NEVADA v. TODD, 3 Wash. Terr. 599 (1888).


SUPREME COURT OF THE TERRITORY OF WASHINGTON


August 14, 1888, Decided
ERROR to the District Court holding terms at Spokane
Falls. Fourth District.
Nevada H. Bloomer, the plaintiff below, sued the defendants
John Todd, J. E. Gandy, and H. A. Clarke, judges of
election, and conducting the regular municipal election in
one of the wards of the city of Spokane Falls, in April,
1888, for fraudulently, maliciously, and without sufficient
cause, and with intent to injure her, refusing to receive
her ballot, which she tendered to said judges, containing
the names of the persons for whom she intended to vote for
the office of mayor and for other offices to be filled at
said election. The plaintiff alleged that at the time of the
election she was a female citizen of the United States over
twenty-one years of age, and had been for more than one year
prior to said term a resident, a citizen, and a qualified
elector of the territory, and had for more than one month
immediately prior to said election resided in said city, and
for more than five days in the ward in which she offered to
vote, as required by law, to entitle her to vote. The
plaintiff prayed judgment for damages in the sum of $ 5,000.
The defendants interposed a demurrer, alleging insufficiency
of facts in the complaint to constitute a cause of action.
Demurrer sustained to the complaint, and plaintiff failing
to amend, judgment for costs was rendered in favor of
defendants, from which plaintiff appealed.

Court: Judgment affirmed.

Syllabus: ELECTION AND VOTERS--TERRITORIES--WOMAN
SUFFRAGE--ORGANIC ACT--CITIZENS OF THE UNITED STATES.--The
act of the legislative assembly, approved January 18, 1888
(Sess. Laws 1887-1888, p. 93), purporting to confer the
right of suffrage upon women, is void as in conflict with
the organic act of the territory, providing that every white
male inhabitant above the age of twenty-one years, resident
in the territory, shall be a voter at the first election,
but the qualification of voters at subsequent elections
shall be prescribed by the legislative assembly of the
territory, provided that the right of suffrage shall be
exercised only by citizens of the United States above the
age of twenty-one years, or by those above that age who have
declared on oath their intention to become such; the word
"citizen," as used in the act, to be construed and read only
as male citizen, etc.

Counsel: Mr. William M. Murray, for the Plaintiff in Error.
If the allegations of the complaint in this action are
true, plaintiff is entitled to recover damages for the wrong
done her. ( Murphy v. Ramsey, 114 U.S. 15.) The privilege of
suffrage is one which may be granted or withheld at the will
of the sovereign governing power. ( Van Valkenburgh v.
Brown, 13 Am. Rep. 136; Minor v. Happersett, 21 Wall. 162;
Spencer v. Board of Registration, 29 Am. Rep. 582.) The
congress of the United States has the sovereign power to
legislate for the territories. It may exercise that power
directly, or it may, as is usual, delegate it to territorial
legislative assemblies; but even in case of such delegation,
it has the power to approve or disapprove--"to declare a
valid act void or a void act valid." ( National Bank v.
County of Yankton, 101 U.S. 129; Murphy v. Ramsey, 114 U.S.
15.) The legislative power in the territories is vested in
the governor and legislative assembly. (U. S. Rev. Stats.,
sec. 1846.) It shall extend to all rightful subjects of
legislation not inconsistent with the constitution and laws
of the United States. (Rev. Stats., sec. 1851.) All laws
passed by the legislative assembly and governor shall be
submitted to congress, and, if disapproved, shall be null
and of no effect. (U. S. Rev. Stats., sec. 1850.) And after
providing the qualifications of voters at the first election
in territories thereafter organized, congress further made
the following provision: "Section 1860. At all subsequent
elections, however, in any territory hereafter organized by
congress, as well as at all elections in territories already
organized, the qualifications of voters, and of holding
office, shall be such as may be prescribed by the
legislative assembly of each territory, subject,
nevertheless, to the following restrictions on the power of
the legislative assembly, namely: The right of suffrage and
of holding office shall be exercised only by citizens of the
United States above the age of twenty-one years, and by
those above that age who have declared on oath, before a
competent court of record, their intention to become such
and have taken an oath to support the constitution and
government of the United States." The qualification of
voters is a rightful subject of legislation over which
congress has, in the territories, sovereign power either to
act itself or to delegate the power to the territorial
legislature. That power is clearly conferred by the
foregoing enactments, (1) by section 1851, (2) by the
express grant of power contained in section 1860, limited
only by the restrictions contained in the latter section. (
Van Valkenburgh v. Brown, 43 Cal. 43, 13 Am. Rep. 136; Minor
v. Happersett, 21 Wall. 162; Spencer v. Board of
Registration, 1 McArthur, 29 Am. Rep. 582.) It must be
presumed that congress intended the statute to be construed
according to the plain and ordinary import of the language
used; and that import grants the power to legislate on the
subject. The Territory of Wyoming had adopted woman suffrage
prior to the revision of the statutes; and if that be so,
the enactment of the statutes in the revision indicates the
congressional intent; and also, congress having absolute
power to declare "a valid act void or a void act valid" in
the territories. ( National Bank v. County of Yankton, 101
U.S. 129.) Its failure for many years to abrogate the woman
suffrage law of Wyoming indicates its intention in the
foregoing statutes, or at least its assent to woman
suffrage. In this territory, the legislative enactments must
be submitted to congress and, if disapproved by congress,
shall be null and of no effect. (U. S. Rev. Stats., sec.
