State, ex rel. Thayer v. Boyd

• Decision Date: 05 May 1891
• Citation: 48 N.W. 739,51 N.W. 602,31 Neb. 682
• Parties: STATE, EX REL. JOHN M. THAYER, v. JAMES E. BOYD
• Court: Nebraska Supreme Court

48 N.W. 739

51 N.W. 602, 31 Neb. 682

STATE, EX REL. JOHN M. THAYER, v. JAMES E. BOYD

Supreme Court of Nebraska

May 5, 1891

ORIGINAL proceeding in nature of quo warranto.

Demurrer sustained. Judgment of ouster entered against the respondent.

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

The naturalization of Joseph Boyd, the father, in 1890 did not make respondent a citizen. (Dryden v. Swinburne, 20 W.Va. 89; State v. Adriano, 92 Mo. 70; Gumm v Hubbard, 97 Id., 311; State v. Penney, 10 Ark. 621; O'Connor v. State, 9 Fla. 234; U. S. v. Keller, 13 F. 82; Heney v. Brooklyn, etc., Soc., 39 N.Y. 333, 335-6.) He could not become a citizen by relation. (In re Robert Desty, 8 Abb. New Cases [N. Y.], 250; Dryden v. Swinburne, and Heney v. Brooklyn, etc., Soc., supra.) Respondent being ineligible, the election was void and no successor to John M. Thayer was elected. (Dryden v. Swinburne, supra; Gulick v. New, 14 Ind. 93-102; State v. Swearingen, 12 Ga. 23; State v. Giles, 1 Chand., 112; State v. Smith, 14 Wis. 497; Saunders v. Haynes, 13 Cal. 145; State v. Gastinel, 20 La. Ann. 114; McCrary, Elections, secs. 231-37; Case of Albert Gallatin, Cong. Globe, 2d Sess. 30th Cong., Appendix, 334; Case of General Shields, Id., 332; In re Corliss, 11 R. I., 638; State v. Clark, 3 Nev., 566; State v. Sullivan, 47 N. W. Rep., 802; Saunders v. Haynes, supra; "Eligible," 2 Cent. Dic.) For it cannot be said that the person voted for was elected and qualified, unless he had the legal requisites to qualify. (Com. v. Hanley, 9 Pa. 513; State v. Jenkins, 43 Mo. 261; State v. Robinson, 1 Kan. 25; State v. Benedict, 15 Minn. 153; Saunders v. Haynes, supra.) Unless the pre-requisites of an election have been complied with, the lieutenant governor is not entitled to assume the office of governor, but John M. Thayer holds over. (Goff v. Wilson, 32 W.Va. 393; Carr v. Wilson, Id., 419; Ex parte Lawhorne, 18 Gratt. [Va.], 93; State v. Lusk, 18 Mo. 334; State v. Sullivan, supra; People v. Bissell, 49 Cal. 407; People v. Osborne, 7 Col., 605; Tappan v. Gray, 9 Paige [N. Y.], 511; People v. Van Horne, 18 Wend. [N. Y.], 518; State v. Gray, 23 Neb. 370; Saunders v. Haynes, supra.) Sec. 1, art. V., of the constitution, providing that in case of non-election the incumbent shall hold over, is self-operating. (Cooley, Const. Lim. [5th Ed.], 78.) Respondent cannot defend his possession on the ground that he is de facto governor; he must show a rightful title. (Kimball v. Alcorn, 45 Miss. 158; Matthews v. Supervisors, 53 Id., 715; People v. Weber, 89 Ill. 348; People v. Weber, 86 Id., 284; Miller v. Callaway, 32 Ark. 666; Grace v. Teague, 18 A. 289; Morgan v. Vance, 4 Bush [Ky.], 329; Patterson v. Miller, 