than twenty years last past." She presented to the deputy registration officer an affidavit setting forth the same facts.

In the case in which James M. Barlow is plaintiff and appellant the averments in the complaint are altogether like those in the case of Murphy, which has been set out in full. In each case a demurrer was filed to the complaint by all the defendants, on the ground that it did not state facts sufficient to constitute a cause of action. These demurrers were sustained, and, the plaintiffs electing to abide by their pleadings, judgment was rendered for the defendants, which are now brought by appeals for revision to this court. The act of March 22, 1882, is as follows:

"An act to amend section fifty-three hundred and fifty-two of the Revised Statutes of the United States in reference to bigamy, and for other purposes. "Be it enacted by the senate and house of representatives of the United States of America, in congress assembled, that section fifty-three hundred and fifty-two of the Revised Statutes of the United States be, and the same is hereby, amended, so as to read as follows, namely:

"Every person who has a husband or wife living, who, in a territory or other place over which the United States have exclusive jurisdiction, hereafter marries another, whether married or single, and any man who hereafter simultaneously, or on the same day, marries more than one woman, in a territory or other place over which the United States have exclusive jurisdiction, is guilty of polygamy, and shall be punished by a fine of not more than five hundred dollars and by imprisonment for a term of not more than five years; but this section shall not extend to any person by reason of any former marriage whose husband or wife by such marriage shall have been absent for five successive years, and is not known to such person to be living, and is believed by such person to be dead, nor to any person by reason of any former marriage which shall have been dissolved by a valid decree of a competent court, nor to any person by reason of any former marriage which shall have been pronounced void by a valid decree of a competent court on the ground of nullity of the marriage contract.

"Sec. 2. That the foregoing provisions shall not affect the prosecution or punishment of any offense already committed against the section amended by the first section of this act.

"Sec. 3. That if any male person, in a territory or other place over which the United States have exclusive jurisdiction, hereafter cohabits with more than one woman, he shall be deemed guilty of a misdemeanor, and on conviction thereof shall be punished by a fine of not more than three hundred dollars, or by imprisonment for not more than six months, or by both said punishments, in the discretion of the court.

"Sec. 4. That counts for any or all of the offenses named in sections one and three of this act may be joined in the same information or indictment. "Sec. 5. That in any prosecution for bigamy, polygamy, or unlawful cohabitation, under any statute of the United States, it shall be sufficient cause of challenge to any person drawn or summoned as a juryman or talesman— First, that he is or has been living in the practice of bigamy, polygamy, or unlawful cohabitation with more than one woman, or that he is or has been guilty of an offense punishable by either of the foregoing sections, or by section fifty-three hundred and fifty-two of the Revised Statutes of the United States, or the act of July first, eighteen hundred and sixty-two, entitled 'An act to punish and prevent the practice of polygamy in the territories of the United States and other places, and disapproving and annulling certain acts of the legislative assembly of the territory of Utah;' or, second, that he believes it right for a man to have more than one living and undivorced wife at the same time, or to live in the practice of cohabiting with more than one woman; and any person appearing or offered as a juror or talesman, and

83.

challenged on either of the foregoing grounds, may be questioned on his oath as to the existence of any such cause of challenge, and other evidence may be introduced bearing upon the question raised by such challenge; and this question shall be tried by the court. But as to the first ground of challenge before mentioned, the person challenged shall not be bound to answer if he shall say upon his oath that he declines on the ground that his answer may tend to criminate himself; and if he shall answer as to said first ground, his answer shall not be given in evidence in any criminal prosecution against him for any offense named in sections one or three of this act, but if he declines to answer on any ground he shall be rejected as incompetent.

"Sec. 6. That the president is hereby authorized to grant amnesty to such classes of offenders guilty of bigamy, polygamy, or unlawful cohabitation, before the passage of this act, on such conditions and under such limitations as he shall think proper; but no such amnesty shall have effect unless the conditions thereof shall be complied with.

