Anderson v. Tyree

Merritt, C. J.: By the judgment of the district court, the respondent was granted a writ of mandate, directing the appellant, as a registrar -of voters, to register her as a legal voter for the November election, 1895, to be held for the ratification or rejection of the proposed constitution, and for the election of state officers for,, the proposed state. The appellant appealed to this court. As the case is intended to test the right of women to vote in November, 1895, it is a matter of considerable public interest, and the question has been earnestly argued. However desirable woman suffrage may be, it must first be authorized by law, and the women of the territory will not wish to commence the exercise of such a privilege by voting illegally. In the argument, the right to vote for or against the constitution, and the right to vote for state officers,, have been discussed separately; and it will be convenient to follow that order, and first speak of the right to vote for or against the constitution. It was' conceded in the argument that the right of the — 147 — respondent to vote for or against the constitution rests on the enabling act of Congress. There are two prior acts of •Congress to which reference must be made. One disapproves an act of the legislature of the territory allowing woman suffrage, and prohibits its exercise in Utah. The ■other, usually referred to as the “Edmunds-Tucker Law/’ provides for registering voters, prescribes a registration ■oath, and prohibits from voting .any one who does not take the oath. Omitting special features of the oath, which require the voter to swear he is not a polygamist, etc., the principal personal qualifications are male citizenship, the age of 21 years and a residence in the territory of six months. The enabling act of Congress provides for the formation of a proposed constitution and state government, the ratification or rejection by the people, and, if so ratified, the result is to be certified to the president; and if he finds the constitution and state government are republican in form, and that the conditions of the enabling act have, been complied' with, he issues his proclamation announcing the result, and thereupon the state of Utah is deemed admitted. The enabling act is the legislation which settles the terms of admission, and the subject does mot go back to Congress. The scrutiny of the work is made an executive act and duty. All the compact relations between the United States and the future state are fixed by this act, and the methods and order of procedure to attain statehood are carefully pointed out and authorized. Section 1 introduces the subject, and declares, in substance, that the inhabitants of Utah territory may become the state of Utah, on the conditions named in the act. Section 2 takes up the order of procedure, and as elections will be required, and voters are necessary to elections, it first provides that male citizens over 21 years of age, and who have resided in the territory for a year, may vote for and choose delegates to the constitutional convention, and — 148 — that the delegates shall possess the qualifications of electors. After giving the number of the delegates, and distributing them to the various counties or precincts, it provides that the governor shall call an election on a day named in the section; that the Utah commission shall cause a new registration of voters to be made under the laws of the United States and said territory, except that the oath required for registration under said laws shall be so modified as to test the qualifications of the electors as prescribed in the enabling act, and the registration is to-conform as nearly as may be with the • provisions of such laws. After providing for the returns and canvass of the votes, this section finally provides that persons possessing the qualifications for electors of delegates shall be entitled to vote for or against the constitution, under such rules or regulations as the convention may prescribe, not in conflict with the act. Section 3 fixes a day and place for the delegates to meet, and directs that, after they organize, “ they shall declare on behalf of the people of said proposed state that they adopt the constitution of the United States, whereupon the said convention shall be and is hereby authorized to form a constitution and state government for said proposed state.” This section also gives mandatory conditions and limitations designed to preserve ’ federal relations. Section 4 provides that, if a constitution and state government shall be formed, the convention forming the same “shall provide by ordinance for submitting said constitution to the people of said state for its ratification or rejéction, at an election to be held on the Tuesday next after the first Monday in November, 1895, at which election the qualified voters of saicl proposed state shall vote directly for or against the proposed constitution, and for or against * * * any provisions separately submitted” (This last clause is italicized for aid of reference; it'is not italicized in the act.) It should be noted — 149 — that the enabling act authorizes the submission of separate provisions, but none were submitted, and the proposed •constitution provides for equal woman suffrage. These recitals present the case so far as the right to' vote for or against the constitution is concerned. The parties differ widely in their interpretation of the clause •of section 4 put in italics. For the respondent it is contended that in the phrase “the qualified voters of said proposed state” there is a reference' to all whom the constitution proposes to qualify, and who will be voters of the future state when it is admitted; that, when the constitution is formed, the class or classes referred to in section 4 are designed and authorized to vote for or against the constitution; and that, as the constitution, if adopted, will give equal woman suffrage, women are now entitled to vote for or against the constitution. In behalf of the .appellant, it is contended that there is no legislation in this clause qualifying or authorizing the qualification or •designation of any new class of voters, but only a direction of how voters otherwise qualified shall vote. This •difference in view seems to arise out of the use of the words “of said proposed state”; for, if the words ^qualified voters” stood alone, it could scarcely be said anything more was intended than that the voters should be -qualified by some law in force at the time of the election. The majority of the court cannot agree with the contention of the respondent. It is conceded that the grant ■of the elective franchise is permissive, and from its nature •excludes all not within the classes' pointed out, and that it requires a legislative enactment or authority to extend •the privileges to classes not previously enfranchised. We •are unable to find in the language italicized any legislative enactment or authority for extending the "suffrage to whomsoever the convention • may propose as voters for