History of Salt Lake City, Part 107

Author: Tullidge, Edward Wheelock
Publication date: 1886
Publisher: Salt Lake City, Star printing company
Number of Pages: 1194

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"The demonstration of May 6th, 1879, in honor of one who was regarded by the people as having been made to suffer unlawfully, to gratify the malicious spite of officials, will long be remembered in this Territory."

CHAPTER LXXXIX.

RENEWAL OF THE POLITICAL ACTION. FORESHADOWING THE EDMUNDS BILL IN HAYES' MESSAGE. GOVERNOR MURRAY GIVES THE ELECTION.CERTIF- ICATE TO CAMPBELL. CONTEST FOR THE DELEGATE'S SEAT. - GREAT SPEECH OF CANNON ON HIS RETIREMENT FROM CONGRESS.

In the fall of 1880, the political action of Utah was renewed ; and Salt Lake City, which for several years had witnessed no contests at elections, either munic- ipal or Territorial, was awakened to a new campaign by the loud calls of the leaders of the Liberal party.

After repeated defeats in the contests for delegates to Congress, with Max- well contestant against Hooper, and Baskin against Cannon, the Utah Liberal party languished notwithstanding the great increase of the Gentile population.

Such was the condition of this party for several years, but in 1880, as the time drew nigh for the election of delegate to Congress, the Liberals throughout the Territory were moved with a common desire to resuscitate their organization and once more open the contest with the People's party. A new standard bearer was needed to be chosen to rally the Liberal party for the irrepressible conflict. Even Mr. Baskin, the last contestant, felt this need, and though his personal record was acceptable to his party, he knew it was quite useless for him to again contest the seat with Cannon. There were other strong men of the bar, such as Judge McBride, quite capable of assuming a political leadership, but the common judgment of the time, among the leaders of the Liberal party, was that they needed for the revival of their cause a man of considerable strength of character who represented the mining interest, and who could, without a dissenting voice,

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unite the mining constituents throughout the Territory. In this view of the case Allen G. Campbell stood head and shoulders above all other men, and before they met in caucus for the nomination it was known among the leaders that the "Camp- bells were coming."

The night of the nomination came and the Liberal Institute was crowded with those in sympathy with the cause of the Liberal party. For years there had not been such an enthusiastic gathering of that party, and evidently the enthusi- asm was generated by the conviction that the fitting man was found to bear the standard of that cause, not only in the contest at home, but one who would fight it out in Washington to the last syllable of his term. In keeping with this feel- ing the brass band from Fort Douglas was there to give a martial swell to the oc- casion of the revival of the war between the two powers. The strongest men of the party were on the platform, and delivered stirring speeches, among whom were Judges McBride, Hagan, and the former contestant, Baskin ; while from the body of the hall, upon loud calls, Governor Murray, in a short ringing speech, gave a bold declaration of war between " the American Republic and the Mormon Polygamic Theocracy." Such was the wording by all the speakers. None of them pretended that it was a mere political fight. Judge Hagan indeed, dwelt upon it as the " irrepressible conflict," in the same sense as it was once under- stood as existing between the North and the South, and while affirming that it must be fought out to the bitter end, he admitted that the prospects then were that years might elapse ere the Liberal party would win the day. The name of Allen G. Campbell was announced amid acclamations as the man for the times, and on the rest for committee business, Maxwell called for the Fort Douglas band to play " The Campbells are coming," and the bind struck up the theme, ac- companied with vociferous cheering by the audience.

Mr. Campbell was in New York when he received the nomination. As he was returning to Utah he met Mr. Cullen at Chicago, who told him of the nomi- nation, whereupon he communicated his acceptance to the central committee of the Utah Liberal party.

Utah affairs were about to be brought before Congress and the country by new and surprising methods ; and, though the measure had not then been divulged to the public, the Edmunds Bill had doubtless already been conceived, and the political coup d' etat of giving to Mr. Campbell the certificate of the election was constructed as the initial move upon the board.

There were more than the leaders of the Utah Liberal party working on this plan. Senator Edmunds and other principal statesmen of the republican party were, probably, well advised of the design and engaged in shaping the action in Congress upon this very contest of Cannon and Campbell.