"Sec. 7. That the issue of bigamous or polygamous marriages, known as Mormon marriages, in cases in which such marriages have been solemnized according to the ceremonies of the Mormon sect, in any territory of the United States, and such issue shall have been born before the first day of January, Anno Domini eighteen hundred and eighty-three, are hereby legitimated.

"Sec. 8. That no polygamist, bigamist, or any person coliabiting with more than one woman, and no woman cohabiting with any of the persons described as aforesaid in this section, in any territory or other place over which the United States have exclusive jurisdiction, shall be entitled to vote at any election held in any such territory or other place, or be eligible for election or appointment to or to be entitled to hold any office or place of public trust, honor, or emolument, in, under, or for any such territory or place, or under the United States.

"Sec. 9. That all the registration and election offices of every description in the territory of Utah are hereby declared vacant, and each and every duty relating to the registration of voters, the conduct of elections, the receiving or rejection of votes, and the canvassing and returning of the same, and the issuing of certificates or other evidence of election in said territory, shall, until other provisions be made by the legislative assembly of said territory as is hereinafter by this section provided, be performed under the existing laws of the United States and of said territory by proper persons, who shall be appointed to execute such offices and perform such duties by a board of five persons, to be appointed by the president, by and with the advice and consent of the senate, not more than three of whom shall be members of one political party, and a majority of whom shall be a quorum. The members of said board so appointed by the president shall each receive a salary at the rate of three thousand dollars per annum, and shall continue in office until the legislative assembly of said territory shall make provision for filling said offices as herein authorized. The secretary of the territory shall be the secretary of said board, and keep a journal of its proceedings, and attest the action of said board under this section. The canvass and return of all the votes at elections in said territory for members of the legislative assembly thereof shall also be returned to said board, which shall canvass all such returns and issue certificates of election to those persons who, being eligible for such election, shall appear to have been lawfully elected, which certificates shall be the only evidence of the right of such persons to sit in such assembly: Provided, that said board of five persons shall not exclude any person otherwise eligible to vote from the polls on account of any opinion such person may entertain on the subject of bigamy or polygamy, nor shall they refuse to count any such vote on account of the opinion of the person casting it on the subject of bigamy or polygamy; but each house of such assembly, after its organization, shall have power to decide upon the elections and qualifications of its

members; and at or after the first meeting of said legislative assembly, whose members shall have been elected and returned according to the provisions of this act, said legislative assembly may make such laws, conformable to the organic act of said territory and not inconsistent with other laws of the United States, as it shall deem proper, concerning the filling of the offices in said territory declared vacant by this act."

Section 5352 of the Revised Statutes, which the foregoing act amends, reads as follows: "Every person having a husband or wife living who marries another, whether married or single, in a territory, or other place over which the United States have exclusive jurisdiction, is guilty of bigamy, and shall be punished by a fine of not more than five hundred dollars, and by imprisonment for a term not more than five years; but this section shall not extend to any person by reason of any former marriage whose husband or wife by such marriage is absent for five successive years and is not known to such person to be living, nor to any person by reason of any former marriage which has been dissolved by decree of a competent court, nor to any person by reason of any former marriage which has been pronounced void by decree of a competent court on the ground of nullity of the marriage contract.

At the time of the passage of the act of March 22, 1882, the qualifications of voters prescribed by the territorial legislature, whose right to do so was conferred by the organic act of Utah, were as follows: “If males, they were required to be citizens of the United States, over twenty-one years of age, and constant residents in the territory during the six months next preceding the election, and no person was to be deemed a resident unless he was a tax-payer in the territory; if females, they were required to be of the age of twenty-one years, resident in the territory six months next preceding the election, and born or naturalized in the United States, or the wife, widow, or daughter of a native-born or naturalized citizen of the United States." Act to establish a territorial government for Utah, approved September 9, 1850, (9 St. 453;) Comp. Laws Utah, 1876, p. 88. At the same time there was also in force chapter 12 of the Laws of Utah, 1878, providing for the registration of voters, and to further regulate the manner of conducting elections in that territory. That act contains the following provisions: "That the assessors in their respective counties are hereby constituted the registration officers, and they are required to appoint a resident deputy in each precinct to assist in carrying out the provisions of this act, and before the first Monday in June, 1878, in person or by deputy, they shall visit every dwelling in each precinct, and make careful inquiry as to any or all persons entitled to vote, and each assessor or deputy, in all cases, shall ascertain upon what ground such person claims to be a voter, and he shall require each person entitled to vote and desiring to be registered to take and subscribe in substance the following oath or affirmation:

