Pequignot v. City of Detroit

• Decision Date: 21 May 1883
• Citation: 16 F. 211
• Parties: PEQUIGNOT v. CITY OF DETROIT.
• Court: U.S. District Court — Eastern District of Michigan

16 F. 211

PEQUIGNOT v. CITY OF DETROIT.

United States Circuit Court, E.D. Michigan.

May 21, 1883

John D Conely, for plaintiff.

Henry M. Duffield, City Counselor, for defendant.

BROWN J.

The first error assigned by the defendant is based upon the ruling of the court, that the walk, upon which the plaintiff met her fall, was a crosswalk and not a sidewalk, within the meaning of the state act of 1879, No. 244. This act, which is entitled 'An act for the collection of damages sustained by reason of defective public highways, streets, bridges crosswalks, and culverts,' creates a liability in favor of persons 'sustaining bodily injury upon any of the public highways or streets in this state, by reason of neglect to keep such public highways or streets, and all bridges, crosswalks, and culverts in good repair.'

We acquiesce in the opinion of the supreme court in City of Detroit v. Putnam, 45 Mich. 253, (S.C. 7 N.W. 815,) that this act does not include sidewalks. But we cannot perceive that this case has any bearing upon the question under consideration. We think the statute of 1879 was intended to distinguish between those portions of the streets which the city itself constructs and keeps in repair, and that other portion, viz., sidewalks, which it compels property-owners to build and keep in repair, rendering the city liable in one case and not in the other. Defendant's theory is that the alley begins at the outside of the sidewalk. But it seems quite clear that an alley, to be serviceable for the passage of teams, must begin at the curbstone, between the sidewalk and the street. Suppose, for instance, that the property-owners upon the opposite sides of an alley should extend fences across the intervening space. It is too plain for argument that they would be liable for obstructing the alley. Every crosswalk is, in one sense, a sidewalk, because it is an extension of the sidewalk proper across an intervening space; but it seems to us to make no difference whether it crosses a street or an alley. In each case it crosses a highway for the passage of teams, and is a part of the street which the city itself builds and keeps in repair.

The main question in this case, however, relates to the alienage of the plaintiff, upon which new affidavits were offered upon this motion. The court charged upon the trial that as the plaintiff was a native of France, it did not sufficiently appear that she had ever become a citizen of the United States. The new affidavits show unequivocally that she at one time did become a citizen by marriage, but the question still remains to be determined whether at the time she brought this suit she was an alien or a citizen. Plaintiff was born in France, of French parents, who emigrated to this country when she was six or seven years old, but were never naturalized. In 1863 she was married to James Partridge, who was a native-born American citizen, and thereby under the act of February 10, 1855, (reproduced in the Revised Statutes, Sec 1994,) became a citizen of the United States. She lived with Partridge some 13 or 14 years, and was then divorced from him. Shortly thereafter she was married to Augustine Pequignot, who was himself born in France in 1835, and has never become an American citizen, or even declared his intention to do so. The plaintiff is still living in this state with him as his wife.

The case raises a novel and interesting question: whether an alien woman, who has once become an American citizen by operation of law, can resume her alienage by marriage to an alien husband. If we are bound by the case of Shanks v. Dupont, 3 Pet. 242, in its literalisms, then the plaintiff did not lose her citizenship by marrying a native of her own country, an alien. In that case, it was held that a native of Charleston, who married a British officer in 1781, during a temporary and hostile occupation of the city by the British, and subsequently went to England with him and remained there until her death, did not by such marriage cease to be a citizen of South Carolina, but that her withdrawal to England, and her permanent allegiance to the side of the enemies of the state down to the time of the treaty of peace in 1783, operated as a virtual dissolution of her allegiance. On page 246, the court briefly observes that the marriage with the British officer did not produce that effect, because the marriage with an alien, whether a friend or an enemy, produces no dissolution of the native allegiance of the wife; giving as its reasons for this ruling: (1) That no persons can, by any act of their own, without the consent of the government, put off their allegiance and become aliens; (2) if it were otherwise, then a feme alien would by marriage become, ipso facto, a citizen, and would be dowable of the estate of her husband, which are clearly contrary to law.

Now, the general doctrine above stated, that no person can put off his allegiance without the consent of the government, is no longer the law in this country, since it is expressly declared by Rev. St. Sec. 1999--

'That the right of expatriation is a natural and inherent right of all people, indispensable to the enjoyment of the rights of life, liberty, and the pursuit of happiness; and whereas, in the recognition of this principle, this government has freely received emigrants from all nations, and invested them with the rights of citizenship; and whereas, it is claimed that such American citizens, with their descendants, are subjects of foreign states, owing allegiance to the government thereof; and whereas, it is necessary to the maintenance of public peace that this claim of foreign allegiance should be promptly and finally disavowed: therefore, any declaration, instruction, opinion, order, or decision of any officer of the United States which denies, restricts, impairs, or questions the right of expatriation, is declared inconsistent with the fundamental rules of the republic.'

The second reason, too, is no longer law, since, by the act of February 10, 1855, (Rev. St. Sec. 1994,) 'any woman who is now or may hereafter be married to a citizen of the United States, and who might herself be naturalized, shall be deemed a citizen. ' It seems to me, therefore, that we ought to apply the maxim 'cessante ratione, cessat lex' to this case, and are not bound to treat is as controlling authority. It seems to me, too, that we should regard the sections above quoted as announcing the views of congress upon this branch of international law, and ought to apply the same rule of decision to a case where a...