2 Metc. [Ky.], 496; Pearce v. Hawkins, 2 Swan. [Tenn.], 88; Boardman v. Halliday, 10 Paige [N. Y.], 231; People v. R. Co., 1 Lans. [N. Y.], 344; Conover's Case, 5 Abb. Pr. [N. Y.], 73.) Voting and holding offices as alleged in the answer, did not make respondent a citizen. (Dryden v. Swinburne, supra; Lanz v. Randall, 4 Dill., [U. S.], 425; Maloy v. Duden, 25 F. 673.) Relator is not required to qualify anew until this proceeding has determined that respondent is ineligible. (Code, sec. 711; People v. McCallum, 1 Neb. 182; People v. Mayworm, 5 Mich. 146; State v. Griffey, 5 Neb. 161, 173; State v. Dahl, 65 Wis. 510; Meloney v. Whitman, 10 Cal. 38, 46-7; Jeter v. State, 1 McCord [S. Car.], 233; State v. Lylies, Id., 238; State v. Peck, 30 La. Ann. 280, pt. 1.) Respondent cannot claim citizenship by virtue of the treaty of 1803; art. 3 thereof referred only to existing inhabitants of the territory ceded. (State v. Primrose, 3 Ala. 546.) The language of sec. 5 of the enabling act, "on an equal footing with the original states," had no reference to rights, privileges, or immunities of individuals; it could not, therefore, affect citizenship. What status of the inhabitants was fixed by the enabling act? Why citizenship rather than the voting privilege? The reason for declaring the inhabitants of the original thirteen states to be citizens, arose from the necessities of the new government. (Minor v. Happersett, 21 Wall. [U. S.], 166.) Collective naturalization has been effected by treaty (Morse, Citizenship, sec. 94); but there is no record of an adjudication that the admission into the union of a territory would naturalize its alien inhabitants. This distinction between cession and admission was the basis of the holding in State v. Primrose, 3 Ala. 546, which overrules U. S. v. Laverty and U. S. v. Debois, cited by respondent, and shows that the admission of Alabama did not make citizens of all its inhabitants. The averment in the answer, upon information and belief, that Joseph Boyd, the father, became naturalized before 1854, is demurrable because the record is not pleaded; (Tessier v. Englehart, 18 Neb. 173; Brady v. Murphy, 19 Ind. 258; Reasor v. Raney, 14 Id., 441; State v. Pierce, 22 Id., 116; Duyckinck v. Clinton, Ins. Co., 23 N.J.L. 279; Crone v. Dawson, 19 Mo. App., 214; Bish v. Stansbury, 59 Md. 382, and cases; Maxwell, Pl. & Pr. [4th Ed.], pp. 252, 401; 1 Chitty, Pleading [16th Am. Ed.], pp. 385, 570; Morse, Citizenship, sec. 87, and cases; State v. Webster, 7 Neb. 469), and does not raise an issue upon which proof can be taken. (Dryden v. Swinburne, 20 W.Va. 89; In re Desty, 8 Abb. New Cas., 250.) This court has jurisdiction in the case, by quo warranto; the matter need not be referred to the legislature. (Atty. Gen. v. Barstow, 4 Wis. 750; Kane v. People, 4 Neb. 509; Const., sec. 2, art. 6; High, Ex. Rem., 615, 634, 642; State v. Messmore, 14 Wis. 115.)