"Territory of Utah, County -, 88.: I, ———, being first duly sworn, depose and say that I am over twenty-one years of age, and have resided in the territory of Utah for six months, and in the precinct of — one month next preceding the date hereof, and (if a male) am a (“native-born," or "naturalized," as the case may be) citizen of the United States, and a tax-payer in this territory; (or, if a female,) I am "native-born," or "naturalized," or the "wife," "widow, or "daughter," (as the case may be,) of a native-born or naturalized citizen of the United States.

"Subscribed and sworn to before me this

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A. D. 18Assessor.'

"Upon the receipt of such affidavit, the assessor, as aforesaid, shall place the name of such voter upon the register list of the voters of the county. *"Sec. 2. It shall also be the duty of the assessor of each county, in person

or by deputy, at the time of making the annual assessment for taxes in each year, beginning in 1879, to take up the transcript of the next preceding registration list and proceed to the revision of the same, and for this purpose he shall visit every dwelling-house in each precinct, and make careful inquiry if any person whose name is on his list has died, or removed from the precinct, or is otherwise disqualified as a voter of such precinct; and, if so, to erase the same therefrom; or whether any qualified voter resides therein whose name is not on his list; and, if so, to add the same thereto, in the manner as provided in the preceding section.

"Sec. 3. It shall also be the duty of each assessor, in person or by deputy, during the week commencing the first Monday in June of each year, at his office, to enter on his registry list the name of any voter that may have been omitted, on such voter appearing and complying with the provision of the first section of this act required of voters for registration purposes.

"Sec. 4. Upon the completion of the list, it shall be the duty of each assessor as aforesaid to proceed to make out a list in alphabetical order for each precinct, containing the names of all the registered voters of such precinct, and shall, on or before the first day of July in each year, deliver all of said lists and affidavits to the clerk of the county court.

"Sec. 5. The clerk of the county court shall deliver to the assessor the registry lists whenever necessary for the revision thereof, or adding names thereto, and the assessor in person or by deputy shall, during the week commencing the second Monday in September, in the year 1878, and every second year thereafter, enter names of voters on the registry list in the manner provided in section three of this act, and, upon the list being completed, proceed as required by section four of this act provided, that in such case he shall deliver the list and affidavits on or before the tenth day of October in such year.

"Sec. 6. Voters removing from one election precinct to another in the same county may appear before the assessor at any time previous to the delivery of the registry list to the clerk of the county court, and have their names erased therefrom, and they may thereupon have their names registered in the precinct to which they may remove.

"Sec. 7. The clerk of the county court shall file and carefully preserve all said affidavits and registry lists, and shall make a copy of each precinct registry list, and cause the same to be posted up at least fifteen days before any election, at or near the place of election, and shall make and transmit another copy to the judges of election.