The first indication given to the country of the "new departure " on Utah affairs in Congress was in the message of President Hayes, delivered in December 1879, in which he said :

" The continued deliberate violation by a large number of the prominent and influential citizens of the Territory of Utah of the laws of the United States for the prosecution and punishment of polygamy, demands the attention of every

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department of the Government. This Territory has a population sufficient to en- title it to admission as a State, and the general interest of the Nation, as well as the welfare of the citizens of the Territory, require its advance from the Terri- torial form of government to the responsibility and privileges of a State. This important change will, however, never be approved by the country, while the cit- izens of Utah, in very considerable number, uphold a practice which is con- demned as a crime by the laws of all civilized communities throughout the world. The law for the suppression of the offense was enacted with great unanimity by Congress more than seventeen years ago, but has remained until recently a dead letter in the Territory of Utah, because of the peculiar difficulties attending its enforcement. The opinion widely prevailed among the citizens of Utah that the law was in contravention of the constitutional guarantee of religious freedom. This objection is now removed. The Supreme Court of the United States has de- cided the law to be within the legislative power of Congress, and binding as a rule of action on all who reside within the Territories. There is no longer any reason for delay or hesitation in its enforcement. It should be firmly and effect- ively executed. If not sufficiently stringent in its provisions, it should be amended, and, in aid of the purpose in view, I recommend that more comprehensive and searching methods for preventing, as well as punishing, this crime be provided. If necessary to secure obedience to the law, the enjoyment and exercise of the rights and privileges of citizenship in the Territories of the United States, may be withheld or withdrawn from those who violate or oppose the enforcement of the law on this subject."

Evidently the foregoing utterance of President Hayes, in his last message to Congress, was in anticipation of some such a measure as that of the Edmunds Bill, the appointment of the Utah Commission, the disfranchisement of polyga- mists and the final design of of taking all political power out of the hands of the Mormon leaders, to be followed by the admission of Utah as a State.

In this view, the great contest between Allen G. Campbell and George Q. Cannon forms one of the principal chapters in the political history of our Terri- tory. Judge McBride conducted the legal action of the case for his client, Campbell ; and the following protest was the initial of the contest after the election :

To His Excellency ELI H. MURRAY,

Governor of the Territory of Utah :

The time will soon arrive for the final canvass, under your supervision, of the returns of votes given at the late election for delegate to Congress from this Territory.

I am not ignorant of what the public generally know in respect to the voting at this election and its supposed result. On the surface the returns will not show, probably, that a majority of the votes ac- tually cast were given for me. But if it be true, as I insist it is, that all the votes not polled in my favor are legally blank, then I owe it to those who placed me in nomination, and by a still greater obligation to the whole community, in the interest of good government to protest, and I do protest, against the counting of any votes for George Q. Cannon.

The performance of this duty, however, would be productive of no result except to mortify and dis- gust legal voters whose choice is nullified, unless there is a power conferred on you to so conduct this canvass that legal voters shall only be included.

If it were a matter of indifference whether the names voted for as candidates represented actual per- sons or mere mythical characters, persons qualified or persons ineligible ; if it were immaterial to dis-

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crim.nite between votes given by those entitle I to exercise the elective franchise and those given by per- to whom the law excludes on the ground of sex, minority, or alienage from the privilege of voting. then a mere count of votes, and comparison of aggregates, would decide to whom your certificate of election should be given. It is not, however, consonant to the American theory of popular elections to office to ignore such disqualifications, nor to confer such limited powers upon those charged with the duty to ascertain the result, that there can be no elimination of votes illegally received.

It cannet be said that the laws have so imperfectly guarded the ballot box and provided for pure and regular elections that if illegal votes are once received, by some error of judgment or failure of duty by officers registering voters or having the immediate control of election, the wrong is forever incapable of rectification.

No remedy is adequate or effective in respect to offices for short terms which does not administer the corrective during the canvass, for before any other remedy can be sought and applied, the motive to pursue it ceases by the expiration of the term; the wrong prospers and the authors are thereby en- couraged to repeat it, and generally do.

