The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1891-04-19

10, Gnu Otu6TWlSS ouIlGiSu W YOU
When he has done this he has done all ths
the statute required in this territory
I'm this case it appears that each of thes
nfteen electors had their names properl
enroied-that they were legal voters an
entitled to vote at this election; tina
the deputy register, without an
authority of law whatever, errone
ously and Illegally ordered thei
names stricken from the lists of qualifie
electors on the morning of the election
.hat each OF them went and rendered a vot
Iof the contestant, with an affidavit o
quallncatlons as legal voters. They wer
refused because their names had been lille
gally and enormously stricken from tn
list OF voters by order of the deputy regis
Irar. This illegal act, if it was such, upor
the part OF the registration officer cannot b.
lusIlned upon any preteXt whatever.
''Ihe rights and wishes of all people ar.
TOO sacred to be cast aside and nullitied b,
Inc illegal and wrongful acts of the ser
wants, no matter under what guise or pre-
tense such acts are sought to be justified
Ihls right is fundamental right. AL
other rights, civil and political, depend OIL
the Tree exercise OF this one, and any ma
terlal Impairment of it is, to that extent,
suoverslon of our political system.
Ihese registration and election officer:
act mlnisterially, or at most quasi -iudicislly
and their acts may properly De reviewed
ana questioned IN proceeding to contes
or Try the tiUle to any Office made elective
by the laws of the territory
line acts of the legislature herein quoted
can properly be considered in connection
with the Edmunds Tucker act as applicable
10 this territory in the registration of cleo.
tors ana conduct of elections, and should be
SO construed as to give every man, who has
thatrlght, an opportunity to register and
vote and to have that vote honestly counted
Sectlon nine of the Edmunds-Tucker law
declares vacant all registration and cleo
ton offices of every description IN the
territory, and each and every duty re-
lating to the registration of votes and
conduct of elections, receiving and
registering votes and the canvassing OF
the same, etc, shall, until other provisions
De made by the legislature of the territory,
as hereinafter provided, be performed by
ana under the existing laws of the United
states and of said territory, by proper per-
sons, appointed by the Utah commission
and no person shall be
excluded from the polls who is otherwise
eligible ovote, on account of any opinion,
etc, nor shall thew refuse
to count any such vote on account of the
opinion OF the persons casting the same on
the subject of polygamy.
The construction of this statute may be
found in
McCary Am. Law of Ell, Sec. Ii: 6 Am.
q Eng. Enc. of Law, %. $3.50; Murphy
vs.. Ramsey, III U. S. SO, and Buchanan VS..
Manny,2 Ellis, 2S7.
Section 1907 of the Revised Statues, re-
lied upon by counsel for the contestant.
might be potent factor in the determine
tlon OF this question had not the Supreme
court OF the United States declared it,u
constitutional in-92 U. S., p. 2l4. U. S.
VS.. Reese eJ al.
II am satisfied that no case can be found
IN the books which presents a stronger ap-
peal IN behalf ofjustice to an elector than is
presented by the record in this case. Yet
the law seems to be settled that unless the
ballot is actually cast it cannot be counted
local election contest. Judge Campbell.
IN MS opinion il People VS.. Cicot, 16 Mich.
3ll, says: There is no case, so far as /.
have been able TO discover under any sys
ten OF voting by closed ballot, which has
heid that any account can be taken of re-
lected votes in suit to try title for Office
Judge Cooley, in his work on Constitu-
tlonal Limitations, PIP. 625-6-7, says We
nave seen that no evidence is admissible as
to how parties intended to vote who We're
Wrongtully prevented or excluded from so
DONG; such case is one of many without
remedy, SO far as candidates are con-
carned. And in such cases the injured
parties nave their right of action against
the registration officers who violate their
oath and maliciously OF corruptly strike
the name of legal voter from the registra
tlon list, or maliciously or cor
ruPtiy refuse to place such
parties may be made liable to civil action
IN damages or prosecuted criminally for
such corrupt, wilful and malicious acts.
Ashby VS.. White End Id. Rapn. 933. Gil
lispie VS.. Palmer 20 Wis. 544-6. Am. and
Eng. Enc. OF Lar. pages 306-30S- 443. Har
desty VS.. left 81 Am. Dec. ISL Garfield
vs.. Bullock IS B. Mon. OK. " 494 -693.
by section 1872, compiled laws of 1888.
1t is enacted that when any election held
Tor an Office exercised in and for county
IS contested on}account of any malconduct
On the part OF the board Of judges of any
election, or any member thereof,
unless the rejection of the vote of such
precinct or precincts would change the re
suit as to such Office in the remaining vote
Of county.
ut is contended with much reason that
under the provisions of these statutes no
vote can be counted for a candidate that is
lo1 actually cast Tor him while the polls |
are open, ana that the power of this court
IS limited TO the rejection of such fraudu-
ent votes as were actually cast, or to the
relectlon of the vote of precincts on ac-
count OF fraud in the officers conducting |
5he election in cases where it appears that !
lhe rejection of. the vote of such precinct !
would change the result as to such office in |
me remaining vote of the county. The |
.ull vote OF South Cottonwood precinct ia
lot reported or found by the trial court:
therefore we are unable to determine |
or not the rejection of the entire |
yote of South Cottonwood precinct would .
mango the result of the election for this !
)ftice: therefore
Upon the whole record we find no
errors. The findings and Judgment OF the .
curt below are affirmed with costs.
We concur in the result
CANE C. j.
sBLACKBURN, J.''
j: L. Rawlings for the plaintiff, gave
lotlce of an appeal to the supreme court of