section.

And, on information and belief, the plaint [18] iff alleges that, after such appointment, and prior to the first day of August, 1882, the last named five defendants, duly qualified as such appointees, came to Utah and organized as board and entered upon the exercise of the powers and the discharge of the duties granted and imposed by said section 9 of said Act of Congress. That after said organization, said five defendants were commonly called ' missioners,' and are hereinafter referred to and called the Board of Commissioners.'

com

"That said Board of Commissioners afterward ordered, directed and supervised a regis. tration of the the voters of the Territory of Utah, for the general election in said Territory,

APPEALS from the Supreme Court of the to be held on the 7th day of November, 1882,

Territory of Utah.

The history and facts fully appear in the

for the election of a Delegate for said Territory to the Forty-eighth Congress, and for such other elections as might be held prior to another reg.

Statement of the case by Mr. Justice Mat-istration of voters of said Territory: and on or thews:

'Rule I.

'Rule II.

about the 10th day of August, 1882, the said In these actions, five in number, Alexander Board of Commissioners made and published Ramsey, A. S. Paddock, G. L. Godfrey, A. B. rules providing for said registration, for the ap Carleton and J. R. Pettigrew, defendants in all, pointment of registration officers and judges of were persons who composed the board appoint-election, and the canvass and return of the votes; ed under section 9 of the Act of Congress ap-directed said registration to be made during the proved March 22, 1882, entitled "An Act to week commencing on the second Monday of Amend Section Fifty-three hundred and fifty- September, 1882, and, among other rules, willtwo of the Revised Statutes of the United States, fully and maliciously made and published the in Reference to Bigamy, and for Other Purposes." following: 22 Stat.at L.80. E. D. Hoge, also a defendant in There shall be appointed one registration all the cases, was appointed registration officer for the County of Salt Lake in the Territory of officer for each county, and one deputy regis Utah, by that board, in pursuance of that sec-tration officer for each precinct thereof. tion of the Act. The other defendants (one of whom is joined in each action), to wit: Arthur Pratt, John S. Lindsay, Harmel Pratt and James T. Little, were respectively deputy registration officers in designated election precincts in which the plaintiffs in the actions severally claimed the right to be registered as voters. The object of the actions was to recover damages, alleged to have arisen by reason of the defendants wrongfully and maliciously refusing to permit the plaintiffs respectively to be registered as qualified voters in the Territory of Utah, whereby they were deprived of the right to vote at an election held in that Territory on November 7th, 1882, for the election of a delegate to the forty-eighth Congress. In the case in which Jesse J. Murphy is plaintiff below and appellant here, the complaint is as follows:

"The plaintiff above named complains of the defendants, and on information and belief al leges, that after the 22d day of March, 1882,

'Such registration officer shall, on the sec ond Monday of September next, proceed by himself and his deputies in the manner following: The registration officer of each county shall procure from the clerk of the county court the last preceding registry list on file in his office, and shall, by himself or his deputies, require of each person whose name is on said list, or who applies to have his name placed on said list, to take and subscribe the following oath or af firmation:

88.

Territory of Utah, County of 'I, being first duly sworn (or affirmed), depose and say: That I am over twenty-one years of age, and have resided in the Territory of Utah for six months, and in the one month immediately preceding the date hereof, and (if a male) am a native born or naturalized (as the case may be) citizen of the United States, and a taxpayer in

precinct of

114 U. S.

[17]

[20]

this Territory (or if a female) I am native born,
or naturalized, or the wife, widow or daughter
(as the case may be) of a native born or natural-
ized citizen of the United States; and I do fur-
ther solemnly swear (or affirm) that I am not a
bigamist nor a polygamist; that I am not a vio-
lator of the laws of the United States prohibit-
ing bigamy or polygamy; that I do not live or
cohabit with more than one woman in the mar-
riage relation, nor does any relation exist be-
tween me and any woman which has been en-
tered into or continued in violation of the said
laws of the United States prohibiting bigamy or
polygamy, (and if a woman) that I am not the
wife of a polygamist, nor have I entered into
any relation with any man in violation of the
laws of the United States concerning polygamy
or bigamy.

'Subscribed and sworn to before me, this
day of
1881.

'Registration Officer,

Precinct.'

