Wooley v. Watkins , 2 Idaho 590 ( 1889 )

WEIR, C. J.

(After Stating the Facts.) — The argument of this ease at bar took a wide range, but the real questions involved lie in a narrow compass. They may be briefly stated in the following order: 1. Was the relator, at the time he demanded and was refused registration, a member of any order, organization, or association, and, if so, does that order, organization, or association teach, advise, counsel or encourage its members, devotees or other persons to commit the crime of bigamy or polygamy, or any other crime forbidden by law, as a duty arising from membership in such order, organization, or association? 2. Has the territorial legislature the power to legislate upon the subject of the elective franchise, and prescribe the qualifications of voters of the territory, and to declare by statute that these qualifications shall be verified by the oath of the elector? 3. If so, did that legislative body exceed its power and infringe upon any of the provisions of the constitution of the United States in the exercise of that power ?

The relator and respondents disposed of one of the questions of fact involved in the first proposition by a stipulation in writing, which was given in evidence upon the trial below. This stipulation is expressed in these words: “In this cause the following facts are agreed to: That the plaintiff is a native-born citizen of the United States, over twenty-one years of age, and has resided in Bear Lake county and Paris precinct for ten years; that he is not under guardianship, non compos mentis, or insane, and that he has never been convicted of felony, bribery, or treason; that he is not a bigamist or polygamist; that he does not teach, advise, counsel or encourage persons to commit the crime of bigamy or polygamy, or any other crime defined by law, or to enter .into the relation known as the ‘plural’ or ‘celestial’ marriage, unless ha does so by the bare fact that he is a member of the Mormon church; that he is a member of what is known as the ‘Utah,’ or regular, branch of the Mormon church, as distinguished from the reorganized, or ‘Josephite,’ branch of said church.” By this agreement the fact is admitted that the relator was, at the time he applied for and was refused registration, a member of an order, or organization, or association, known as the “Utah,” or regular, branch of the Mormon church. And the learned judge before whom the case was tried found from the evidence before him the fact that the order, organization, or association known as the “Utah,” or regular, branch of the Mormon church, of which the relator, by the agreement above recited, admits that he is a member, teaches, advises, counsels and encourages its members, devotees and others to commit the crime of bigamy or polygamy, as a duty arising or resulting from membership in said order, organization, or association. From a careful review of the evidence recited by the judge in his findings we think it is amply sufficient to sustain his conclusions of fact on this point.

The consideration of the second proposition requires an examination of the scope of the legislative power given by Congress to the legislative assembly of the territory of Idaho. This power is embraced in tbe organic act, and is to be found in sections 1851 and 1860 of the Kevised Statutes of the United-States. Section 1851 provides that “the legislative power of every territory shall extend to all rightful subjects of legislation not inconsistent with the laws and' constitution of the United States.” Section 1860 declares that “at all subsequent elections, however, in any territory hereafter organized by Congress, as well as at all elections in territories already organized, the qualifications of voters and of holding office shall be such as may be prescribed by the legislative assembly of each territory, subject, nevertheless, to the following restrictions, .... namely: 1. The right of suffrage and of holding office shall be exercised only by citizens of the United States above the age of twenty-one years, and by those above that age who have declared on oath, before a competent court of record, their intention to become such, and have taken an oath to support the constitution and government of the United States. 2. There shall be no denial of the elective franchise,- or of holding office, to a citizen on account of race, color, or previous condition of servitude. 3. No officer, soldier, seaman, mariner, or other person in the army or navy, or attached to troops in the service of the United States, shall be allowed to vote in any territory by reason of being on service therein, unless such territory is, and has been for the period of six months, his permanent domicile. 4. No person belonging to the army or navy shall be elected to or hold any civil office or appointment in any territory,” except officers of the army on the retired list. That these sections of the organic act confer upon the territorial assembly of Idaho the power to legislate upon the question of suffrage, and to prescribe the qualifications of voters in the territory, subject to the conditions and restrictions contained in said act, is, we think, very plain; too plain, indeed, to admit of argument. But it is contended by the learned counsel for the appellant that, if they do confer such power, Congress afterward, by the act of March 22, 1882, having assumed to legislate upon the same subject, thereby withdrew or revoked that power, and that the territorial statute in question, having been passed after that withdrawal or revocation, is void for want of authority in the territorial assembly to pass it. This theory of interpretation is, in effect, that Congress, by the act referred to, repealed those provisions of the organic act above recited, which confer power upon the territorial legislature to prescribe the qualifications and disabilities of voters of the territory. This view may commend itself for ingenuity, but cannot be recognized as sound. It is not a correct construction of the statutes referred to. If Congress intended that act to have any such effect, it would have so declared by express terms, and would not have left its intention to inference. Repeal by inference or implication is not favored in the law. It is held to occur only where different statutes cover the same ground, and there is a clear 'and irreconcilable conflict between the earlier and the later. (Board v. Coal Co., 93 U. S. 619; Movius v. Arthur, 95 U. S. 144; Arthur v. Homer, 96 U. S. 137; Chew Heong v. United States, 112 U. S. 536, 5 Sup. Ct. Rep. 255.) A careful reading and comparison of the provisions' of the act of Congress of March 22, 1882, and those of the act of the territorial assembly of February 3, 1885, which bear upon this subject, fail to develop such a clear and irreconcilable conflict between them as brings them within the rule above stated; but, on the contrary, plainly shows that the power conferred by Congress upon the territorial assembly to prescribe the qualifications and disabilities of voters in the territory is not absolute, and exclusive of the power of Congress to legislate upon the same subject, but is concurrent, and must be exercised subject to the constitutional limitations and restrictions imposed by Congress in the organic act.

