State ex rel. Thayer v. Boyd

• Decision Date: 05 May 1891
• Citation: 31 Neb. 682,48 N.W. 739
• Parties: STATE EX REL. THAYER v. BOYD.
• Court: Nebraska Supreme Court

31 Neb. 682

48 N.W. 739

STATE EX REL. THAYER

v.BOYD.

Supreme Court of Nebraska.

May 5, 1891.

Syllabus by the Court.

1. The supreme court has jurisdiction to entertain proceedings by information in the nature of quo warranto, instituted for the purpose of determining the rights of persons claiming the office of governor.

2. Under the provisions of section 2, art. 5, of the constitution, no person is eligible to the office of governor who has not been a citizen of the United States and of this state for at least two years next preceeding the election at which such officer is to be chosen.

3. Where a plurality of votes are cast for a person for a public office who is ineligible the election is void.

4. Under the fourth section of the act of congress, entitled “An act to establish an uniform rule of naturalization,” approved April 14, 1802, the child of an alien, under 21 years of age, although born in a foreign country, becomes a citizen by the naturalization of his parents, if dwelling within the United States at the time the parent is admitted to citizenship; but it does not have that effect if he is over 21 years old at the time the parent is naturalized.

5. The order of a court admitting an alien to citizenship is a judicial act in the nature of a judgment, and can be proved only by the record.

6. The fact that an alien has for many years voted at elections held in this state, and filled important public offices, does not establish that he is a citizen of the United States.

7. Where an alien is naturalized under the naturalization laws, his citizenship dates from the time the order of the court is made admitting him to citizenship.

8. The alien inhabitants of the territory of Nebraska at the time of its admission as a state did not become citizens of the United States by virtue of the acts of congress admitting the state into the Union.

9. The words, “citizen of the United States,” as used in section 2, art. 5, of the state constitution, construed to mean a person who is an American citizen by birth, or a person of foreign birth who has been duly naturalized under the provisions of the uniform rule of naturalization established by congress.

10. Under section 1, art. 5, of the constitution, a person elected to the office of governor is entitled to discharge the duties and receive the emoluments of the office for the term of two years from the first Thursday after the first Tuesday in January following his election, and until a successor is duly elected and qualified.

11. Where the person receiving the highest number of votes for the office of governor is ineligible, under the constitution, to be elected, the governor holds over.

12. The duties of the chief executive office of the state devolve upon the lieutenant governor in certain contingencies, among which are the failure of the governor-elect to qualify and disability of the governor. It cannot be said that there has been a failure to qualify where no person has been constitutionally elected to the office.

13. The words “other disabilities of the governor,” appearing in section 16, art. 5, of the constitution, have no reference to the ineligibility of the person to be elected, but cover any disability of the governor, not specifically enumerated in the section, occurring after the commencement of his term of office.

14. Held, that when the non-election of a person to a public office is ascertained by proceedings in quo warranto, the person entitled to hold over must then requalify.

Quo warranto.

MAXWELL, J., dissenting.

For dissenting opinion, sww 51 N.W. 602.

John L. Webster, O. P. Mason, and J. H. Blair, for relator.

John D. Howe, John C. Cowin, and J. C. Crawford, for respondent.

NORVAL, J.

This is action of quo warranto, brought in this court by John M. Thayer in his own behalf, the attorney general having refused to prosecute the same, to establish the relator's right to the office of governor of this state, and to oust the respondent therefrom. The information 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 he 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 returns of said election 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 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 said office and perform the duties of governor of Nebraska, and will continue so to do unless ousted 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 E. 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. [Here follows a copy of the journal entry from the records of said common pleas court, showing such declaration of intention.]

(8) And relator further gives the court to understand and be informed that the said Joseph Boyd, father of aforesaid 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 common pleas court, held within and for the county of Muskingum, 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...