1850.) And it may well be argued that the suffrage law of
1883 in this territory, though it remained in force for
three years, and the present one, having never been
disapproved, are impliedly confirmed by congress, or at
least that the right of the territories to legislate on the
subject is recognized. The Supreme Court of the United
States recognized the right of the territories to legislate
on this subject and to confer the right of suffrage upon
women. (Murphy and others v. Ramsey and others, 114 U.S.
15.) In the case last cited, appealed from Utah, five cases
are considered together. They are cases brought against
election officers to recover damages for refusing the right
to register and vote. In several of the cases plaintiffs
were women. The question of sex was not directly at issue,
but the court evidently recognized the right of the
territorial legislature to confer suffrage on women, and in
two of the cases wherein women were plaintiffs reversed the
judgment of the territorial court rendered upon defendants'
demurrer to the complaint and remanded the cases. The
territory, through its proper legislative authority, has
expressed its will, and until congress interferes that will
is supreme. No reason exists in natural law why that power
should not be exercised in favor of woman suffrage. She is
equally interested with men in the good order and morality
of society, in the prosperity of the state, in the proper
administration of government, in the welfare of the family,
the education of the young, and, in fact, everything for
which governments are established.
Mr. A. S. Austin, as amicus curiae, filed a brief, and
argued for the Plaintiff in Error.
Mr. George Turner, Mr. George M. Forster, and Mr. J. M.
Kinnaird, for the Defendants in Error.
The sole and only question in the case is: Are females
qualified electors under the laws of Washington Territory?
If answered affirmatively, the lower court erred in not
overruling the demurrer; if answered negatively, the court
committed no error in sustaining that demurrer. We maintain
that the act of the territorial legislature, entitled "An
act prescribing the qualifications of electors in the
Territory of Washington," approved January 18, 1888, is in
conflict with the organic act of Washington Territory, and
is void. Section 1859 and section 1860 of the Revised
Statutes of the United States are not a correct reprint of
the organic act of Washington Territory, and in case of
discrepancy between the two, the latter, being an act of a
local character, is the one whose provisions must govern.
(U. S. Rev. Stats., sec. 5596.) The organic act of this
territory is found in 10 Statutes at Large, 172, and all of
its provisions relating to the matter of suffrage are
contained in section 5 of the act. We call attention to the
discrepancy between the language of the Revised Statutes and
that of the original act, because of the argument which has
been drawn from the peculiar wording employed in the
revision. It is argued, because suffrage is confined by
section 1859 of the Revised Statutes, at the first election,
to "male citizens," etc., while, by section 1860, power is
given to the legislature to regulate the matter of future
elections at pleasure, subject only to the limitation, among
others, that it must be confined to "citizens," omitting the
word "male," that, therefore, congress must have had it in
mind that the territory might wish, at some future time, to
confer suffrage on females, and that the matter was
designedly left open for it to do so when so minded. But in
the original act, as will be seen, the word "citizens," used
in the proviso, stands opposed to the words "white male
inhabitants," used in the enacting clause, and as thus used
the failure to limit the word "citizen" by the word "male"
is not significant. The word "citizen," standing opposed to
the word "inhabitant," any qualification of it would have
weakened force which it was intended it should have in that
connection. We claim that section 5 of that act, which
limits the power of the legislature to confer the right of
suffrage to citizens of the United States, or to persons who
have declared their intention to become such, etc., is to be
read as if the word "male" was inserted before the word
"citizens." Those who insist on the interpretation of
statutes according to their literal reading refuse to
understand the philosophy of the law. Every new statute is
but a part in the great whole. If the meaning of words could
be measured with mathematical accuracy, those parts would be
regular, and their influence on the surrounding parts
uniform. But words cannot be so measured. Hence legislators,
while endeavoring, usually, to make their meaning as
definite as possible, do not guard against every possible
construction which may be placed on their work. To attempt
to do so would be to make their task interminable. It is,
therefore, wisely left to the courts to extend statutes by
construction when the words are not broad enough to
effectuate the legislative intent; to limit by
interpretation where they are too broad. That this duty,
which pertains to the courts under any known system of law,
is sometimes perverted, and the law which the legislature
intended to enact refined away, cannot be denied. But when
it is performed to the end that the legislative intent may
be effectuated, none but the ignorant or vicious will cavil.
To illustrate this principle counsel cited Bishop on
Statutory Crimes, second edition, section 117 a. Another
important principle of construction is that a constitution
or a statute is to receive an unvarying interpretation. It
is not to be one thing to-day and another to-morrow, but
what it was when enacted or adopted that it is and shall
remain until abrogated. On this point counsel cited Cooley's
Constitutional Limitations, pages 54, 55. Two minor
propositions are established by the learned authors above
cited. They are: First, that in construing the organic act
it is to be considered in connection with the common law,
and with prior constitutional and statutory law, to see how,
if at all, its general terms are limited and controlled by
the former; second, treating it in this way, and looking at
it in the light of contemporary history in the year 1853,
the construction that would have been placed on it then is
the construction which it must receive now. Let us examine
section 5 of the organic act by the light of the
constitution and laws of the United States, including the
other parts of the organic act of which it is a part. In the
first place, the government of the United States, as
designed by the fathers of the republic, is a government of
men. The president and vice president are to be men. The
justices of the Supreme Court are to be men. The senators
and representatives are to be men. Who will deny this? Yet
it cannot be proven by a literal reading of the
constitution, but is established by an implication as
strong, but no stronger, than that which we are claiming in
this case. The governments of the territories are mere
agencies of the United States. Is there not a strong
implication that this government of men did not intend to
depart from the framework of their own government in
establishing local and subordinate governments in the
territories? Provision was made in 1817 for the election of
delegates to congress from the territories. (3 U.S. Stats.
