State v. Andriano
| Decision Date | 16 May 1887 |
| Citation | 4 S.W. 263,92 Mo. 70 |
| Parties | The State ex rel. Carey v. Andriano, Appellant |
| Court | Missouri Supreme Court |
Appeal from Buchanan Circuit Court. -- Hon. O. M. Spencer, Judge.
Reversed.
Ramey & Brown and Green & Burnes for appellant.
(1) The father of appellant having been duly naturalized in 1854, and his mother having been naturalized by the operation of section 2 of the act of congress approved February 10, 1855 (10 U.S. Stat. at Large, 604) and the appellant having been under the age of twenty-one years, and having then, and ever since, resided in the United States, he is a citizen of the United States, by virtue of the provisions of section 2172 page 382, of the Revised Statutes of the United States. (2) By the enactment of the section of the Revised Statutes above cited, all previous laws embracing the same subject were repealed, and from and after the date of its enactment that section was "in force in lieu thereof." R. S. U.S sec. 5596, p. 1091. (3) The section cited is the legislative declaration of the law on the first day of December, 1873. The acts from which it may have been taken ceased to exist as of that day, and the revision became the law in its stead. If the language of the revision, standing by itself, is plain the courts cannot look at the original statutes to see if congress has erred in the revision. This can only be done to construe doubtful language. United States v. Bowen, 100 U.S. 508; Victor v. Arthur, 104 U.S. 498; Arthur v. Dodge, 101 U.S. 34-36; United States v. Sixty-five Terra Cotta Vases, 18 F. 508. (4) But had the Revised Statutes never been enacted the appellant would still be a citizen of the United States by virtue of the provisions of section 4, of the act of April 14, 1802 (2 U.S. Stat. at Large, 154). That act applies as well to minors who came to the United States after its passage, as to those who resided here at that date. United States v. Kellar, 13 F. 82; West v. West, 8 Paige Ch. 433; State v. Penny, 10 Ark. 621; O'Connor v. State, 9 Fla. 215; North Noonday, M. C. v. Orient M. C., 6 Saw. 304; United States v. Hirschford, 13 Blatch. 330; Opinion Attorney General, 10 Opin. Att'y-Gen. 329; 2 Kent's Com. 51, 52. (5) As bearing upon the interpretation of the act of April 14, 1802, the appellant cites, Claflin v. Insurance Co., 110 U.S. 81; Thornley v. United States, 113 U.S. 310; McDonald v. Hovey, 110 U.S. 619; Ludlam v. Ludlam, 26 N.Y. 356; Vattel's Law of Nations, bk. I., ch. 19, sec. 215; Young v. Peck, 21 Wend. 388; Peck v. Young, 26 Wend. 613; 2 Am. Law Reg. [O. S.] 1934
B. J. Woodson, R. S. Musser, B. R. Vineyard and J. P. Grubb for respondent.
(1) The first clause of the fourth section of the act of congress of April 14, 1802 (2 U.S. Stat. at Large, 155), did not have the effect to naturalize appellant, without any act on his part, by the naturalization of his father. Campbell v. Gordon, 6 Cranch, 176; Vint v. Heirs of King, 2 Am. Law Reg. [O. S.] 712, 720; Peck v. Young, 26 Wend. 622-3-4; Young v. Peck, 21 Wend. 388. (2) By the revision of this clause, as carried into the Revised Statutes of the United States in section 2172, there was a slight change in the phraseology from the old law, but the sense and meaning remained the same, as construed in Campbell v. Gordon, supra. Neither a change of phraseology, nor the omission or the addition of words in a revised statute, will be held to work a change of the original statute, unless it clearly appears that such was the intention of the legislature. Taylor v. Delaney, 2 Caine's Cases, 151; Yeates Case, 4 Johns. 359; In re Brown, 21 Wend. 316; Conger v. Barker's Adm'r, 11 Ohio St. 13; Overfield v. Sutton, 1 Metc. [Ky.] 624; McDonald v. Hovey, 110 U.S. 618: Douglass v. Howland, 24 Wend. 47; Burnham v. Stephens, 33 Ala. 247; Ash v. Ash, 9 Ohio St, 387; Croswell v. Crane, 7 Barb. 191; Ennis v. Crump, 6 Tex. 34; Hughes v. Farrar, 45 Me. 72; Goodell v. Jackson, 20 Johns. 