The question involved in the third proposition is more difficult, and its solution requires careful thought. It is contended that those parts of the act of the territorial legislature which prescribe the qualifications of electors of the territory, and which require those qualifications to be verified by the oath of the elector, are in conflict with those provisions of the constitution of the United States which declare (1) that Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; (2) that no religious test shall be. required as a qualification to any office of' trust under the United States; (3) that no bill of attainder or ex post facto law shall be passed; and (4) that no person shall be deprived of life, liberty, or property without due process of law. Those parts of the territorial statute objected to as obnoxious to these provisions read as follows: “No person who is a bigamist or polygamist, or who teaches, advises, counsels, or encourages 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, or who is a member of any order, organization, or association which teaches, advises, counsels, 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 such order, organization, or association, or otherwise, is permitted to vote at any election, or to hold any position or office of honor, trust, or profit within this territory.” (Rev. Stats. 1887, sec. 501.) That part of the oath which the elector is required to take to verify that he is not within tbe scope of. any of these disabilities is as follows: “I do swear that I am not a bigamist or polygamist; that I am not a member of any order, organization, or association which teaches, advises, counsels, or encourages its members, devotees, or any other persons to commit the crime of bigamy or polygamy, or any other crime defined by law, as a duty arising or resulting from membership in such order, organization, or association, or which practices bigamy or polygamy, or plural or celestial marriage, as a doctrinal rite of such organization; that I do not, and will not, publicly or privately, or in any manner whatever, teach, advise, counsel, or encourage any person to commit the crime of bigamy or polygamy, or any other crime defined by law, either as a religious duty, or otherwise; that I do regard the constitution of the United States, and the laws thereof, and of this territory, as interpreted by the courts as the supreme law of the land, the teachings of any order, organization, or association to the contrary notwithstanding.”

More than three-quarters of a century ago that great lawyer and eminent jurist, Chief Justice Marshall, announced a rule of interpretation in cases involving alleged conflicts between statutes and constitutions, which has ever since commanded the highest respect of courts of justice. In Fletcher v. Peck, 6 Cranch, 87, he said: “The question whether a law be void for its repugnancy to the constitution is, at all times, a question of much delicacy, which ought seldom, if ever, to be decided in the affirmative in a doubtful case. The court, when impelled by duty to render such a judgment, would be unworthy of its station could it be unmindful of the solemn obligations which that station imposes. But it is not on slight implication and vague conjecture that the legislature is to be pronounced to have transcended its powers, and its acts to be considered as void. The opposition between the constitution and the law should be such that the judge feels ■ a clear and strong conviction of their incompatibility with each other.” And more than fifty years ago Chief Justice Shaw, in considering this question in the Wellington Case, 16 Pick. 96, 26 Am. DeC. 631, used similar, if not stronger, language. In that case he declared that "the delicacy and importance of the subject may render it not improper to repeat what has been so often suggested by courts of justice, that when called upon to pronounce the invalidity of an act of legislation, passed with all the forms and solemnities requisite to give it the force of law, courts will approach the question with great caution, examine it in every possible aspect, and ponder upon it as long as deliberation and patient attention can throw any new light upoh the subject, and never declare a statute void unless the nullity and invalidity of the act are placed in their judgment beyond reasonable doubt.” Again, Mr. Justice Washington, in rendering the opinion of the court in Ogden v. Saunders, 12 Wheat. 213, which involved a like question, said: “If I could 'rest my opinion in favor of the constitutionality of the law on which the question arises on no other ground than this doubt so felt and acknowledged, that alone would, in my estimation, be a satisfactory vindication of it. It is but a decent respect due to the wisdom, the integrity, and the patriotism of the legislative body by which any law is passed, to presume in favor of its validity, until its violation of the constitution is proved beyond all reasonable doubt.” This rule has been recognized and followed ever since by all the courts of last resort, state and federal, in the United States, in eases where they have been called upon to decide questions of this kind.

