Dorsey v. Brigham

• Decision Date: 21 December 1898
• Citation: 52 N.E. 303,177 Ill. 250
• Parties: DORSEY v. BRIGHAM et al.
• Court: Illinois Supreme Court

177 Ill. 250

52 N.E. 303

DORSEY

v.BRIGHAM et al.

Supreme Court of Illinois.

Dec. 21, 1898.

Appeal from Livingston county court; C. M. Brickman, Judge.

Petition by John Dorsey to contest the election of O. H. Brigham and another as members of a board of education in Livingston county. From an order dismissing the petition, said Dorsey appeals. Reversed.N. J. Pillsbury and Ray Blasdel, for appellant.

C. C. & L. F. Strawn, for appellees.

BOGGS, J.

The appellant and one S. S. Hitch were candidates upon one ticket for members of the board of education at an election held on the 17th day of April, 1897, in school district No. 1, township 26, range 8 E., in Livington county, and the appellees were candidates for the same offices upon another ticket. Two members of the board were to be elected. The judges of the election declaredsaid S. S. Hitch duly elected to one of the said offices, and that the other candidates had each received an equal number of votes. In some manner, not clearly disclosed and not necessary to be known, the judges cast off the tie, and declared appellee Brigham elected by lot. This is a petition filed by the appellant, Dorsey, to contest the election of said Brigham and to establish that appellant was duly elected.

By agreement of the parties, the ballots were counted in the presence and under the supervision of the court, and the result was that 260 ballots were found for the appellant and 258 each for Brigham and Stanford. On application of the appellees, verification of the count was allowed, the result being 260 votes for appellant, 259 for Standford, and 257 for Brigham. The court overruled the motion of appellant for final judgment declaring him to be the duly-elected member of the board of education, and, on motion of the appellees, ordered the recount and verification to be stricken from the record, and appellant saved exceptions. The petition and the answer thereto challenged the legal right of a number of voters to cast ballots at said election. A hearing before the court resulted in an order that the petition of appellant be dismissed. This is an appeal to obtain a reversal of such order.

A number of ballots were cast at the election by women who were foreign born and had not been naturalized by judicial decree or the judgment of any court. Certain of these female voters were the wives, others the widows, of husbands who were also foreign born, but who were shown, by certificates of naturalization introduced in evidence, to have been admitted to citizenship by the order or judgment of competent courts. Others of such female voters were the wives, others the widows, of foreign-born husbands, who, it was insisted, had been naturalized by judicial proceeding, but in whose cases neither certificates of such naturalization nor other record proof thereof was produced; and still others of such female voters were the wives or widows of native-born husbands; and still others of such female voters claimed citizenship through the naturalization of their fathers or the fathers of their husbands. In some cases the female voters were married to their husbands in foreign countries, and in the cases of other the ceremony of marriage was celebrated in the United States. But in all of the cases the relation of husband and wife existed and was maintained in the United States. Whether these women were lawfully entitled to vote at said election arises first for decision.

Paragraph 342, c. 46, p. 1741, Starr & C. Ann. St. 1896, is as follows: ‘Any woman of the age of twenty-one years and upwards belonging to either of the classes mentioned in article 7 of the constitution of the state of Illinois, who shall have resided in this state one year, in the county ninety days and in the election district thirty days preceding any election held for the purpose of choosing any officer of schools under the general or special school laws of this state, shall be entitled to vote at such election in the school district of which she shall at the time have been for thirty days a resident: provided, any woman so desirous of voting at such election shall have been registered in the same manner as is provided for the registration of male voters.’

