delivered the following opinion, dissenting from the majority of the court:
The respondent applied to the district court for a mandamus to compel appellant, Martin, clerk of County Court of Tooele County, and the other appellants, as members of the said court, to examine and canvass election returns, and to declare who were elected. A demurrer to the affidavit (treated as a complaint) was overruled, and a demurrer to the answer was sustained. The appellants, electing to stand upon their answer, the court below granted the peremptory mandamus, and therefore appellants brought the case to this court.
*150The right to the mandamus must clearly appear. Under the former practice the alternative writ was regarded as the foundation of all subsequent proceedings in the case, and resembled in this respect the declaration in an ordinary action at common law. It was necessary that upon its face a clear right to the mandamus be shown, and the material facts on which the applicant relied be distinctly set forth, so that they may be admitted or traversed by the return. Great strictness is requisite in this respect. High’s Ex. Leg. Kem. §§ 537, 538.
By tacit consent the affidavit has been' treated as the complaint and the first pleading in this case. This is in accordance with the rule as laid down in California, and also recognized by this court in a former case. People v. Supervisors, 27 Cal. 665; Chamberlin v. Warburton, 1 Utah, 267.
The affidavit as a complaint, therefore, is to be treated as the alternative writ formerly was. It is a well settled rule that a demurrer reaches back to the first fault committed by either party; and on demurrer to' the return or answer it is therefore competent for the defendant to avail himself of any material defect in the complaint or affidavit. State v. McArthur, 23 Wis. 427; Gould’s Pl., ch. 9, § 36; 1 Nash’s Pl. (4 ed.) p. 260; People v. Booth, 32 N. Y. 397; High’s Ex. Rem. § 493.
And if the answer be obnoxious to a demurrer, yet if the complaint is defective in substance judgment is properly given for defendant. High’s Ex. Kem. § 493.
When, therefore, the demurrer in this case is interposed to the answer, this demurrer reaches back to the complaint or affidavit, and it is claimed that the affidavit is defective in substance.
First — The complaint (the affidavit) does not allege or show that it was the duty of the appellants to do the various things which it is asked that they be compelled to do. The simple allegation that the appellants, after demand, refuséd to do certain things “ as required by law,” is not sufficient. What law is referred to? Some statute of the United States or. of the Ter*151ritories, or does it refer to the common law? The allegation should be definite, and the law should be designated; and I do not think that a simple designation even of the law would be sufficient, unless sufficient was alleged aside from this to sustain the relator’s case. High’s Ex. Eem. §§ 536-538.
The affidavit should have contained all of the facts which go to constitute the duty and which induce the obligation on the part of the defendant to perform the act sought to be performed. High’s Ex. Eem. § 536.
In this case, now before ns, the affidavit contains none of the facts going to show that it is the duty of appellants to do the things which they are now asking the court to compel them to do. It does not even refer to any statute, and it cannot be claimed that the mandamus should be granted in anticipation of a supposed omission of duty; an actual omission of duty must be shown. High’s Ex. Eem. § 12, and cases cited there; Ibid. §§ 39-41. For this failure, therefore, the ground for a mandamus does not appear.
Second — But if it be assumed that enough is alleged as to the duty of the appellants in the premises, by the simple recital “ as required by law,” and that “ law ” refers to “ an act providing for the registration of voters,” etc., approved 22nd February, 1818; we then must consider whether that be a valid law, as that is one of the points raised and pressed in this case.
The registration act referred to, provides that the assessor “ 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*'
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,” or “ naturalized ” (as the case may be) citizen of the *152United States, and a taxpayer in this Territory; (or if a female) 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; and the same section further provides that “ upon the receipt of such affidavit the assessor, as aforesaid, shall place the name of such voter upon the registration list of the voters of the county.” § 1.
This statute requires that each person entitled to vote and desiring to be registered shall take this oath. If his or her name be not upon the registry list, his or her “ ballot shall be rejected.” (§ 13.) It avails a party nothing that he is “ entitled to vote,” he will not be allowed to vote unless he be registered, and will not be allowed to register unless he takes that oath. His right, and the right of every citizen, to be registered and to vote, depends upon his taking that oath. Every part of that registration act is pivoted on the oath; if the oath falls then the whole registration act falls, for there is no provision made for any registration that does not depend upon that oath.