at Large, 363.) Neither this act, nor any subsequent act,
fixes the qualifications of delegates, except that section
1906 of the Revised Statutes provides that the delegates
must be citizens of the United States. Congress never
intended that females should be admitted to the house as
territorial delegates in congress. Hence, congress never
intended that females should vote in the territories. It
would be contrary to the genius of our institutions, and to
the teachings of government in which our public men were
educated, to disqualify from the execution of such a trust
one-half of the voters of the community. It is declared by
section 1994 of the Revised Statutes that all women, whose
husbands are citizens, are themselves citizens. ( Kelley v.
Owen, 7 Wall. 496.) Unless our construction of the organic
act is sustained it results that an alien woman, by the mere
fact of marriage to a citizen, may be thereby qualified to
take part in the government of the territory and in the
formation of the new state. A female does not absolve
herself from allegiance by marriage with an alien. ( Shanks
et al. v. Dupont, 3 Peters, 242.) Congress did not intend
that females, married to aliens, should participate in the
governments in the territories created by virtue of the
constitution of the United States; or did it forget or
disregard the common-law principle, founded in nature, and
as vitally true to-day as it ever was, that married women
are under the influence and control of their husbands.
Female suffrage is entirely inconsistent with the scheme of
government provided by the organic act itself. That act
provides for the appointment of a governor, a secretary, one
chief justice and associate justices, a marshal, and United
States attorney. That these officers are to be men is
derived only from implication, yet the position has never
been questioned and probably never will be. The legislative
branch of the government is also composed exclusively of
men. (Rev. Stats. of U.S., secs. 1846, 1859.) The ordinance
of 1789 for the government of the Northwest Territory should
not be omitted from view. This ordinance antedates the
constitution itself, and it declares itself to be, and has
been declared by the Supreme Court of the United States to
be, "articles of compact" between the original states and
the people of the territories. This ordinance was extended
to this territory when the latter was organized. (9 Stats.
at Large 30 Cong., 329, sec. 14; 10 Stats. at Large, 175,
sec. 12.) That ordinance established a government of men, in
terms, and it provided that the territories should, when the
requisite population was acquired, be admitted into the
Union as states, "the constitution and government to be
republican, and in conformity with the principles contained
in these articles." The conclusion that congress had male
citizens only in mind, when it framed our organic act, is
strongly reinforced by a consideration of the status of
females in the government of the country at the time the
organic act was adopted. This status is stated fully in two
important cases, viz: Minor v. Happersett, 21 Wall. 162;
Robinson's Case, 131 Mass. 376. The last cited case, in
which the opinion was rendered by GRAY, C. J., now on the
Supreme Bench of the United States, illustrates the present
case in all its bearings. The word "citizen" arose for a
consideration in that case. The same rule of construction
which should be applied here was applied there. The history
of the common and statute law is carefully and elaborately
stated, showing the relation borne in the government by
females, both under our own and the English systems, and the
conclusion is there reached, as we insist it must be here
reached, that while the law is fully broad enough to include
females in its provision, yet that it was not so intended
and, therefore, must be limited by judicial construction.
Other cases illustrating the same principles and sustaining
our position fully, are: Cirey v. Carter, 48 Ind. 237, 17
Am. Rep. 378; Bradwell's Case, 55 Ill. 535; Bradwell v.
State, 16 Wall. 138; Goodell's Case, 39 Wis. 282; Scott v.
Sandford, 19 How. 393. The foregoing cases establish fully
our first proposition, viz: that the word "citizen," used in
section 5 of the organic act, is to be read as if the word
"male" was inserted before it. In the case of Murphy v.
Ramsey, 114 U.S. 15, cited by plaintiff in error, it is
assumed that the act of the legislature of Utah, conferring
the elective franchise on females, is a valid act. That act
was not attacked as invalid by the counsel in the case. It
would be too much to ask a court, crowded as the Supreme
Court of the United States is, to take the point for itself.
Even if it had suggested itself to the mind of any member of
the court it would not have been his duty to go outside of
the case made to decide it. It is the duty of the court to
decide the issues made by the parties, for the court ought
not to trouble themselves with points in the case which are
not put in issue by the parties, unless it be some
collateral point in the case that thwarts the decision
called for, so as to prevent substantial justice being done
in the case; and then the point should be first suggested to
the parties and an opportunity given to investigate and
argue it. (Powell on Appellate Proceedings, pp.23, 32; see,
also, Scott v. Sandford, 19 How. 393, in which the authority
of the case of Legrand v. Darnell, 2 Peters, 664, was
denied, because the point there decided was not contested by
the parties.) Second, the suffrage act is in conflict with
the organic act in other respects. The right of suffrage is
not restricted as required by the third clause of section
1860 of the Revised Statutes. There is a proviso in the act
of the legislature, in the exact language of said third
clause, but that proviso is rendered nugatory by a second
proviso which makes the first apply only to persons in the
army or navy who were citizens of the territory at the time
of their enlistment. Suffrage is conferred on American
half-breeds, who have adopted the habits of the whites, but
by the organic act it can be conferred only on citizens,
etc. It is not enough to make an Indian or half-breed a
citizen that he shall have adopted the habits of the whites.