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A. D. 18-. '9

"Sec. 8. The clerk of the county court shall cause to be printed or written a notice, which shall designate the offices to be filled, and stating that the elec tion will commence at -, [designating the place for holding the polls,] one hour after sunrise, and continue until sunset, on the 18-, [naming the day of election.] Dated at Clerk of the County Court. A copy of which shall be posted up at least fifteen days before the election, in three public places in said precinct best calculated to give notice to all the voters. It shall also be the duty of the clerk of the county court to give notice on the lists so posted that the senior justices of the peace for said precinct will hear objections to the right to vote of any person registered, until sunset of the fifth day preceding the day of election. Said objections shall be made by a qualified voter, in writing, and delivered to the said justice, who shall issue a written notice to the person objected to, stating the place, day, and hour when the objection will be heard. The person making the objection shall serve, or caused to be served, said notice upon the person objected to, and shall also make returns of such service to the justice before whom the objection shall be heard. Upon the hearing of the case, if said justice shall find that the person objected to is not a qualified voter, he shall, within three days prior to the election, transmit a certi

fied list of the names of all such unqualified persons to the judges of election, and said judges shall strike such names from the registry list before the opening of the polls.

"Sec. 9. The county court shall, at its first session in June of each year, appoint three capable and discreet persons in each precinct in the county, one at least of whom shall be of the political party that was in the minority at the last previous election, if any such party there be in such precinct, to act as judges of general and special elections; and they shall designate one of the persons appointed to preside, and the other two to act as clerks of said elections. And the clerk of said court shall make out certificates of said appointments, and transmit the same by mail or other safe conveyance to the persons so appointed, who, previous to entering upon said office, shall take and subscribe an oath to the effect that they will well and faithfully perform all the duties thereof to the best of their ability, and that they will studiously endeavor to prevent any fraud, deceit, or abuse at any election over which they may preside. If, in any precinct, any of such judges decline to serve or fail to appear, the voters of said precinct, first assembled on the day of election, to the number of six, at or immediately after the time designated for opening the polls, may elect a judge or judges to fill the vacancy, and the persons so elected shall qualify as herein before provided."

Sections 10 and 11 prescribe how ballot-boxes, keys, etc., shall be procured, and provide for envelopes and ballots, and for keeping the boxes during the voting and until the canvass; and section 12 provides how the judges shall keep the lists, etc.

"Sec. 13. Every voter shall designate on a single ballot, written or printed, the name of the person or persons voted for, with a pertinent designation of the office to be filled, and when any question is to be decided in the affirmative or negative, he shall state the proposition at the bottom of the ballot, and write thereunder yes or no, as he may desire to vote thereon, which ballot shall be neatly folded and placed in one of the envelopes herein before provided for, and delivered to the presiding judge of election, who shall, in the presence of the voter, on the name of the proposed voter being found on the registry list, and on all challenges to such vote being decided in favor of such voter, deposit it in the ballot-box, without any mark whatever being placed on such envelope; otherwise the ballot shall be rejected."

The remainder of the act relates to the canvass, returns, and certificates of election.

*Wayne MacVeagh, G. G. Vest, F. S. Richards, and C. W. Bennett, for appellants. Atty. Gen. Brewster and Sol. Gen. Phillips, for appellees.

Mr. Justice MATTHEWS, after making the foregoing statement, delivered the opinion of the court:

These cases, although actions at law, were not tried by jury, and therefore are rightly brought here by appeal, according to the provision of the act of congress of April 7, 1874, (18 St. pt. 3, p. 27; Supp. Rev. St. 12.) Stringfellow v. Cain, 99 U. S. 610; Hecht v. Boughton, 105 U. S. 235; Woolf v. Hamilton, 108 U. S. 15; S. C. 1 SUP. CT. REP. 139.

The wrong complained of in each case by the respective plaintiffs is "that the defendants, and each of them, intending to wrongfully deprive the plaintiff of the elective franchise in said territory, willfully and maliciously, by the acts and in the manner aforesaid, refused the plaintiff registration, as a voter, at the said registration commenced on the second Monday of September, 1882, and deprived the plaintiff of the right to vote at the election held in said territory on the seventh day of November, 1882, and at all elections under said registration."

The acts which, it is alleged, were done by the five defendants, as a board of commissioners or canvassers, under the law of March 22, 1882, and which contributed to the wrong, and constituted part of it, are that they prescribed