This subject has such local importance that I venture some suggestions in support of your powers in the premises, at the risk of incurring your criticism for assuming to defend the executive jurisdiction.

Section 25 of the Utah Compiled Laws provides : "That so soon as all the returns are received, the secretary, in the presence of the governor, shall unseal and examine them, and furnish to each person having the highest number of votes for any Territorial office a certificate of his election.' The returns here spoken of are: A brief abstract of the offices and names voted for and the number of votes each person receives.

By sections 23 and 24 it will be observed that the duty imposed by section 25 is to give the certifi- cate to the person having the highest number of votes, and that it is not required by the terms of that sec- tion that the highest number of votes shall be determined from the returns. The duty to examine the returns, and that to give a certificate, are successive and distinct duties. The returns from certain coun- ties, or the vote of certain precincts, may have to be rejected, for causes apparent on the face of the re- turns, or other evidence may afford grounds for such rejection.

The direction to you and the secretary as final canvassers is to issue the certificate to the person hav- ing the highest number of votes, not to him appearing by the returns to have the highest number ; therefore, since the mode of useertaining the important fact is not prescribed, and since on general prin- ciples, when a general duty is required to be performed. there is conferred by necessary implication the incidental power to adopt any suitable means necessary to the doing of that duty, evidence may be re- ceived in connection with the returns, to assist in coming to a correct conclusion. This construction of the statute harmonizes your functions in respect to this office with those of similar offices generally. -

In Cushing's Law and Practice of Legislative assemblies, page 52, the author quotes from another ; 'There can be no doubt that in those branches wherein the law has marked out a definite line it is ministerial but as regards the two material branches of deciding upon the capacity or incapacity of candidates, or upon the qualifications or disqualifications of electors, the subject requires some investigation ; but if the returning officer (you are clearly one) be fully apprised of some notorious disqualification, whether of a candidate or of an elector, such as their being minors, or claiming in the right of property, which clearly does not entitle them to the privilege, he is so far a judicial officer as to prevent their voting or being returned.' and the author adds: ' In judicial decisions of this country, when the point is adverted to, it seems to be considered that the functions of returning officers are chiefly judicial in their character."

If so, it follows, of course, in the absence of a legislative rule to the contrary, that you are to act upon evidence, and on any evidence which applies to the subject and would be competent before any other judicial tribunal having the same question to decide.

1 shall, in accordance with these views, address this my protest to you as a quasi-judicial officer, protest against the issue of any certificate of election to George Q. Cannon, and I demand the issue of one to myself, because he has not, and I have, the highest number of votes for the office of delegate to Congress of the United States, on the following grounds:

1 irst. It will appear ly the returns to the secretary that 1,357 votes were given for me for said office, and there is no evidence tending to gainsy my qualifications for the office, or those of the elec- Fors voting for me.

Second. George Q. Cannon is an unnaturalized alien. Being such, he is not eligible to the office ; all the votes given for him are void. I quote from the author before referred to : " If an election is made of i phon who is ineligible, that is, incapable of being elected, the election of such person is abso- Intely vod even though he is voted for at the same time with others who are eligible, and who are ac-

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cordingly elected and this is equally true whether the disablity is known to the elector or not; whether a majority of all the votes, or a plurality only, is necessary to the election, and whether the votes are given or- ally or by ballot." (Id., p. 66.) According to this author and the authorities which he cites, it is the law in this country, and also in England, that not only will the election of a disqualified person be held as void but if such election takes place after notice of the disqualification is given to the electors, the candidate having the next highest number of votes will be elected. (Id., pp. 66, 67.)

Notice of Mr. Cannon's disqualification has been very thoroughly published in this Territory before the election.

This legal objection of alienage derives great force from the political and moral aspect of his life and conduct. George Q. Cannon is a polygamist, having lived for many years and is still living with four women as wives, in violation of the law. IIe openly advocates polygamy in his public addresses in Utah, and thus incites others to break the law enacted by Congress on that subject in harmony with the moral sentiment of the civilized world.

Not only is he not naturalized, but he is not qualified to be naturalized; without thorough recon- struction he could not be proven to be a man of good moral character, nor could he, while in his present criminal contumacy, sincerely make oath that he is " attached to the Constitution of the United States and well disposed to the good order and happiness of the same."