And said registration officer, or his deputies, shall add to said lists the names of all qualified voters in such precinct whose names are not on the list, upon their taking and subscribing to the aforesaid oath; and the said registration officer shall strike from said lists the names of said persons who fail or refuse to take said oath, or have died or removed from the precinct, or are disqualified as voters under the Act of Congress approved March 22d, A. D. 1882, entitled An Act to Amend Section 5352 of the Revised Statutes of the United States, in Reference to Bigamy, and for Other Purposes;' Provided, That the action of any registration officer may be revised and reversed by this commission, upon a proper showing; And provided, further, That if the registration officer be unable to procure the registration list from the office of the clerk of the county, or if the same have been lost or destroyed, the said ofcer and his deputies shall make a new registry list in full of all legal voters of each precinct of the county, u. der the provisions of these rules.'

'That said Board of Commissioners also, by rules, provided for the appointment of and appointed three judges of election for each election precinct in said Territory.

than twenty-one years of age; that he has re-
sided continuously in the Territory of Utah for
more than eleven years, and resided continu-
ously in the fourth precinct of Salt Lake City
in said Territory for more than two years past;
that he has, for more than ten years prior to the
November election in 1882, lawfully exercised
the rights and enjoyed the privileges of the
elective franchise in said Territory, and has, for
more than ten years last past, owned taxable
property and been a taxpayer in said Territory;
and that his name was on the last registration
list of the voters of the second precinct, Ogden
City, Weber County Utah, made prior to the
second Monday of September, 1882.

"And the plaintiff alleges that he has not,
since more than three years prior to March 22,
1882, married or entered into any marriage con-
tract or relation with any woman, or in any-
wise violated the Act of Congress approved July
1, 1862, defining and providing for the punish-
ment of bigamy in the Territories, and has re-
sided continuously and openly in the counties
of Weber and Salt Lake, Utah, for ten years
last past, and has not violated any of the pro-
visions of the Act of Congress approved March
22, 1882, entitled 'An Act to Amend Section
5352 of the Revised Statutes of the United
States, in Reference to Bigamy, and for Other
Purposes;' and that he has not, on or since the
22d day of March, 1882, cohabited with more
than one woman, and has never been charged
with or accused or convicted of bigamy or po-
lygamy, or cohabiting with more than one wo-
man, in any court or before any officer or tri-
bunal.

"And the plaintiff alleges that on the 13th day of September, 1882, he personally went before the defendant Arthur Pratt, then acting as deputy registration officer in and for the fourth precinct in Salt Lake City aforesaid, and signed and presented to said defendant, and offered to verify, and requested the said defendant to take and certify plaintiff's oath to the following affidavit, to wit:

Territory of Utah,

County of Salt Lake, S

I, Jesse J. Murphy, being first duly sworn,
depose and say: I am over twenty-one years of
"And on information and belief, the plaint- age, and have continuously resided in the Ter-
iff alleges that the defendant E. D. Hoge, was ritory of Utah for more than six months, to
appointed registration officer for the County of wit: for more than eleven years last past; I have
Salt Lake, in said Territory of Utah, and the resided in the fourth precinct of Salt Lake City
defendant Arthur Pratt, was appointed deputy more than six months next preceding the date
registration officer for the fourth election pre- hereof, and now reside therein; I am a male
cinct of the City of Salt Lake in said county, native born citizen of the United States of Amer-
and that each accepted the appointment, duly ica, and a property owner and taxpayer in said
qualified, and respectively acted throughout the Territory of Utah. I have, under the laws of
said registration as such registration and deputy the Territory of Utah, exercised the elective
registration officer.
franchise in said Territory for more than ten
"And the plaintiff alleges that on the sec-years last past. I have not, within three years
ond Monday of September, 1882, the defendant
Arthur Pratt, as deputy registration officer for
said fourth precinct in the City and County of
Salt Lake aforesaid, acting under the direction
of the other defendants, commenced registering
the voters of said precinct and making a regis-
tration list of such voters, and continued daily
therein until the evening of Saturday of the
same week, when the registration was closed.
"And the plaintiff alleges that he is a native
citizen of the United States of America, and,
prior to the 22d day of March, 1882, was more

prior to the 22d day of March, 1882, or since,
having a wife living, married another, or an-
other woman; and I have continuously and
openly resided in the counties of Weber and
Salt Lake, in the Territory of Utah, for more
than three years prior to the 22d day of March,
1882, and I have not, on or since the 22d day of
March, 1882, having a wife living, married an-
other, or simultaneously, or on the same day,
married more than one woman, or on or since
said last named date married or entered into any
marriage contract or relation with any woman,

[21]

[22]

[17]

and not upon a past offense.

8. It was accordingly held:

firmed.