He must also have taken up his residence separate and apart
from any tribe of Indians. (See organic law published with
Sess. Laws of Wash. 1887-8, p. 44.) The original act
organizing the territory, by the first proviso to section 5
of that act, limited the right of the territory to confer
suffrage on persons who had declared their intention, etc.,
to such as had "taken an oath to support the constitution of
the United States and the provisions of this act." This
limitation is not perpetuated in the act of the legislature,
but suffrage is conferred on all who have declared their
intention, etc., and "shall have taken an oath to support
the constitution and government of the United States." This
is the language of the Revised Statutes, section 1860, but
the revision does not prevail where it is a departure from
the original act. An oath to support the government of the
United States is not the equivalent of an oath to support
the provisions of the organic act. Thus every operative
clause of the suffrage act is opposed to the plain
provisions of the organic act. Nothing is left. But if
either the first or third objection alone be sustained, it
destroys the entire act. If the parts to which those
objections are directed be eliminated, the act is left in
such an incomplete condition that the courts would not
sustain it. (Cooley's Const. Lim. 178-9.)
J. C. Haines, as amicus curiae, for Defendants in Error.

Judge(s) Mr. Chief Justice JONES delivered the opinion of
the court. LANGFORD, J., and ALLYN, J., concurred.

Opinion By: JONES
Mr. Chief Justice JONES delivered the opinion of the court.
The appellant commenced this action in the District Court
for Spokane county, upon the following complaint:
"The above-named plaintiff complains of the above-named
defendants, and alleges that the city of Spokane Falls is a
municipal corporation, existing as such city under and by
virtue of the laws of Washington Territory, and was existing
as such city under and by virtue of such laws at the times
hereinafter mentioned. That, by an act of the legislative
assembly of Washington Territory, approved November 28,
1885, the said city of Spokane is divided into four wards,
and all that portion lying west of Howard street and south
of Riverside avenue constitutes and is within the fourth
ward of said city. That, under and pursuant to an act of the
legislative assembly of Washington Territory, 'An act to
amend an act to incorporate the city of Spokane Falls,'
approved November 28, 1883, an election was duly held in
said city of Spokane Falls, and in each ward thereof,
including the said fourth ward thereof, on the first
Tuesday, to wit: on the 3d day of April, 1888, for the
election, by the qualified voters of said city, of a mayor
and other administrative officers, and for the election in
each ward respectively, and in said fourth ward, of members
of the city council. That the plaintiff is, and at all times
herein stated, and on said 3d day of April, 1888, was, a
female citizen of the United States, and was on said date
more than twenty-one years of age. That she was then, and
for more than one year prior thereto had been, a resident,
and a citizen, and a qualified elector of the Territory of
Washington, and had then, and for more than one month
immediately preceding said election, resided within said
city of Spokane Falls, and for more than five days prior to
said election within the fourth ward of said city, and was,
on said 3d day of April, 1888, a qualified elector in said
fourth ward of said city. That the defendants John Todd, J.
E. Gandy, and H. A. Clarke were duly constituted and
appointed judges of election for said election in and for
said fourth ward of said city, and that the said defendants
accepted such appointment, and on said 3d day of April,
1888, duly qualified as such judges and entered upon the
duty of holding and conducting said election in and for said
fourth ward of said city, and did hold and conduct the same.
That the plaintiff, on said 3d day of April, 1888, and
between the hours of nine o'clock in the forenoon and six
o'clock in the afternoon, presented herself at the place
appointed for holding said election in said ward and for
receiving votes therefor, and where the said defendants as
judges of said election were holding and conducting said
election, and tendered to said defendants as such judges of
election a white paper four inches in width and twelve
inches in length, containing the names of the persons for
whom she intended and desired to vote at said election for
the office of mayor of said city and for other
administrative officers thereof and for the office of
councilman from said fourth ward, and insisted and demanded
of the said defendants as such judges of election that they
receive the same as a ballot at said election; but the said
defendants, disregarding their duties in the premises, did
fraudulently, and maliciously, and without any sufficient
cause, and with the intent to injure plaintiff, refuse to
receive said ballot then and there tendered to them by the
plaintiff, and refused to permit the plaintiff to vote at
said election, by which refusal, made fraudulently, and
maliciously, and without any sufficient cause, and with
intent to injure the plaintiff as aforesaid, the plaintiff
was deprived of the right to vote in said ward at said
election, to her great ignominy and disgrace, and to her
damage in the sum of five thousand dollars. Wherefore, the
plaintiff demands judgment against the defendants for the
sum of five thousand dollars and for her costs of suit."
To which complaint the appellees demurred, as follows:
"The said defendants demur to the complaint filed in this
action, and for cause of demurrer allege that the complaint
does not state facts sufficient to constitute a cause of
action."
The District Court sustained this demurrer, and judgment
was entered thereon, from which judgment this appeal is
taken.