Third. Under void legislation of this Territory, females have voted in large numbers ; they are par- tisans of said Cannon, and it must be taken for granted that they voted for him at the last election. Calculating the present number of votes in this Territory by adding to the vote given six years ago (about 27,000) according to the ratio of popular increase from 1870 to 1880, as shown by the census returns, there were at least 40.000 de facto voters in the Territory when the last election took place, The entire vote polled at this election, including the votes of females, was less than 20,000 ; therefore, at least 20,000 voters stayed at home, and less than half the total vote was actually polled and returned.

The females in this Territory claiming the right to vote outnumber the males having that right; the poll lists show also that they outstrip the males in voting. Thus it will be seen that there are more fe- males in this Territory claiming the right to vote than the whole number of votes polled at the late elec- tion. As these votes are illegal, how can you avoid the conclusion that they have vitiated the election by rendering it impossible to determine without proof that the pretended majority reported for Mr. Cannon does not consist of such votes. The fact that there was such an enormous illegal vote known as certain to be polled, will account for the absence of so many legal voters from the polls.

That the act of the Territorial Legislature purporting to establish female suffrage is void, is now generally conceded. It is so because it attempts to confer the privilege by a special act on different and easier terms of qualification than those required by existing general law applicable to the other sex, thus violating the rule of uniformity.

In conclusion, be it understood that I protest against the issuance of any certificate to George Q. Cannon as the substantive matter and purpose of this paper ; and it seems clear beyond all controversy that if he is not qualified to hold the office, that no majority of legal votes can be said to have been given for him, that it is within your power for these causes to withhold the certificate of election.

On reaching this conclusion as a secondary matter, I trust you will find it consistent with your views and in the line of your duty to hold that the votes given for me entitle me to the certificate.

With great respect I have the honor to be, your obedient servant,

ALLEN G. CAMPBELL.

Frisco, December 12, 1880.

A copy of this protest was sent to Mr. Cannon, who filed an answer to its allegations, and then controverted most of the facts stated (except the charge that he was a polygamist), and also contesting the positions of law assumed by Mr. Campbell.

On the issues thus made before the Governor, the two contestants for the cer- tificate of election appeared before that functionary on the 7th day of January, 1881, and the questions involved were fully argued by the counsel for each.

On the 8th of January, 1881, the Governor made a decision in writing, which was filed in the secretary's office, and issued a certificate of election to Allen G. Campbell, as the delegate elected to the House of Representatives for the

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Forty. seventh Congress, and it was delivered to Mr. Campbell. In February fol- lowing this certificate was filed in the office of the clerk of the House of Repre- sentatives at Washington.

About the same time Mr. Cannon brought an action in the United States District Court, Salt Lake County, Utah, praying for a writ of mandamus to com- pel the acting governor to issue a certificate of election to him as delegate, basing his suit upon the position that in granting the certificate the governor was only performing a ministerial duty, and was not permitted to pass upon the returns of the election, or the eligibility of the candidates, or any questions of the kind.

The case was elaborately argued on the return to the writ, and the court dis- missed the application, holding that the governor had a discretion in issuing the certificate and was not, in determining the result, confined to the returns of the county officers.

Next followed the governor's justification and issuance of the certificate Io Allen G. Campbell :

The record of the court is the only means of ascertaining its judgments and orders. The clerk's certificate of the judgments and orders of a competent court, and not his individual statements without seal, is the only guide in all cases, and therefore must be in this case. The records of the court fail to make Mr. Cannon a citizen, and he as I, must stand by the record. Mr. Cannon, under any other cir- cumstances might, perhaps, acquire citizenship by the time his term of office commences, but it is charged in Mr. Campbell's protest, and not denied in Mr. Cannon's answer, that he is living in polyg- amy, a violation of the act of Congress of 1862, making it a crime. This being the case he is not "well disposed towards the government of the United States." Therefore he cannot, in good faith, take the oath of naturalization, and the courts of this Territory uniformly enforce this rule. The House of Rep- resentatives, Congressional record, June 16, 1884, page 5 046, affirmed the same principle in House bill 3.679, providing that delegates in Congress should be twenty-five years of age, seven years a citizen, and an inhabitant of such Territory, "and no such person who is guilty of bigamy or polygamy shall be eli- gible to a seat as such delegate."