722; 17 Mo.App. 115, 116; Theriat v. Hart, 2 Hill, 380; Mooers v. Bunker, 29 N.H. 421; Wright v. Oakley, 5 Metc. [46 Mass.] 406, 407. (3) Congress, in revising the statutes, must be presumed to have known the judicial construction which had been placed on this clause of the act of 1802, by the Supreme Court of the United States; and the bringing it into the revision, in substantially the same form as in the original act, was a legislative adoption of its known judicial construction. Durasmus v. Harrison, 26 Ala. 326; McDonald v. Hovey, 110 U.S. 628, 629. (4) A statute adopted into a revision in the language of, or in language having the same meaning as the original statute, will not be construed as a new enactment, but as a continuance of the original law. State ex rel. v. Heidorn, 74 Mo. 411; City of Cape Girardeau v. Riley, 52 Mo. 424; St. Louis v. Alexander, 23 Mo. 309. (5) And such a statute in the revision speaks not from the date of the revision, but from the date of the taking effect of the original act. Bishop v. Schneider, 46 Mo. 472; City of St. Louis v. Alexander, 23 Mo. 509; 20 W.Va. 132. (6) And this is so, where, in the revision, as in section 5596 of the Revised Statutes of the United States, the prior statutes embodied therein are repealed simultaneously with the taking effect of the revised laws. Wright v. Oakley, 5 Metc. [46 Mass]. 406; Fullerton v. Spring, 3 Wis. 667; Cramer v. City of Milwaukee, 18 Wis. 257; Hurly v. Town of Texas, 20 Wis. 634; Laude v. Railroad, 33 Wis. 640; Glentz v. The State, 38 Wis. 549, 554; Schettels v. Tabert, 46 Wis. 446; 24 Wall. 458, 459. (7) Section 5597 of the Revised Statutes of the United States preserves unimpaired all the rights existing at the date of the taking effect of the revision, which had accrued under the original statutes; among these were the rights of citizenship and alienage, which were not intended to be affected. The national status of the individual, being a personal right, congress did not intend or attempt to change it without consulting the individual. "It will not be inferred that the legislature, in revising and consolidating the laws, intended to change their policy, unless such intention be clearly expressed." United States v. Ryder, 110 U.S. 740 at top; McDonald v. Hovey, 110 U.S. 628.
This is a proceeding by quo warranto, instituted in the circuit court of Buchanan county, challenging the right of defendant, Andriano, to exercise the functions, and perform the duties, of sheriff of Buchanan county. The circuit court sustained the challenge, and rendered its judgment of ouster, on the sole ground that defendant was not and never had been a citizen of the United States, and was, therefore, under our constitution, disqualified from holding the office of sheriff. Fromhis judgment defendant appealed.
The record before us discloses the following undisputed facts, viz: that at the general election held in Buchanan county in 1886, defendant was, by a majority of votes cast at said election, elected sheriff of said county; that he was duly commissioned, gave the required statutory bond, took the requisite oath of office, and on the 23d of November, 1886, entered upon the discharge of the duties of the office. It further appears that defendant was born in the foreign country of Baden in the year 1841, while his parents were citizens of, and residing in, that country; that in 1849 his parents removed to the United States, bringing with them defendant, then an infant about eight years old, and that they resided in said Buchanan county from that time till their respective deaths, which did not occur till long after 1855; that the father of defendant was duly naturalized in 1854 in the circuit court of Buchanan county, and that defendant has also resided in said county ever since 1849.
Defendant's claim to citizenship is based on the facts above stated, and the question as to whether or not it is well founded is to be determined by a construction of the fourth section of an act of congress approved on the fourteenth of April, 1802, entitled "An act to establish an uniform rule of naturalization," etc. 2 U.S. Statutes 154. So much of said section as has a bearing on the question before us is as follows:
Considering this section with reference to its grammatical construction, and in connection with the fact that it is incorporated in an act providing an uniform rule for the naturalization of such aliens, as might thereafter desire to be naturalized as therein provided, and in connection with the previous legislation of congress on the subject, we have no hesitation in saying that it was intended to be prospective in its operation as to all aliens who might become naturalized under the provisions of the act of 1802, of which said section four is a part, together with all the incidents flowing from such naturalization to the children of aliens so naturalized, as set forth in said section, and that, giving to it such operation, the defendant, under the undisputed facts in the case, became a citizen of the United States, and was, therefore, under the constitution of this state, eligible to the office of sheriff at the time of his election.
The precise question under consideration has been adjudicated and passed upon by the highest courts of several of the...
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