Boyd v. State of Nebraska Thayer

• Citation: 12 S.Ct. 375,36 L.Ed. 103,143 U.S. 135
• Parties: BOYD v. STATE OF NEBRASKA ex rel. THAYER
• Decision Date: 01 February 1892
• Court: U.S. Supreme Court

143 U.S. 135

12 S.Ct. 375

36 L.Ed. 103

BOYD v. STATE OF NEBRASKA ex rel. THAYER.

February 1, 1892.

[Syllabus from pages 135-137 intentionally omitted] On the 13th of January, A. D. 1891. leave was granted to John M. Thayer, by the supreme court of the state of Nebraska, to file an information against James E. Boyd to establish the relator's right to the office of governor of that state, and to oust the respondent therefrom.

It appears from the record that the attorney general of the state refused to prosecute the action, and this is so stated in the information, which then alleges:

'(1) On the Tuesday next succeeding the first Monday of November of the year 1888, he, the said John M. Thayer, was, and for more than two years next preceding that time had been, a citizen of the United States and of this state, and then had, and now has, all the qualifications required by law to hold the office of governor of the state of Nebraska.

'(2) At the general election of this state, at the date aforesaid for the election of governor and all state officers in accordance with the provision of the constitution and laws of this state, he was duly elected governor; that he duly qualified and entered upon the duties of said office on the first Thursday after the first Tuesday in January, 1889, and ever since then has exercised, and now exercises, the duties of said office.

'(3) That his said election and oath of office as governor made it his duty to hold his office for the term of two years from the first Thursday after the first Tuesday in the January next after his election, and until his successor should be elected and qualified.

'(4) That there was held another general election of this state on the Tuesday next succeeding the first Monday of November in the year 1890 for the election of governor and other officers, and the returus of said alection for the officers of the executive department were, as required by the constitution, sealed up and transmitted by the returning officers to the secretary of state, directed to the speaker of the house of representatives, who did, on the 8th day of January, 1891, immediately after the organization of the house, and before proceeding to other business, open and publish the same in the presence of a majority of each house of the legislature, who were for that purpose assembled in the hall of the house of representatives.

'(5) That said returns, so sealed up, transmitted, opened, and published, showed that the whole number of votes cast at said general election for the several persons voted for for the office of governor aggregated 214,090; that of said number of votes so cast for governor James E. Boyd received 71,331, J. H. Powers received 70,187, L. D. Richards received 68,878, and there were scattering 3,694; and James E. Boyd, being the person having the highest number of votes for the office of governor, was by said speaker declared duly elected governor for the term of two years from the first Thursday after the first Tuesday of January, 1891, and until his successor should be elected and qualified; and relator exhibits herewith, and makes a part hereof, a duly certified and authenticated copy of said returns.

'(6) That thereupon the said James E. Boyd took the oath of office required to be taken by the executive officers before they enter upon their official duties, and has usurped and invaded the office of governor of Nebraska, and has unlawfully attempted, and now unlawfully attempts, to hold the said office and perform the duties of governor of Nebraska, and will continue so to do, unless ousted therefrom by the judgment of this honorable court.

'(7) But the relator further gives the court to understand and be informed that the said James E. Boyd was not at the time of his said pretended election, on the said Tuesday next succeeding the first Monday of November, 1890, a citizen of the United States; and because he was not, as aforesaid, then a citizen of the United States, he was not then eligible to the office of governor of this state, and as yet no person eligible thereto has been elected and qualified to succeed your informant, and it is the bounden duty of the relator to hold and continue in the office of governor until some person eligible thereto shall be elected and qualified as his successor; that in truth and in fact the said James E. Boyd was born in Ireland, of alien parents, in about the year 1834; that he was brought to this country, when about ten years of age, by his father, whose name was and is Joseph Boyd, who settled in about the year 1844 at Zanesville, Muskingum county, in the state of Ohio, where he has ever since resided, and now resides; that the said Joseph Boyd, father of the said James Boyd, has never, since he came to this country and settled at Zanesville, Ohio, resided at any other place.