The question then for consideration is whether the oath be valid or not.
Our “ Organic Act” — our Charter — provides that citizens alone can vote (§ 5 of the Organic Act). If this provision has since been modified by United States statute (U. S. Eev. Stat. § I860,) giving the legislature power to allow aliens to vote upon declaring their intentions to become citizens, the principle is not changed in regard to the oath; for our legislature has not availed itself of this modification, and has never passed any act allowing aliens to vote upon “ declaring their intentions ” to become citizens.
The legislature can have no power to do that which the laws of Congress say the legislature shall not do. There might be sometime a disagreement as to what the legislature might do when the matter was not by law of Congress forbidden, but there can be no possible disagreement when the power is in express words denied to the legislature. The law of Congress is our constitution in the matter.
*153The Revised Statutes of the United States (§ 1860) provides that the legislatures of the Territories may fix the qualifications of voters, “ subject, nevertheless, to the following restrictions upon the power of the legislative assemblies, namely,” etc., and the first restriction is that the right of suffrage shall be confined to citizens, and those who have declared their intention to become such. This is, in effect, a constitutional prohibition upon the legislature, and if the legislature attempts to extend the right of suffrage beyond these named limits, their action is nugatory. The legislature, as I ha^ «aid, have not availed themselves of the power to extend he right of suffrage to “ those who have declared their intention to become citizens. Therefore, no person, male or female, can vote in this Territory unless such person be a citizen. The conclusion is, to my mind, irresistible, and I can see no possible way to avoid it.
The Territorial statute prescribing the qualifications of voters, uses language to which that of the oath in the registration law exactly corresponds. The assessor, then, in ascertaining who are “entitled to vote” looks to the statute; and the language of the statute and that of the registration oath being the same, it follows that the persons possessing the qualifications specified in the oath, and who will take the oath, will be allowed to register and to vote.
The oath excludes all male persons from voting who are not “ native born ” or “ naturalized,” yet it allows female persons to register and vote who are neither “ native born ” nor “ naturalized.” The evident intention was to evade or ignore the law of Congress. If this were not the purpose why not stop with the words “ native born or naturalized,” when referring to female persons, as was done when the language referred to male persons?
The daughter of a naturalized citizen is not made a citizen by her father’s naturalization, any more than a son, unless she was under twenty-one years of age at the time of her father’s naturalization, and yet this Territorial statute and oath allows *154her to be registered and to vote. She has no more right to that privilege than a sou, and the legislature had no authority to grant it to either. This cannot be deemed an unimportant matter, when we remember that two-thirds, or nearly so, of the population of this Territory, according to the last census, were of foreign birth or the children of parents who were of foreign birth.
This act, without any restrictions or limitations, allows the wives of citizens to vote, yet all wives of citizens are not citizens.
The Eevised Statutes of the United States (§ 1994) says: “Any woman who is now or may hereafter be married to a citizen of the United States, and who might herself be lawfully naturalized, shall be deemed a citizen.” Could a woman wNo has been a resident of this country less than five years be “ lawfully naturalized”? If not, then the fact of her being a wife will not make her a citizen. I am not unmindful of the limitation made in Kelly v. Owen, 7 Wall. 496, whereby the restrictive clause in the last section referred to, as it then stood, only limited the application to free white women. In that case the limitation hung upon the words “ under existing laws,” and these words have been left out of the later statute; and, not only so, but the limitation has also been expressly negatived by § 2169 of the United States Eevised Statutes, which provides that the naturalization law shall apply to persons of African birth or descent. If the hook upon which the court in that case hung its exception or qualification, has been stricken out and also expressly negatived by statute, and yet the clause, shorn of these qualifying words, “ under existing laws,” be allowed to stand and be embodied in the revision of the laws, we must conclude that there was some other matter sought to be reached, other than that of the applicant being a free white woman. In the case referred to (Kelly v. Owen) the parties to the action had all been residents of this country five years, and hence no question on that point did or could arise. The ruling there simply resolves itself into this, that *155all of the parties being of five years’ residence, then and in tliat case the only restriction was that of color. An examination of the decision will fully bear out this view.