One of the classes of persons, the members whereof section 1 of said article 7 of the constitution of 1870 clothed with the right to exercise the elective franchise, comprised ‘every male citizen of the United States above the age of twenty-one years.’ In People v. English, 139 Ill. 622, 29 N. E. 678, and again in Plummer v. Yost, 144 Ill. 68, 33 N. E. 191, we held that the true construction to be put upon the statute above set out, authorizing women to vote at any elections where ‘any officer of schools' is to be chosen, is that the qualification of sex prescribed in said section 1 of article 7 of the constitution was not intended to be adopted, and in the latter of these cases we held a woman could not be denied the right to vote at such school elections on the ground that the constitutional qualification of sex was lacking. The qualification of citizenship is, however, necessary under the said section and article of the constitution. If these women possessed the qualifications of age and residence required by the said paragraph 342 of chapter 46, authorizing women to vote at school elections, and were citizens of the United States, they were lawful voters at the school election in question.

Section 1994, tit. 25, entitled ‘Citizenship,’ of the Revised Statutes of the United States, is as follows: ‘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.’ Under the naturalization act in force when the foregoing section was enacted, and ‘free white person’ not an alien enemy might lawfully be naturalized. The term, ‘who might herself be lawfully naturalized,’ incorporated in said section 1994 above recited, therefore only limited the application of the law to free white women not alien enemies. Kelly v. Owen, 7 Wall. 496. An alien enemy is one who owes allegiance to an adverse belligerent nation. None of these women were of such nationality, but all were friendly aliens. In Minor v. Happerset, 21 Wall. 162, it was declared that ‘from the commencement of the legislation upon this subject [naturalization] alien free white women and alien minors could be made citizens by naturalization.’

The proper construction of said section 1994 of the Revised Statutes of the United States is that every woman, who might be lawfully naturalized by a judicial tribunal, who lives in a state of marriage with a husband who is a citizen, becomes herself a citizen by force of the existence of the marriage relation. In Kelly v. Owen, supra, it was said: ‘Whenever a woman who under previous acts might be naturalized is in a state of marriage to a citizen, whether his citizenship existed prior to the act or subsequently,or before or after the marriage, she becomes by that fact a citizen also.’ It therefore would seem clear that each woman voter in question who sustained the relation of wife to a citizen of the United States became also a citizen of the United States.

Counsel for appellees, however, urge that the act of congress conferring citizenship upon a foreign-born woman because of the existence of the marriage relation with a citizen is in contravention of section 8 of article 1 of the constitution of the United States. This section confers upon congress the power to enact legislation whereby aliens may become citizens, and is as follows: Congress shall have power ‘to establish an uniform rule of naturalization and uniform laws upon the subject of bankruptcies throughout the United States.’ The argument of counsel is that the lawmaking power of the United States, having adopted a rule or statute providing for the naturalization of aliens, both male and female, by proceedings in a judicial tribunal, could not, without violating the rule of uniformity prescribed by the constitution, enact another statute by the terms whereof certain alien women might become clothed with the rights of citizenship without complying with the provisions prescribed by the statute authorizing naturalization through the medium of the courts. The purpose of granting to the congress of the United States the power of enacting a law or rule for the naturalization of aliens was to deprive the several states of that power, and the reason was that, if the power remained with the different states, the terms and conditions of citizenship would depend upon the will and pleasure of each of the states, and might be widely and materially different. The requirement of the constitution that congress should enact a uniform rule of naturalization is properly construed to mean that the mode or manner of naturalization prescribed by congress should have uniform operation in all the states. Aside from this, the enactment in question has uniform operation as to all alien women who sustain the relation of wife to a citizen, and its benefits and privileges extend equally and uniformly to all such alien women within the relation and circumstances for which it provides. It operates upon a general class of persons, and extends to all of that class who are in the same situation or circumstances. It is therefore a uniform rule or enactment, even if a proper construction of the said fourth paragraph of section 8 of article 1 of the constitution of the United States requires that character of uniformity contended for by appellees. Lippman v. People, 175 Ill. 101, 51 N. E. 872.

Counsel urge the object of the act conferring citizenship upon a married woman, the wife of a citizen, is to confer civil rights only, not political rights. This position is correct. Naturalization by judicial proceeding, or otherwise, under the provisions of any of the acts of congress, whether the person naturalized be male or female, confers only civil...