In this court the facts are admitted to be as follows: The
plaintiff is a woman, and, unless disqualified by reason of
her sex, is a qualified elector of the fourth ward of
Spokane Falls, and was such on the 3d day of April last. The
defendants were the duly appointed and acting judges of
election, at an election regularly held on the 3d day of
April, 1888, in said city, and fourth ward thereof, for the
election of a mayor and other executive officers of said
city of Spokane Falls, and for members of the city council
of said city, including a member of the council from said
fourth ward, on which day an election was held in said city
and ward. On said day, and while defendants were acting as
such judges of election in said ward, and within the hours
prescribed by law for voting therein, the plaintiff
presented herself at the place where said election was being
held and conducted in said ward by the defendants, and
tendered them a printed ballot, in the form prescribed by
statute, containing the names of the persons for whom she
desired to vote, which the defendants refused to receive,
and refused to permit her to vote at such election. This
action is brought to recover damages from the defendants for
thus wrongfully depriving her of the privilege of voting.
The defendants demur, upon the ground that the complaint
does not state facts sufficient to constitute a cause of
action.
The only point raised by the defendants in the court below
was as to the validity of the act of the legislative
assembly, approved January 18, 1888, conferring the
privilege of suffrage upon women; and it is assumed that no
other question will be raised in this court. The correctness
of the decision of the District Court on the act of the
legislature in question is the only point here to be
considered. That act (chap. 51, Laws 1888) reads as follows:
"That all citizens of the United States, male and female,
above the age of twenty-one years, and all American
half-breeds, male and female, over that age, who have
adopted the habits of the whites, and all other inhabitants,
male and female, of this territory, above that age, who have
declared on oath their intentions to become citizens of the
United States at least six months previous to the day of
election, and shall have taken an oath to support the
constitution and government of the United States at least
six months previous to the day of election, and who shall
have resided six months in the territory, sixty days in the
county, and thirty days in the precinct next preceding the
day of election, and none other, shall be entitled to vote
at any election in this territory; and provided, that no
officer, soldier, seaman, mariner, or other person in the
army or navy, or attached to troops in the service of the
United States, shall be allowed to vote at any election in
this territory, by reason of being on service therein,
unless said territory is, and has been for a period of six
months, his permanent domicile; provided, he was a citizen
of this territory at the time of his enlistment; and
provided further, that nothing in this act shall be so
construed as to make it lawful for women to serve as
jurors."
In the construction of statutes certain rules have
obtained, well considered in many cases in different courts
and in text-books, so that a court cannot be misled if these
rules are followed. Human language being incapable of always
accurately expressing the intention of the legislature,
recourse is had to the customs and institutions existing at
the time of the enactment of a law in order that the actual
intention of the legislature may be ascertained. This is not
simply interpretation. Interpretation differs from
construction in this: that it is used for the purpose of
ascertaining the true sense of any form of words; while
construction involves the drawing of conclusions regarding
subjects that are not always included in the direct
expression. In all constitutional governments the powers of
government are divided or allotted to different officers or
departments, and each of these has by constitutional
limitation certain powers, generally independent of each
other, and usually involving the duty of interpretation, and
often of construction, upon each of the several departments
or officers who have the administration of the government in
charge. Constitutions have not as a rule, provided for a
tribunal whose specific duty is that of solving difficult
questions which may arise under it prior to the necessary
solution resulting from litigation. Frequently, but not
always, constitutions provide for the taking the advice of
the judiciary by the legislature prior to the enactment of a
law; but in this territory no such duty is devolved upon the
courts, and the construction or interpretation of statutes
is an after-duty devolving upon them. The executive
department of this territorial government is charged with
this duty often in the interpretation as well as the
construction of the powers devolving upon the executive by
virtue of the organic act, as well as by the acts of the
legislature. But, as a rule, the construction and
interpretation of the laws arise after enactment. To
illustrate further, the administration of public justice, in
this territory, is conferred upon the courts, and the courts
perform that duty by first ascertaining the facts in any
case, and giving effect to their conclusions of fact by
applying the laws to the facts ascertained. In doing so, a
construction or interpretation of law is necessary. The
right and power of courts to do this is so universal that
their conduct in that regard is unquestioned. In performing
this duty, a court has the aid of a long line of decisions
of other courts which have existed before it; and their
interpretation and construction of similar statutes and
constitutions--many of those courts having superior
authority, and the decisions of other courts not having such
superior authority, but of similar jurisdiction, their
decisions being in the same line and on similar questions of
construction and interpretation--have the force of argument
and are of persuasive power. Other courts, of the same
jurisdiction, resort to them for aid in the interpretation
of laws of similar character. Where inferior courts construe
laws or constitutions, their decisions may be reversed by
the court of last resort, as, in this territory, a decision
of this court may be reversed by the Supreme Court of the
United States, and its decision become authoritative. In the
state courts a long line of decisions upon the same
subject-matter continues to be followed, even though the
general sense thus given to the words are not satisfactory
to the courts of a later date. The doctrine of stare decisis
is applicable in its full force within the territorial
jurisdiction of the courts making such decisions, and this
rule is usually followed because it is deemed better to
follow that which is already established rather than reopen
a question and thereby disturb rights once adjusted. The
construction of statutes and constitutions should be uniform
and unvarying. They should not be made to mean to-day one