the future state, and this view is confirmed when the language — 150 — is construed in connection with the language of other parts of the act, and also taken in connection with the order of the various steps directed by Congress. If it was-the intention of Congress that voters residing within the-area called “said proposed state/'’ and then qualified by existing laws, might vote at the November election, and: should vote, if at all, directly for or against the constitution, and without coupling the question with any other subject which might aid in the ratification or rejection, the language is apt to the purjjose, and it is wholly inapt-to any other purpose. The voters were then to be qualified; that is, they were to be persons possessing the personal qualifications of age and male citizenship, and wera also to be residents of the geographical area mentioned.. To suggest the interpretation claimed by the respondent,, the structure of the clause must be changed to read “the-proposed qualified voters of said state.” We cannot take-such liberties with the language used, and especially when there is nothing in the act requiring it in order to carryout its intention, and when such a change would break the reference to the same words used before. It was conceded-in the argument that when, in a law, an expression is found with a definite meaning, and afterwards occurs, in the same act, it will be presumed to be used in the same sense. The first section, it will be seen, in pointing-out what persons and what area may become a state, uses, the words “inhabitants” for the persons, and the “territory of Utah” as descriptive of the area. In the third section the equivalent is “people of the proposed state,”’ and the expression “ said proposed state ” occurs three^ times in the section, and in connections when it is impossible to refer it to any antecedent except the “ territory of Utah ” of the first and second sections. When we-come to the language of section 4, the same expression is used, and with a reference back to some antecedent or — 151 — antecedents] and here, if the language “of said territory of Utah” is substituted, it gives the meaning in which it is used. From the time the words “said proposed state” are adopted in the third section, they are used in the act to describe area during the occurrence of events in the transition period; and, when events are named to take place after statehood, “state” is substituted for this expression. When the order of procedure directed by Congress is considered, it is seen that the subjects are taken up consecutively, and that each direction refers to a particular subject. Section 1 introduces the subject. Section 2 introduces the procedure by qualifying voters,-.and providing for the first election, and completes the subject of qualifying voters by saying who may vote at the second election, and this subject is not again mentioned. After this they are assumed to be qualified voters. The constitution and state government are formed under the third section, and that part of the fourth section referred to relates to what shall be done to adopt the instrument, and how the vote shall be taken. The instrument must be submitted to the people at an election to be held on a certain day, and it may be observed that day is the one on which the territorial election will be held, and for which the rules and regulations are provided by law. If this clause stopped here, the direction for submission would be complete; but Congress had one more purpose, and hence proceeded to provide that the voters must be permitted to vote directly on the question; and, to enforce this purpose, imperative language is used, which is never used in an act qualifying voters. A consideration of other laws of Congress, in connection with the enabling act, would lead to the same conclusion, but that can be deferred to the other branch of the case. It is sufficient on this branch that there is not in the enabling act any — 152 — authority for the respondent to vote, or any power given to authorize her to vote in 1895. The contention that the respondent is entitled to vote in 1895 for state officers is based on propositions which ■the majority of the court cannot accept. In addition to the claim that the italicized words of section 4 refer to the voters to be qualified in the proposed constitution, it is contended for the respondent that Congress has no power to fix the qualifications of voters for the proposed state officers; that, for the purpose of their election, the constitution is deemed as adopted and in force; that the people of the territory for this purpose are exercising, through their delegates, the sovereign powers of the people ■of a state, and have the right to fix the qualifications of the electors of state officers. It is, of course, conceded that the election and all the proceedings are conditional upon the attainment of statehood. This argument is based on a series of fictions for which we see no occasion or .authority. The constitution is not adopted or in force, ■and the state is not admitted. The people of 'the territory are not exercising sovereign powers on any subject. 'The enabling act expressly states (section 4) that the state ■shall be deemed admitted when the president’s proclamation shall be issued. Section 5 of the same act declares that the territorial officers shall remain until the admission of the state; and section 19 provides the state government, provisionally formed, shall remain in abeyance until the admission of the state. The constitutional convention declared, in section 16 of the schedule, that the provisions ■of the constitution shall be in force from the day the president shall issue his proclamation. Neither Congress nor the convention knew that by a fiction the constitution would be in force, or that the people would exercise sover■eign powers for any purpose until the constitution should be adopted and proclaimed. — 153 — The contention that Congress cannot define the qualifications oí voters for the first state officers, elected conditionally, while the territorial condition continues, because no such power exists as to the states, is clearly erroneous. It is too much like comparing the authority of a parent before and after the majority of his child. While the territorial condition continues, whatever political power its people exercise must be by authority of Congress. In all governmental affairs, whatever the people of a territory do must be authorized, and they must abstain from doing what is forbidden. Their elections, even on subjects relating to statehood, are territorial elections, and their voters are the electorate of the territory. In the compact for statehood, the people of the territory act for themselves and théir successors, the people of the future state, and the latter are bound by the conditions accepted by the former; and it seems like stumbling on a small obstacle to say the people of the territory may bind the state forever to all the conditions and limitations to preserve the authority of the