In the case of Minor v. Happersett, 21 Wall. 162, the Supreme Court of the United States dwell at considerable length upon the subject of native born women being citizens, and refers to the‘fact that the Government has also made provision for alien women to become citizens; it refers to the same section as above given to show this, and there is nothing whatever in the opinion in that case not in harmony with the view I have given of the section.
The conclusion, to my mind, is that no married woman of foreign birth can be allowed to vote in this Territory by reason of such marriage tie, until she has been a resident of this country for five years, the time required for the naturalization of males, otherwise the law would not be uniform and would be unjust and inequitable, and in violation of the United States statutes — our constitution in such cases. Congress never contemplated such inequality.
The registration act referred to allows “ widows ” of citizens to vote, when all widows are not citizens for the same reason that all “ wives ” cannot be such. As to the citizenship itself of widows there is this exception, that if their husbands had declared their intention to become citizens, then the widow would be a citizen “ upon taking the oaths prescribed by law.” (Eev. Stat. of U. S., § 2168.) But this exception does not apply here, for the reason that a “ widow” does not have to swear that she is a citizen, nor show that she has taken the “ prescribed oath.”
The registration oath not only allows “ wives,” “ widows ” and “daughters ” to vote who are not citizens; but it, on the other hand, excludes men from voting who are citizens. A male person of foreign birth who when his father was naturalized was under twenty-one years of age, is by the act excluded from voting unless he be naturalized himself. It requires all male persons to be native born or naturalized in order to vote, *156notwithstanding it allows female persons to vote without being either naturalized or native born.
The Territorial act not only confines the male voters to those who are native born or naturalized, but it also imposes an additional burden upon them that is not imposed upon the female voters. The male voters are required to be taxpayers. Such a discrimination is unjust and unreasonable. The court, in the majority opinion, so holds, but says the oath is nugatory only to that extent. The court, as I think, has no authority for doing this. It is not an analagous instance to that of a statute which contains various grants not dependent upon each other, part of which might be stricken out and the residue stand, and in the giving of those stricken out the legislature had transcended its authority. But it might be more analagous to a grant based upon several conditions, all of which are to be complied with before the grant accrues. Here several things have to be sworn to before the party applying will be allowed to register and vote, and there is no authority to register such person if any one of those things specified are left out. Therefore, if he cannot swear to every one of the matters required by the oath, he is excluded from registration and voting. His right to vote being based upon an oath of specific provisions, the court cannot say that he can be registered and vote by taking part of that oath. The oath as given and as a whole must be taken. If one of its provisions falls, that which remains is not the oath required tor registration; and any attempt by the court to change the oath and authorize a different one is, in my judgment, simply legislating.
But as I have, I think, shown the oath in question is not defective in merely one particular; there are defects in almost every branch of it — defects that are incurable by this or any other court. The branch applying to “ wives ” is thus defective; also that applying to “ widows ”; also that applying to “ daughters,” and that applying to male persons.
A registration act founded upon an oath so bristling with *157unjust discriminations ought not to stand. An election carried on under it is a fraud upon the rights of the people.
One able text writer says that “all regulations of the elective franchise must be reasonable, uniform and impartial.” (Cooley’s Const. Liin. p. 620.) A statute that is not so is utterly void. Munroe v. Collins, 17 Ohio St. R. 665.
The statutes of the United States stand as our constitution in this matter. The oath and registration act being in direct 5 violation of the Statutes of the United States, are unconstitutional, null and void. They are not only void for the reason stated, but also because they are against the plain and obvious principles of common right and common reason. Whenever any law is calculated to operate against these principles it is null and void. Wilkinson v. Leland, 2 Peters, 657; Terrett v. Taylor, 9 Cranch. 43; Cooley’s Const. Tim. p. 166, note 1..
That this oath is against common right and common reason is manifest to every one.
There are two or three minor points upon which I am unable to unite with the majority of the court, but it is not necessary to note them.