thing, and another thing to-morrow or at any subsequent
time. If the interpretation or construction put upon it by
the court is unsatisfactory, it is, in this country, in the
power of the people to obviate the difficulty by a new
constitution, or an amendment thereto, or by changing a
statute. It is for this purpose that constitutions are made;
that there may be stability in the government which thus
furnishes the fundamental law; that varying moods of public
opinion, clamors of the populace, or even public sentiment,
shall not affect the fundamental law of the land, and thus
leave us without any stable and unchanging guide--when the
public passions or resentment of the populace might carry
the state out upon a sea of revolution, with only passion
for a guide. An excited public opinion is quite as likely,
indeed history shows more likely, to be in the line of
oppression than that of liberty and law; and constitutions,
should they change with equal facility, would become alike
oppressive and unendurable. It is the duty of a court, in
construing a statute, to give effect to the intent of the
legislature, even though in doing so a seeming violence is
done to some of the words employed. The intent is the law,
no matter what form of words is used in expressing that
intent. Primarily, this intent is to be found in the words
of the law itself, and the presumption attaches that the
language used will furnish conclusive expression of that
intent; but examination by the courts often demonstrates the
fact that men use words in such manner as would establish a
rule directly contrary, or widely at variance, with the
intent of the lawmaking power. While the legislature should
be considered to mean what they have said, and leave no room
for construction, yet, growing out of the subject-matter and
facts existing at the time when the law is made, such
intention is not always found in the mere words used. In all
cases the entire enactment upon the same subject, or upon
others of similar character, should be examined together in
order to ascertain the intent of the law-making power. Our
ancestors brought with them to the American colonies the
common law of England, and that law should be kept in mind
in considering the enactments of legislatures or construing
clauses in a constitution, as throwing light upon and
furnishing great assistance in ascertaining the intent of
the makers of the law. The ordinary use of words at the time
when used, and the meaning adopted at that time, is usually
the best guide for ascertaining legislative intent, as it is
always the intent of any written instrument or law at the
time it was made that is to govern in enforcing it. It is
therefore well to inquire, in all cases, as to the meaning
of words, and the force to be given them at the time when
they were used, either in written contracts, constitutions,
or legislative enactments. And while, as a general thing, it
will be taken for granted that when words are used in one
place in some legislative enactment, or in a contract, they
will have a like meaning in every other place in the same
instrument, yet this is not always true. Story, in his work
on the constitution (vol. 1, sec. 454), lays down a rule, as
follows: "It does not follow, either logically or
grammatically, that because a word is found in one
connection in the constitution, with a definite sense,
therefore the same sense is to be adopted in every other
connection in which it occurs. This would be to suppose that
the framers weighed only the force of single words, as
philologists or critics, and not whole clauses and objects,
as statesmen and practical reasoners; and yet nothing has
been more common than to subject the constitution to this
narrow and mischievous criticism. Men of ingenious and
subtle minds, who seek for symmetry and harmony in language,
having found in the constitution a word used in some sense
which falls in with their favorite theory of interpreting
it, have made that the standard by which to measure its use
in every other part of the instrument. They have thus
stretched it, as it were, on the bed of Procrustes, lopping
off this meaning when it seemed too large for their purpose,
and extending it when it seemed too short. They have thus
distorted it to the most unnatural shapes, and crippled,
where they sought only to adjust its proportions according
to their own opinions." Another rule that obtains in all the
courts is, that when a general power is conferred, or a duty
enjoined, every particular power necessary for the exercise
of the one or performance of the other is also conferred,
and the particular parts must be made to harmonize with the
entire purpose. This is, however, modified by another rule:
that, when the means for the exercise of a granted power are
given, no other or different means can be implied because
more effectual or convenient.
A further source of light in the construction of a statute
or a constitution, aside from the mere examination of words,
and that which is implied, is found in the subject-matter of
which the statute or constitution treats, and the object to
be accomplished, the evil to be remedied, or the right to be
granted, in order that, by grasping the motive in the same
light in which the law-maker saw it, we may the more readily
or thoroughly apprehend his meaning and the thought he would
convey to others, than we would otherwise be able to do if
we simply knew and understood what the words implied in
endeavoring to convey to us that meaning. The context often
controls the meaning of a word or phrase, either by
extending or limiting its signification. A conspicuous
example is given in the authority last cited. In our form of
government the national legislature is governed by a
constitution granting to it certain powers, which are called
"enumerated powers," and are, in fact, enumerated in the
constitution itself; and any power not specified in the
constitution specifically, or by necessary implication, does
not exist at all. The congress can claim no powers which are
not thus granted. This applies not only to the constitution
as originally made, but as it now exists, with the
amendments. ( Gibbons v. Ogden, 22 U.S. 1, 9 Wheat. 1, 6 L.
Ed. 23; U. S. v. Cruikshank, 92 U.S. 542, 23 L. Ed. 588.)
The state, on the contrary, by its constitution, takes away
or limits legislative power, instead of giving it, as is
done by the federal constitution; and, except as limited by
the constitution of the state, or of the United States, the
state legislature may enact any law they deem for the
welfare of the people under their jurisdiction. The organic
act of the territory, in this respect, furnishes a
constitutional limitation beyond which the legislature of
the territory cannot rightfully proceed. Congress created
territorial governments, and furnished the rule of conduct
by which the government is to exist, and provided the
limitations to each branch thereof. Legislation, of course,
must not be in conflict with the laws of congress, under and
by which it is organized and the power to legislate is
granted, and the rules enacted by congress limit the power
of the legislature to make laws.
