Lewiston teller. [volume] (Lewiston, North Idaho) 1878-1900, 1886-11-04

JUDGE HAYS DECISION.
Tho Test Oath Case Pronounced Con
stitu.ional and Valid.

On Monday morning last, just before
the adjournment Of court, Judge Hays |
gave his opinion in the eases of The Peo-
pie &c. on relation of A. Mcintosh vs.
John A Hunt, and The People &C., on
relation of A. Mcintosh VS.. Samuel
Matthews. The proceedings were in the
nature Of quo warranto, and involved
the franchise to the Office of c.mmission-
er of Bear Lake county. The following
is the test oath involved in the decision:
You do solmly swear Cor aftirm) that
you are n male citizen OF the United
States, over the age of twenty one years
that you have actually resided in this
territory Tor four months last past, and
in this county thirty days; that you are
no; bieamist or polyyamist; that you
are not member Of any order, organiza
ton or association which teaches, advises,
counsels or encourages its members, de-
votees, or any other persons, to commit
the crime of biyamy or polygamy, or
any other crime defined by law, Us a Lrty
arising or resulting from membership in
such order, organization or association, or
which practices biyamy or polygamy or
plural or celesti' marriage, as a doctrinll
rite OF such organization. That you d.
not, either publicly or privately, or in
any manner whatever teach, advise,
counsel or encourage any person to com
init the crime Of bigamy or polygamy,
or any other crime defined by law either
as religious duty or otherwise. That
you regard the constitution of the Unit
ed States, and the laws thereof, and Of
this territory interpreted by the courts,
as the supreme law of the land, the
teachings Of any order, organization o,
association to the contrary notwithstand.
ing, and that you have not previously
voted at this election, so help you God
Judge Hays reviewed the case at some
length, saying, among other things, that
he had given the case thorough exam
ination; that before he could pronounce
the law void as being in con.ravention of
the constitution Of the United States or
the organic act of the territory of Idaho,
the case must be so clear that no reason.
able doubt can be said to exist; that the
judiciary is not authorized to hold law
void merely because it deems law un.
wi c, unjust, or impolitic. The wisdom
and necessity for the enactment being
purely question for the law making
power, the judiciary will not inquire into
them. The courts are not TO inquire
how many may be affected by their de-
cision or to look to the N attitude for
their vindication. The rights Of sinsl.
citizen are as sacred in the eyes of the
law as of thousands. Hence SO much
argument OF counsel as was devoted to
this branch Of the subject will receive no
consideration.
Suffrage is not natural right, nor a
vested right, it is rath conferred or
conventional one, aud may be granted
abridged, or taken away by the law
making power Of the territory in its dis
cretion except SO far as those rights are
secured by congressional enactments or
the constitution Of the United States.
While the territorial legislature derives
its power through congress it follows that
it has no greater power than congress
aud that it can make no laws prohibiting
the free exercise Of religion.
| am not prepared to hold that to deny
4 citizen the right Of taffrage or the
privilege Of holding an Office is prohibit.
ing the free exercise of religion. Hence
the law is not. void on that score.
Section 5 Of the "Edmunds act" pro.
vides, among other things, in substance,
that it shall be cause of challenge iu
certain cases If the juror believes it righ,
for man to have more than one living
undivorced wife at the same time, and
that be may b. questioned on oath As L
such belief; and for the existence Of such
belief may be deprived Of the right t.
hold the Office Of juror in certain cases
This law has been held valid BY the high
est judicial tribunal in the land. (Ses
Reynolds vs. United States, 90 u. 8
las. Clawson vs.. United States, ll4
u. s. 474.)
The Edmunds act certaiuly goes quit.
q far as the act under consideration.
The validity Of the Edmunds act hal
passed beyond the power Of q teIritoria
court to question.
Section 8 Of the Edmnnds act pro
vides that no polygamist, bigamis, ol
person cohabitiug With moro than On,
woman shall be entitled to vote, etc. Il
Murphy ct Al. ". Ramsey, (il4 U. 8
Il5) this act Is held valid. II congres
could deprive the bigamist or polygamia
Of the right Of suffrage, l think it follow
that they have the power to 80 farthe
aud to deprive the sidsr aad absttor o