John D. Howe, John C. Cowin, and J. C. Crawford, contra:

Thayer is not a competent relator. If respondent holds office illegally, it is a public wrong and must be redressed by public authority, the attorney general alone having the right to bring the action. (Com. v. Cluley, 56 Pa. 270; State v. Stein, 13 Neb. 529; State v Cones, 15 Id., 444; State v. Hamilton, 29 Id., 198; State v. Frazier, 28 Id. 438.) Possession is nine points in law; relator must show the tenth point before he will be entitled to the office. (State v. McMillen, 23 Neb. 385.) As respondent is in possession, the burden is on relator to show irregularity in the election. (State v. Hunton, 28 Vt. 594; State v. Boal, 46 Mo. 528; Barnum v. Gilman, 27 Minn. 466; High, Ex. Rem., secs. 652, 667, 700; State v. Durkee, 12 Kan. 308; People v. Draper, 24 Barb. [N. Y.], 265; Hartt v. Harvey, 32 Id., 55; Cochran v. McCleary, 22 Iowa 75; Markle v. Wright, 13 Ind. 548; Updegraff v. Crans, 47 Pa. 103; Hilliard, Injunctions, 446-9.) Sec. 7, ch. 10, Comp. Stats., requires an officer holding over to qualify anew "within ten days;" this, relator failed to do, and if he had any right to the office, he has thus abandoned it. (County of Wapello v. Bigham, 10 Iowa 39; Scott v. Ring, 39 Minn. 398; State v. Goetz, 22 Wis. 363; State v. Matheny, 7 Kan. 327; State v. Johnson, 26 Ark. 281.) Quo warranto is not the proper remedy; the jurisdiction of the legislature is exclusive. (State v. Baxter, 28 Ark. 129; Baxter v. Brooks, 29 Id., 174; Goff v. Wilson, 32 W.Va. 393; State v. Marlow, 15 Ohio St. 114; Royce v. Goodwin, 22 Mich. 496; State v. Harmon, 31 Ohio St. 260; Hipp v. Charlevoix, 62 Mich. 456; 2 Internat'l Rev., 74, art. by Judge Cooley; Grier v. Shackleford, 2 Const. [S. Car.], 646; Newcum v. Kirtley, 13 B. Mon. [Ky.], 517; Smith v. Myers, 9 N.E. [Ind.], 692; Com. v. Leech, 44 Pa. 332; Collin v. Knoblock, 25 La. Ann. 263; Rogers v. Johns, 42 Tex. 340; Williamson v. Lane, 52 Id., 346.) Ineligibility to election is not the same as ineligibility to office. (Allen v. Robinson, 17 Minn. 90.) One who has taken out his first papers, and the children of such a person, are termed "citizens." (Settegast v. Schrimp, 35 Tex. 323; 28 Id., 96; In re Wehlitz, 16 Wis. 468; Koszta's Case, Ex. Docs., 33d Cong., 1st Sess., p. 25; Levy's Case, Cont. El., 1834-65, 38th Cong., 2d Sess.) The demurrer admits the most meritorious and equitable title to citizenship. Respondent, while under age, took the status of his father. (Shanks v. Dupont, 3 Pet. [U. S.], 242.) When he came to Nebraska his status was that of one who had taken out his first papers; surely the act of admission consummated all necessary title to citizenship; surely, if either son or father had taken out second papers within five years, the doctrine of relation would have applied. That a longer period elapsed does not affect the principle. For illustrations of the doctrine of relation, see Johnson v. Ballou, 28 Mich. 337; Landes v. Brant, 10 HOW [U.S.], 371; note to 15 Am. Dec., 246. Over forty years ago, respondent put off allegiance to Great Britain and assumed allegiance to the United States. His intention is beyond question. During all this time has he been a man without a country? Would Great Britain have given him the protection of her flag? (Osterman v. Baldwin, 6 Wall. [U.S.], 122; Jackson v. Beach, 1 Johns. Cas. [N. Y.], 339; Jackson v. Ramsay, 3 Cow. [N. Y.], 75.) The oath confers citizenship; an order of court is not necessary (Campbell v. Gordon, 6 Cranch [U. S.], 176); nor need it appear of record that all requirements have been complied with. (Stark v. Chesapeake Ins. Co., 7 Id., 420.) Citizenship may be presumed in certain cases. (Blight v. Rochester, 7 Wheat. [U. S.], 535; Shelton v. Tiffin, 6 HOW [U. S.], 163.) That mode of acquiring citizenship which the naturalization act provides, is not exclusive. Citizenship may be acquired also by treaty, by annexation, by the admission of new states, and by the force of enabling acts, and acts of admission. The act admitting Nebraska provides that the state shall come into the Union "upon an equal footing with the original states in all respects whatsoever." ...