The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1892-10-19
IDAHO'S TEST OATH.
The Supreme Court Declares 1t
Constitutional.
sHEPARD's WRIT Is DENIED.
The Enactment Held to Be Clearly Within
the Constitutional Power Of
the Legislature.

BOISE, Ida, Oct. 17-TSpecial Telegram
TO The HERALD. AS announced in TIE
HERALD of yesterday the state supreme
court decided the famous Idaho lest oath,
or electors oath law, levelled at the Nor
mons valid and not at variance with the
state or United States Constitution
The test oath law was passed by the leg
islature in 1891. 1t prohibits any man, who
since January 1st, 1855, or since he was Is
years old has been member of, or prac-
tioed the beliefs of the Mormon church or
any church or sect that taught or had
taught the doctrine of pstrisrchsl, or plural
or celestial marriage or had taught coun-
selled or aided any person to enter into
bigamy, polygamy, or similar marital con-
ditious. 1t deprivss $500 MormoDs of the
right to vote and they have been fight
ing the law ever since its passage.
About one month ago Mormon named
Shepard who wished to test the
enactment appeared before Registrar Gin
melle, in Bear Lake county, and sub
scribed to the electors oath. As member
OF tue Mormon church he could not legally
do this and his arrest upon a charge Of
perjury followed. The matter was brought
TO the attention of the supreme court in
hn0eas-corpus proceedings and the matter
was argued and submitted last week at
Lewiston.
The grounds upon which SHEPPARD claimed
the electors oath was unconstitutional were
that the oath was in oontravention of sec
ton Q, article l of the United States consti
tuition in that 1t was ex-posto facto in ITS
character. That it snnuls the provisions
OF article Of the constitution of Idaho. and
that it is in the nature of the bill Of at
tsinder The court over-ruled all these
points, and in denying the writ Of haoeas
corpus held that the statute was constitu-
tional. The following are some of the
statements OF the Supreme court on this
subject:
1.-THE defense of ex-post facto laws has
been settled By repeated decisions of the
Supreme court of the United States. Ex-
post facto laws relate TO penal and Grim
inal proceedings which effect private rights
retrospectively and are not applicable to
civil laws but to penal and criminal laws
only. The argument of counsel for the
plaintiff is predicated largely upon the as
sumption that the exercise Of the elective
franchise is an absolute right and that
both the constitutional privileges and that
of the statutes are a violation Of this right.
All the authorities are against this assump-
tion.
II is contended by the counsel for the
plaintiff that the test oath in the law OF
February 25 1891, is in the nature of bill
of attainder. Section % Of state oonstitu-
tion provides that no person shall pe eleg-
ible TO the Office of district Judge unless he
be thirty years of age. Does thai attslnder
intlict pains and penalties upon all Of the
citizens OF the state learned in the law who
have net reached that period OF longevity
Under our constitution the right of suffrage
is confined to males over the age of twenty
one. Does that attainder infiict pains and
penalties on all the women who have
reached their maioritys Bills OF attalnder
are at present unknown to our laws.
The right TO vote is poiitica. right, con-
ferred by the constitution or laws of the
state and has never been regarded 81 ex-
ciusively under state control. Ii may be
granted, or withheld. or given subject &c
such restrictions as the majority of those
most conducive to the public welfare.
1t is the opinion of the court therefore,
that the law of sttainder in this case Is an
ex-post facto law; that il is not in the ma
ture OF bill OF attainder and that it is an
enactment clearly within the coDstitu
lionai power of the Legislature. The ne
cessity of the law, or sense of such neces-
atty, or its apparent hardship, cannot be
permitted to affect the determine ton of
the court. The peace of society and the
welfare and happiness of the people de-
mand that due espect shall be given by
the court TO the lRw-msking powers and
where laws are clearly constitutional ap-
piications for change must be made to
that branch of the government which
alone can make and unmake the law. The
writ must be denied and it is so ordered. u
The opinion wss by Juetics Huston,
Chief Justice Sullivan AID Justice Morgan
concurred.