It having been shown that Mr. Cannon is not a citizen, and that he is incapable of becoming a citizen I cannot, under the law certify that he is " duly elected," and Mr. Campbell having received the greatest number of votes cast for any citizen was therefore duly elected and must receive the certificate accordingly.

I am aware that my action on this question is not final. The house is the judge of the qualifications and election of its members, but in the discharge of my sworn duty under the law to give the certificate to the person duly elected, I cannot do otherwise than give it to Allen G. Campbell.

ELI H. MURRAY.

Certificate of election issued to Allen G. Campbell, Delegate to the Forty-seventh Congress.

UNITED STATES OF AMERICA,

Territory of Utah, Executive Ofice-ss.

I, Eli HI. Murray, governor of the Territory of Utah, do declare and certify that at a regular clec- tion for delegate to the Forty-seventh Congress, held in said Territory on the first Tuesday after the first Monday in November, A. D. 1880, returns whereof were opened in my presence by the secretary of the Territory, Allen G. Campbell was the person being a citizen of the United States, having the greatest number of votes, and was therefore duly elected as d legate from said Territory to said Congress, and I do give this certificate accordingly.

In testimony whereof, I have hereunto set my hand and caused the great seal of the Territory to be affixed. Done at Salt Lake City this 8th day of January, A. D. 1881.

IL, S.]

ELI H. MURRAY, Governor,

ily the Governor :

ARTHUR L. THOMAS,

Secretary of Utah Territory.

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HISTORY OF SALT LAKE CITY.

TERRITORY OF UTAH,

Secretary's Office-ss :

I, Arthur L, Thomas, secretary of the Territory of Utah, do hereby certify that the foregoing is a full, true and correct copy of the " decision of the governor in the matter of issuing a certificate to the person duly elected delegate to the Forty-seventh Congress," and of the " certificate of election issued to Allen G. Campbell, delegate to the Forty-seventh Congress," as appears of record in my office.

Attest my hand and the great seal of the Territory of Utah, this Ioth day of February, A. D. 1881, ARTHUR L. THOMAS, Secretary of Utah Territory.

[L. S.]

CREDENTIALS OF HON. A. G CAMPBELL.

UNITED STATES OF AMERICA,

Territory of Utah, Executive Office -- ss.

I, Eli H. Murray, governor of the Territory of Utah, do declare and certify that at a regular elec- tion for delegate to the Forty-seventh Congress, held in said Territory on the first Tuesday after the first Monday in November, A. D. 1880, to-wit, the 2d day of November, 1880, returns whereof were opened in my presence by the secretary of the Territory, Allen G. Campbell was the person, being a citizen of the United States, over the age of twenty-one years, having the greatest number of votes, and was, therefore, duly elected as delegate from said Territory to said Congress, and I do give this certificate accordingly.

In testimony whereof, I have hereunto set my hand and caused the great seal of the Territory to be affixed.

Done at Salt Lake City this eighth day of January, A. D. 1881.

ELI H. MURRAY, Governor.

[SEAL.]

By the Governor :

ARTHUR L. THOMAS, Secretary of Utah Territory."

NOTICE OF CONTEST. " WASHINGTON, D. C., January 20th, 1881. " ALLEN G. CAMPBELL, ESQ. :

" Sir : I have the honor to notify you that I shall contest your right to hold a seat in the House of Representatives of the 47th Congress of the United States, as Delegate from the Territory of Utah, and also your right either to be sworn or enrolled, or to hold a certificate of election as such Delegate, on the following grounds :

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History of Salt Lake City, Part 107

Author: Tullidge, Edward Wheelock Publication date: 1886 Publisher: Salt Lake City, Star printing company Number of Pages: 1194

Author: Tullidge, Edward Wheelock
Publication date: 1886
Publisher: Salt Lake City, Star printing company
Number of Pages: 1194