1. That, as to the five defendants below, compos-
ing the Board of Commissioners under the ninth sec-
tion of the Act of March 22, 1882, the demurrers
were rightly sustained, and the judgments are af-
2. That, in the cases in which Jesse J. Murphy and
James M. Barlow respectively were plaintiffs, they
do not allege that they were not polygamists or big-
amists at the time they offered to register, although
they deny that they were at that time liable to a
criminal prosecution for polygamy or bigamy, and
deny that they were cohabiting with more than one
woman, and not showing themselves to be legally
qualified voters, the judgments on the demurrers as
to all the defendants are affirmed.

[Nos. 1027, 1028, 1029, 1030, 1031.]
Argued Jan. 28, 29, 1885. Decided Mar. 23, 1835.

and prior to the first day of July, 1882, under the provisions of section 9 of an Act of the Congress of the United States, approved March 22, 1882, and entitled 'An Act to Amend Section 5352 of the Revised Statutes of the United States, in Reference to Bigamy, and for Other Purposes,' the President of the United States, by and with the consent of the Senate of the United States, duly appointed the defendants, Alexander Ramsey, A. 8. Paddock, G. L. God. frey, A. B. Carleton, and J. R. Pettigrew, to perform the duties mentioned in said section, to be performed by a board of five persons, and by virtue of said appointment they became a board of five persons with the powers named in said section.

“And, on information and belief, the plaintiff alleges that, after such appointment, and prior to the first day of August, 1882, the last named five defendants, duly qualified as such appointees, came to Utah and organized as board and entered upon the exercise of the powers and the discharge of the duties granted and imposed by said section 9 of said Act of Congress. That after said organization, said five defendants were commonly called 'com. missioners,' and are hereinafter referred to and called the Board of Commissioners.'

"That said Board of Commissioners afterward ordered, directed and supervised a registration of the the voters of the Territory of Utah, for the general election in said Territory,

APPEALS from the Supreme Court of the to be held on the 7th day of November, 1882,

Territory of Utah.

The history and facts fully appear in the

for the election of a Delegate for said Territory to the Forty-eighth Congress, and for such other elections as might be held prior to another reg

Statement of the case by Mr. Justice Mat-istration of voters of said Territory; and on or thews:

about the 10th day of August, 1882, the said Board of Commissioners made and published rules providing for said registration, for the ap pointment of registration officers and judges of election, and the canvass and return of the votes; directed said registration to be made during the week commencing on the second Monday of September, 1882, and, among other rules, willfully and maliciously made and published the following:

'Rule L.

'Rule II.

In these actions, five in number, Alexander Ramsey, A. S. Paddock, G. L. Godfrey, A. B. Carleton and J. R. Pettigrew, defendants in all, were persons who composed the board appointed under section 9 of the Act of Congress approved March 22, 1882, entitled "An Act to Amend Section Fifty-three hundred and fiftytwo of the Revised Statutes of the United States, in Reference to Bigamy, and for Other Purposes." 22 Stat.at L.80. E. D. Hoge, also a defendant in all the cases, was appointed registration officer "There shall be appointed one registration for the County of Salt Lake in the Territory of officer for each county, and one deputy regisUtah, by that board, in pursuance of that sec-tration officer for each precinct thereof. tion of the Act. The other defendants (one of whom is joined in each action), to wit: Arthur 'Such registration officer shall, on the secPratt, John S. Lindsay, Harmel Pratt and ond Monday of September next, proceed by himJames T. Little, were respectively deputy reg- self and his deputies in the manner following: istration officers in designated election precincts The registration officer of each county shall proin which the plaintiffs in the actions severally cure from the clerk of the county court the last claimed the right to be registered as voters. The preceding registry list on file in his office, and object of the actions was to recover damages, shall, by himself or his deputies, require of each alleged to have arisen by reason of the defend-person whose name is on said list, or who apants wrongfully and maliciously refusing to plies to have his name placed on said list, to permit the plaintiffs respectively to be regis- take and subscribe the following oath or aftered as qualified voters in the Territory of firmation: Utah, whereby they were deprived of the right to vote at an election held in that Territory on November 7th, 1882, for the election of a delegate to the forty-eighth Congress.

In the case in which Jesse J. Murphy is plaintiff below and appellant here, the complaint is as follows:

"The plaintiff above named complains of the defendants, and on information and belief alleges, that after the 22d day of March, 1882,

88.

preceding the date hereof, and (if a male) am a native born or naturalized (as the case may be) citizen of the United States, and a taxpayer in

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Cases Argued and Decided in the Supreme Court of the United ..., 114-117. sējumi