Recurring, now, to the claim here made involving the act
of 1888, already cited, we are to inquire what was the
intent of congress in the use of the word "citizen" as found
in the organic act. (Rev. Stats., sec. 5506; 10 Stats. at
Large, 174, sec. 5.) Section 5 reads as follows: "That every
white male inhabitant, above the age of twenty-one years,
who shall have been a resident of said territory at the time
of the passage of this act, and shall possess the
qualifications hereinafter prescribed, shall be entitled to
vote at the first election, and shall be eligible to any
office within said territory; but the qualifications of
voters and of holding office at all subsequent elections
shall be such as shall be prescribed by the legislative
assembly; provided, that the right of suffrage and of
holding office shall be exercised only by citizens of the
United States, above the age of twenty-one years; and those
above that age, who have declared on oath their intention to
become such, and shall have taken an oath to support the
constitution of the United States and the provisions of this
act; and provided further, that no officer, soldier, seaman,
mariner, or other person in the army or navy of the United
States, shall be allowed to vote in said territory, by
reason of being on service therein, unless said territory
is, and has been for the period of six months, his permanent
domicile; provided further, that no person belonging to the
army or navy of the United States shall ever be elected to
or hold any civil office or appointment in said territory."
The privilege of voting is not a natural right, but a
privilege conferred by law. (Cooley's Const. Lim. 752.) It
may be limited or enlarged by the legislature within its own
constitutional limitation of power. Section 5, above quoted,
provided, first, that at the first election held in this
territory, every "white male inhabitant, above the age of
twenty-one years, who shall have been a resident of the
territory at the time of the passage of this act, and shall
possess the qualifications hereinafter stated, shall be
entitled to vote and hold any office within the territory,"
and it is manifest that but for this act of congress the
right to vote at such election would not have existed at
all. It is, therefore, a privilege conferred upon the class
named by that act. It is to be noted, also, that it is
conferred expressly upon "every white male inhabitant above
the age of twenty-one years." Had it been the pleasure of
congress, the act might have limited it simply to male
inhabitants, or have extended it to persons under twenty-one
years of age, and not have limited it to males. The same
section provides, further, that the qualification of voters
and of office-holders at all subsequent elections shall be
such as shall be prescribed by the legislative assembly; "
provided, that the right of suffrage and of holding office
shall be exercised only by citizens of the United States,
above the age of twenty-one years, and by those above that
age who shall have declared on oath their intention to
become such, and shall have taken an oath to support the
constitution of the United States and the provisions of this
act." These latter provisions in the act of congress might
have been omitted entirely and the privilege of voting
remained vested in the "white male inhabitant," without
reference to citizenship or other qualification whatever,
the words "white male inhabitants" being words of limitation
as well as words granting the privilege of suffrage and of
holding office. The word "citizen," also contained in the
proviso, is also to be construed as a limitation upon the
legislative power, and was quite evidently intended to
establish a different rule from the words first quoted. The
word "citizen" at that time included, as now, all
native-born inhabitants of the United States, without regard
to sex, and if it had been intended by congress to use the
word "citizen," in the broad sense claimed for it, then
there would have been no occasion for specifying, as
congress did, in the first phrase, "white male inhabitant,"
if, in the use of the word "citizen" in its place in the
proviso it was intended to include females as well as males;
the change from "white male inhabitant" to the word
"citizen" quite evidently being used for the purpose of
excluding aliens, and not for the purpose of enlarging the
grant, and there understood with reference to suffrage as
applying to male "citizens" alone. The power granted by
congress in this section not being intended by the latter
phrase to extend the first grant made to the "white male
inhabitants," but to limit it to a smaller class of people
in this territory; and yet the same fact that the word
"citizen" at that time applied to all native-born persons,
the same as it now does, was then well understood in a
general sense, but was equally well understood as applicable
only to male citizens of over twenty-one years of age when
used as relating to the granting of the privilege of the
elective franchise. That this is true, an examination of the
enabling act itself will furnish a criterion upon which
judgment may rest. The same proviso which relates to the
elective franchise also relates to persons who are entitled
to hold office in the territory. The same act provides that
every territory shall have the right to send one delegate to
congress, and the only limitation is that he shall be a
citizen. It will not probably be contended by any person but
that the delegate was intended to be and, indeed, must be a
man, and an elector within the territory; and it certainly
was not within the intent of congress that a woman should go
to the house of representatives as a delegate. The thought
was not in the mind of anybody. The act also provides for
the election of justices of the peace and other judicial
officers. Yet will it be claimed that it was within the
contemplation of congress at the time of the passage of this
act that these might be filled by women? That at that time
it was within the intent of congress that under that act
women might be elected to hold those offices? It might have
been better, and perhaps would now be a step in advance, if
such had been the case; but was that the legislative intent
at that time?
If we turn to the constitution of the United States we
find that the whole structure of the instrument is based
upon the idea present in the minds of the makers of it that
the officers provided for therein shall be males. In the
first place, and as of minor importance, the form of every
word in the constitution relating to the holding of office
under that constitution is masculine. It provides that the
senate shall be composed of two senators from each state. No
person shall be a senator who shall not have reached the age
of thirty years. The vice president shall be the president
of the senate. No person shall be eligible to the office of
president except a native-born citizen, who shall hold his
office during the term of four years, and shall be elected
as therein provided. The judicial power shall be vested in
one supreme court, the judges whereof shall hold their
offices during good behavior. In numerous other instances it
is conclusively apparent that at the time of the framing of
that instrument the idea of a woman holding office under
that constitution was as foreign to the mind as that a woman
might be president under that constitution; else the sole
limitation would not have been that the president should be
a native-born citizen of the United States. If the word
"citizen," as there used, had been supposed to include
females, it will not now be questioned but that there would
have been an express negation in that regard. Such has been
the uniform practical construction ever since its adoption,
and for more than thirty years our organic act has likewise
been construed to mean "male citizen," when the privilege of
voting has been under consideration, and even now it is not
disputed but that was the sense in which congress then used
the word.