general government, and cannot, by the acceptance of a permission to elect the first state officers in advance of statehood, bind the state to this temporary and comparatively unimportant thing. If this cannot be done, the result is not that the people of the territory are sovereign as to this, but that the state will not be bound. The grant of this sovereignty, as to the election of state officers and the legislative power of the convention, must be shown by the respondent;' and the claim seems to rest on inferences drawn from sections 5 and 19 of the enabling act. Section 5 provides for a representative in Congress, and that the representative, governor, and other officers provided for in the constitution may be elected on the same day the constitutional election is held. Section 19 provides that the convention may, by ordinance, provide for the election of officers for a full — 154 — state government, including members of the legislature and a representative in Congress, at the time for the election to ratify or reject the constitution. In these provisions are to be found, if at all; the grant of sovereignty to the people on this subject, and of legislative powers to the convention; and on these provisions rest the inference that as to this subject, the constitution is deemed in force, that it is a state election, and that Congress has no power to qualify the electorate. It will be seen the scope of the ordinance is very limited. By section 3, previously referred to, the convention is to form a constitution and state government as one instrument. In this the offices are created, and the terms, qualifications, and duties of the officers specified. Section 5 provides for a representative in Congress, and section 4 fixes the day of the election for which all the regulations are provided by law. There was but one thing left to the convention, — it could provide the state election should be in 1895, and, if it omitted to so provide, state officers would not be elected until after statehood should be attained. Everything else was provided. Whether deciding this was in-the nature of a legislative provision is only a matter of words. It was a special power granted, and it could only be exercised under and according to the power, and from the minute it was exercised, the authorization of Congress is the sole authority for the election; and there is no ground for the inference that legislative powers to qualify voters were given, or for the fictions that the constitution was in force, and the people sovereign as to this election, or for the further structural conclusion that Congress, by. granting this limited power, abdicated for any purpose its authority in the government of the territory, and could not qualify the electorate for a territorial election. If the legislative power to qualify voters for the state election had been granted to the convention, it failed to exercise it, and even did — 155 — not know it, for it refused by a strong majority vote to attempt to enfranchise women for the election of 1895; and sections 11 and 14 of the schedule only repeat the qualifications named in section 2 of the enabling act, and refer to qualified voters in the words of section 4, and, except in the proposed constitution, which we cannot consider in force, no other qualifications are mentioned. In passing the first branch of the case, a more 'extended reference to prior laws of Congress was deferred, because those laws, if applicable at all, are applicable to the whole case. The law forbidding woman suffrage is not repealed by anything in the enabling act, and is n.ot in conflict with that act. It is contended for the respondent that it does not apply to elections held in the proceedings to obtain statehood. It is true this is a new subject; but the elections are territorial elections, held by the people of the territory, and decided by their votes. The effect of these elections, ■ from ' the nature of the case, reaches to and binds the people of.the future state, either as successors or as the same people. Congress knew of this law, and, by limiting the electorate to male citizens, evinced an intention to maintain its provisions; and, in section 2, Congress directs the registration shall be made under the laws of the United States and the territory, except as to the change in the oath. There is no escape from this inference. It is a delicate thing for a court to set aside a positive act of Congress on some remote and speculative fiction, contrary to the- plain facts; and, if the respondent's case depended on this point only, we do not see how she could maintain it. The registration oath prescribed in the Edmunds-Tucker law of Congress is in force as to general elections. By section 2, and as to elections relating to statehood, Congress authorized a modification; and the provision is equivalent to a re-enactment in the modified form, for the pur — 156 — pose of these elections. There is nothing in the enabling act repealing or in conflict with this provision. There is, here no room for an argument that Congress did not intend this to apply to the new subject, and there is room for an argument, derived from this, that Congress was not forgetful of its prior enactments, and intended them to remain in force unless repealed or modified. The respondent is not a male citizen, and cannot register or vote under the provisions of this law. Thus, there are several decisive objections to the right of the respondent to vote before the state shall be admitted. The oath of the Edmunds-Tucker law, either in its original form, or as authorized to be modified by the enabling act, applies'to all territorial elections, and forbids her to register. The act prohibiting woman suffrage is applicable to all territorial elections, and forbids her to vote. There is nothing in the enabling act which, directly or indirectly, extends to her the privilege of suffrage, or repeals these laws. The constitutional convention was not vested with the power to enfranchise her, and did not attempt to do it, but repeatedly refused to attempt it. Against the plain provisions of the statute law, she presents only the erroneous interpretation that section 4 of the enabling act enfranchises the proposed voters of the future state, prior to the adoption of the constitution; the assumption of the fiction that, as to the election of state officers, the people are exercising state sovereignty, and that the constitution is deemed in force; a denial of the power of Congress to qualify the electorate for the election; and that the convention, as to this, was the representative of a sovereign people. The earnestness with which the respondent’s case has been argued, and the degree of public attention and interest the case attracted, are the only excuse for following the -case into so many details. The judgment in this court will be for a reversal — 157 — of the case, with costs, and remitting it to the district court, with directions to dismiss it. Bartch, J., concurs. King, J., dissents and will file a' dissenting opinion hereafter.