'That on the 5th day of March, 1849, at, in, and during the February (1849) term of the common pleas court of said Muskingum county, in the state of Ohio, the said Joseph Boyd, a native of Ireland, and father, as aforesaid, of the said James E. Boyd, and when the said James E. Boyd was about fifteen years of age, in open court declared it to be his bona fide intention to become a citizen of the United States, and to renounce and abjure forever all allegiance and fidelity to every foreign prince, potentate, state, or sovereignty whatsoever, and particularly the queen of Great Britain and Ireland; and the following is a true and full copy of the journal entry from the records of the said common pleas court of the said Muskingum county, Ohio, showing such declaration of intention, to-wit:

[Here follows the entry referred to.]

'And your informant has and exhibits to the court a duly-certified transcript of the said record entry as found on page 187 of said journal, vol. 'T.'

'(8) And relator further gives the court to understand and be informed that the said Joseph Boyd, father aforesaid of said James E. Boyd, never, while the said James E. Boyd was under the age of twenty-one years, applied to be admitted to become a citizen of the United States, and was never naturalized, and never did become a citizen of the United States while the said James E. Boyd was under the age of twenty-one years. That at, in, and during the October (1890) term of the said common pleas court held within and for the county of Muskingum, in the state of Ohio, and never before and not until after the said James E. Boyd was upwards of twenty-one years of age, and not until he was of the age of fifty-six years, the said Joseph Boyd, father of the said James E. Boyd, a native of Ireland, and up to that time and then a subject of the queen of Great Britain and Ireland, appeared in open court, and made application to be admitted to become a citizen of the United States, and proved to the satisfaction of the court that he declared his in tention to become a citizen of the United States on the 5th day of March, 1849, before the court or common pleas of Muskingum county, Ohio, and also produced his cer tificate of such declaration of intention, and that he had resided within the limits of the United States five years then last past, and for one year at least then last past within the state of Ohio, and that during that time he had behaved as a man of good moral character, attached to the principles of the constitution of the United States, and well disposed to the good order and happiness of the same; and thereupon the said Joseph Boyd made solemn oath that he would support the constitution of the United States, and that he did absolutely and entirely renounce and abjure all allegiance and fidelity to every foreign prince, potentate, state, or sovereignty, and particularly to Great Britain and Ireland and the queen of England, whose subject he then was; and, the court being then satisfied that the said Joseph Boyd had complied with the laws of the United States relating to the naturalization of aliens, it was ordered that he be, and he then was, admitted to become a citizen of the United States, and a certificate was then issued to him; and before that time he had never been and was not a citizen of the United States; and the following is a copy of the journal entry from the records of the common pleas court of said Muskingum county, Ohio, showing such application of the said Joseph Boyd to be admitted to become a citizen and his admission to citizenship of the United States, to-wit:

[Here follows the record referred to.]

'And the relator has and exhibits to the court a duly-certified transcript of the said record entry as found on page 145 of said journal, volume 42.

'(9) And the relator further shows that careful and diligent search has been made by the clerk of the court of common pleas of said Muskingum county, Ohio, through all the records of his said office, and that the only record or journal entry in any shape or form in said court and in the records thereof of or concerning the declaration of intention to become and application of the said Joseph Boyd to be admitted a citizen of the United States in said office is found upon page 187 of Journal 'T' and upon page 145 of Journal 42, and the only record or journal entries in said office of the naturalization of said Joseph Boyd is found upon said page 145 of said Journal No. 42, and that said two entries constitute the only and entire record of the naturalization of said Joseph Boyd, as shown by the records and journals of said court; and the relator exhibits and shows to the court the certificate of the clerk of said court, duly signed and made under oath, showing such facts.

'(10) And the relator further shows that the said James E. Boyd has never at any time declared his intention to become a citizen of the United States, nor has he ever made application to be admitted as a citizen of the United States, but he has ever remained an alien and a subject to the queen of Great Britain and Ireland.

'And relator...