This practical construction is not to be ignored or
evaded. As we have before said, the construction of an act
of the legislature should be uniform and unvarying in order
to protect the liberties of the people, and this is not
unfrequently carried out by the consideration of the words
used as of the time when they were used, and the practical
contemporaneous construction at and succeeding the times
when used, forming a part of the act to the same extent as
if contained within its specific words. No other rule can be
safely followed. Words have different significations at
different times and in changed circumstances, but in a
fundamental law they must always be of the same meaning in
the same connection, and it rests with the supreme power to
establish a new rule. The same rule is applicable to other
words, and their significance cannot be gainsaid or changed
because the opinions of men change with their desires. Ever
since the colonial law provided that a person accused of a
crime should be tried by a jury of "twelve honest men," the
word "jury," standing alone, has meant the same thing. That
there have been here and there exceptions, help to establish
the rule, and there can be no doubt in the mind that the
word "jury," as found in the national constitution and our
own laws, has and can have but the one meaning until
competent authority shall in express terms make a different
meaning possible. We are cited, as opposed to the views here
expressed, to the case of Murphy v. Ramsey, 114 U.S. 15, 5
S. Ct. 747, 29 L. Ed. 47. There were five cases of similar
character carried from the Supreme Court of Utah to the
Supreme Court of the United States and embraced in the
opinion here referred to. The facts in these cases are
carefully set out by Mr. Justice MATTHEWS, and the
contention grew out of the act of congress known as the
"Edmunds Act," whereby a board of commissioners was
appointed for the territory of Utah, growing out of the
condition of affairs there relating to the subject of
polygamy in that territory. This board had extended that act
so as to interfere with and control the action of
registration officers and affect the qualification of voters
in that territory. While it is true that it appears in that
case that under the law of Utah women possessed the
privilege of voting, yet that question was not argued before
the Supreme Court, and was not in any manner passed upon by
that court. Mr. Justice MATTHEWS, who delivered the opinion
of the court, is careful to say that on the examination of
the ninth section of the act of March 22, 1882, providing
for the appointment and prescribing the duties and powers of
that board, it shows that they have no functions whatever to
perform in respect to the qualification of voters, much less
to prescribe any qualification of voters as a condition of
registration. It is true that the court in that case
consider the questions involved without reference to the
question of the right of females to vote under the laws of
Utah, and place it upon the ground that the board were
powerless in that regard, and therefore we consider that
decision as without force in this regard. And it appears
therefrom conclusively that the Supreme Court, by that
decision, furnished no ground whatever for the contention
here made that the laws of Utah authorizing woman suffrage
have received the sanction of that court. The case of Minor
v. Happersett, 88 U.S. 162, 21 Wall. 162, 22 L. Ed. 627, is
also cited for the purpose of showing that the provisions of
the fourteenth amendment to the constitution of the United
States, wherein it is said that all persons born or
naturalized in the United States, and subject to the
jurisdiction thereof, are citizens of the United States and
of the state wherein they reside, are by the words used in
affirmance of the construction contended for by appellant.
The decision proceeds upon an exactly opposite theory, and
denies the doctrine contended for, and therefore it does not
follow that the use of the word "citizen" in the enabling
act conveys the idea or carries with it the proposition that
the legislature has the right to confer the privilege of
suffrage upon female citizens; nor can it be true, unless it
be further contended that at the time of the passage of the
organic act of the territory the word "citizen" necessarily
implied a female as well as a male citizen, when used as
empowering the legislature to grant the privilege of voting
to all citizens. While there is no contention that the word
"citizen," before and since the adoption of the fourteenth
amendment, included women, yet the authority referred to
expressly declares that the right of suffrage was not one of
the privileges or immunities of citizenship guaranteed by
that amendment. (See, also, Van Valkenburg v. Brown, 43 Cal.
43.) Continuous illness since the argument of this case
prevents me from going more at large into the subject than I
have already done; but, in view of the considerations herein
urged, we are to declare what was the intent of congress by
the organic act of the territory in the respect referred to,
and to give force to that intent. In construing agreements
merely between parties, and even more especially when giving
a construction to a statute, the thing which we are to
arrive at with as much certainty as we are able is the
thought which it was intended to express, and the intent of
the power prescribing the rule; and we are to enforce this
intent as it existed at the time it was made. In 1852, when
this act was passed, the word "citizen" was used as a
qualification for voting and holding office, and, in our
judgment, the word then meant and still signifies male
citizenship, and must be so construed. That the rule
contended for might be better, we are not called upon to
determine. The congress can confer the desired power upon
our legislature, and we cherish the hope that in the near
future our own citizens will have an opportunity to
determine this question for themselves in the formation of a
constitution for the state of Washington.
The judgment of the court below should be affirmed.
LANGFORD, J., and ALLYN, J., concurred.