It will be. observed, by a careful examination, that the law objected to as being repugnant to the first two provisions of the constitution above recited is not directed against the entertaining and free exercise of religious opinions and religious beliefs, but is expressly aimed against sucb overt acts as violate the law in putting those opinons and beliefs into practice. While Congress, and, consequently, the territorial assembly, are deprived of all legislative power over mere opinion, they are left free to reach actions which are of a criminal nature, and are in violation of social duties, and subversive of good order. This distinction is stated with great clearness by the supreme court of the United States in the Reynolds Case, 98 U. S. 166, Chief Justice Waite, in delivering the opinion of the court, in a few appropriate and well-chosen illustrations demonstrated the distinction with great force. He there said that “laws are made for the government of actions, and, while they cannot interfere with mere religious belief and opinions, they may with practices. Suppose one believed that human sacrifices were a necessary part of religious worship, would it be seriously contended that the civil government under which he lived could not interfere to prevent a sacrifice? Or, if a wife religiously believed it was her duty to burn herself upon the funeral pile of her dead husband, would it be beyond the power of the civil government to prevent her carrying her belief into practice? So here, as a law of the organization of society, under the exclusive dominion of the United States, it is provided that plural marriages shall not be allowed. Can a man excuse his practices to the contrary because of his religious belief? To permit this would be to make the professed doctrines of religious beliefs superior to the law of the land, and, in effect, to permit every citizen to be* come a law unto himself. Government could exist only in name under such circumstances.” This reasoning and these illustrations apply with as much appropriateness and force to the case in hand as they do to the one cited, and we do not think it necessary to extend the length of this opinion by further discussion to establish the soundness of the distinction pointed out. Orders, organizations, and associations, by whatever name they may be called, which teach, advise, counsel, or encourage the practice or .commission of acts forbidden by law, are criminal organizations. To become and continue to be members of such organizations or associations are such overt acts of recognition and participation as make them particeps criminis, and as guilty, in contemplation of criminal law, as though they actually engaged in furthering their unlawful objects and purposes.

To demonstrate the unsoundness of the position so earnestly urged by the appellant’s counsel — namely, that the statute in question is in conflict with that provision of the federal constitution which declares against the passage of ex ■post facto laws, it is only necessary to compare the terms of the statute with what the courts have so often defined this provision to mean. They have decided time and again that an ex post facto law, within the meaning of this clause, is “one which is enacted after the offense has been committed, and which, in relation to it or its consequences, alters the situation of the accused to his disadvantage.” (1 Kent’s Commentaries, 409; Cummings v. State of Missouri, 4 Wall. 277; Ex parte Garland, 4 Wall. 333; Fletcher v. Peck, 6 Cranch, 97; Sedgwick’s Statutory and Constitutional Law, 2d ed., 558; Pierce v. Carskadon, 16 Wall. 234.) By a careful reading of the law objected to it will be observed that it treats of the present and future, and not of the past. Its operation is entirely present and prospective, and does not come within the scope of the above definition, and is in no sense ex post facto. It does not possess any of the features or characteristics of such a law. A law which simply prescribes the qualifications of voters and provides a mode of ascertaining those qualifications, does not, in our view, conflict with this clause of the constitution. “A state having the sovereign power to prescribe the qualifications of its electors may impose a test oath to be taken by every voter at the poll. This in no way violates the constitution of the United States.” (Blair v. Ridgley, 41 Mo. 63, 97 Am. Dec. 248, and note; Innis v. Bolton, ante, p. 442, 17 Pac. 264.) It is also insisted that the law in question is null and void because it violates that provision of the constitution of the United States which declares “that no' person shall be deprived of life, liberty, or property, without due process of law.” The law under consideration- does no more than prescribe the qualifications and disabilities of voters of the territory, and points out the mode by which these qualifications and disabilities shall be ascertained. It is difficult to see wherein these provisions are inconsistent with this clause of the constitution. “Among the absolute, unqualified rights of the states is that of regulating the elective franchise; it is the foundation of state authority. The right oí suffrage is altogether a conventional one. It may be granted, abridged, or taken away by the state government in its discretion, except so far as it is secured by the'state constitution.” (Anderson v. Baker, 23 Md. 531.) Upon a careful consideration of the whole case we are unable to discover that the statute in question is so clearly repugnant to the provisions of the constitution of the United States as would justify us in declaring it void on that ground, and the judgment of the court below must therefore be affirmed. Judgment affirmed.

All concur.