Boyd v. Nebraska ex Rel. Thayer
143 U.S. 135 (1892)

Annotate this Case

U.S. Supreme Court

Boyd v. Nebraska ex Rel. Thayer, 143 U.S. 135 (1892)

Boyd v. Nebraska ex Rel. Thayer

No. 1208

Argued December 8, 1891

Decided February 1, 1892

143 U.S. 135

Syllabus

Boyd was born in Ireland in 1834, of Irish parents. His father emigrated to the United States in 1844 with all his family and settled in Ohio, in which state he has since resided continuously. In 1849, the father duly declared his intention to become a citizen of the United States, but there is no record or other written evidence that he ever completed his naturalization by taking out his naturalization certificate after the expiration of the five years. For many years after the expiration of that time, however, he exercised rights and claimed privileges in Ohio, which could only be claimed and exercised by citizens of the United States and of the state. The son, on attaining majority, voted in Ohio under the belief that his father had become a citizen. In 1856, he removed to Nebraska, in which state he resided continuously until the commencement of this action. He voted there at all elections, held various offices there which required him to take an oath to support the Constitution of the United States, served in the army during the war, was a member of a convention to frame a state constitution, was Mayor of Omaha and, after thirty years of unquestioned exercise of such rights and privileges, was elected Governor of the State of Nebraska, receiving a greater number of votes than any other person voted for. He took the oath of office and entered on the discharge of its duties. His predecessor, as relator, filed an information in the

Page 143 U. S. 136

Supreme Court of Nebraska in which were set forth the facts as to the declaration of intention by Boyd's father, and it was further averred that the father did not become a citizen during the son's minority, nor until the October term of the Court of Common Pleas in Muskingum County, Ohio, in the year 1890, when the son was 56 years of age, and it was claimed that Boyd, the son, never having himself been naturalized, was not at the time of his election a citizen of the United States, and was not, under the Constitution and laws of Nebraska, eligible to the office of governor of that state, and the relator therefore prayed judgment that Boyd be ousted from that office, and that the relator be declared entitled to it until a successor could be elected. To this information the respondent, in his answer, after stating that his father, on March 5, 1849, when the respondent was about fourteen years of age, made before a court of the State of Ohio his declaration of intention to become a citizen of the United States, and averring

"that his father for forty-two years last past has enjoyed and exercised all of the rights, immunities and privileges and discharged all the duties of a citizen of the United States and of the State of Ohio, and was in all respects and to all intents and purposes a citizen of the United States and of the State of Ohio,"

and particularly alleging his qualifications to be a citizen, and his acting as such for forty years, voting and holding office in that state, further distinctly alleged

"on information and belief that prior to October, 1854, his father did in fact complete his naturalization in strict accordance with the acts of Congress known as the naturalization laws, so as to admit and constitute him a full citizen of the United States thereunder, he having exercised the rights of citizenship herein described, and at said time in formed respondent that such was the fact."

To this answer the relator interposed a demurrer, and on these pleadings the court below entered a judgment of ouster against Boyd, to which judgment a writ of error was sued out from this Court.

Held:

(1) That, as the defense relied on arose under an act of Congress and presented a question of federal law, this Court had jurisdiction to review it (FIELD, J., dissenting).

(2) That the fact that the respondent's father became a citizen of the United States was well pleaded, and was admitted by the demurrer.

(3) That upon this record, Boyd had been for two years next preceding his election to the office of governor a citizen of the United States and of the State of Nebraska.

(4) That where no record of naturalization can be produced, evidence that a person having the requisite qualifications to become a citizen did in fact and for a long time vote and hold office and exercise rights belonging to citizens is sufficient to warrant a jury in inferring that he has been duly naturalized as a citizen.

And it was further held by FULLER, C.J., and BLATCHFORD, LAMAR, and BREWER, JJ.:

(5) That the supreme court having denied to Boyd a right or privilege

Page 143 U. S. 137

existing under the Constitution of the United States, this Court had jurisdiction on that ground also to review the judgment of the Supreme Court of Nebraska.

(6) That even if the father did not complete his naturalization before the son attained majority, the son did not lose the inchoate status which he had acquired through his father's declaration of intention to become a citizen, and that he occupied in Nebraska the same position which his father would have occupied had he emigrated to that state.

(7) That within the intent and meaning of the acts of Congress, he was made a citizen of the United States and of the Nebraska under the organic and Enabling Acts of Congress and the act admitting that state into the union.

(8) That Congress has the power to effect a collective naturalization on the admission of a state into the union, and did so in the case of Nebraska.

(9) That the admission of a state on an equal footing with the original states involves the adoption, as citizens of the United States, of those whom Congress makes members of the political community and who are recognized as such in the formation of the new state with the assent of Congress.

(10) That the rule prescribed by § 4 of the Act of April 14, 1802, 2 Stat. 155, c. 28, was to be a uniform rule, and there was no reason for limiting such a rule to the children of those who had been already naturalized, but, on the contrary, the intention was that the act of 1802 should have a prospective operation.

The case was stated by the Court as follows:

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,

Page 143 U. S. 138

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 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

Page 143 U. S. 139

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 fifth 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

Page 143 U. S. 140

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 intention to become a citizen of the United States on the fifth day of March, 1849, before the Court of Common Pleas of Muskingum County, Ohio, and also produced his certificate 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

Page 143 U. S. 141

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 says by reason of the premises, and by reason

Page 143 U. S. 142

of the legal disqualification of the said James E. Boyd to hold said office of governor, the said election for governor was and is null and void."

"11. And the relator further shows that notwithstanding the fact that the said James E. Boyd was and is ineligible to the office of governor as aforesaid, and notwithstanding the fact the relator is bound to continue in and hold the office of governor, and is entitled to the peaceable and undisturbed possession of the office of governor and the furniture and records thereof, yet the said James E. Boyd has usurped and invaded the office of Governor of Nebraska unlawfully, and has unlawfully undertaken to perform the duties of said office, and the relator has refused and refuses for the reason hereinbefore stated to surrender said office to said defendant, and will not do so unless required so to do by the judgment of this honorable court, upon due hearing had."

"Wherefore the said John M. Thayer prays judgment that the defendant, James E. Boyd, be declared not entitled to said office, and that he be ousted therefrom, and that he, the said John M. Thayer, be declared entitled to such office until such time as some person eligible thereto shall be elected and qualified as his successor, and that the said James E. Boyd be enjoined from invading the said office and from interfering in any manner with the furniture, records, or anything therein or pertaining thereto or in any manner interfering or intermeddling with the relator in the performance of the duties of Governor of Nebraska."

The respondent, on the 16th of February, 1891, filed his motion to dismiss the cause for that the relator had no right, title, or authority in law to institute or maintain the action; that the petition did not state grounds sufficient to constitute a cause of action; that the petition showed on its face that respondent was the duly elected, qualified, and acting de jure governor of the state, and entitled in law to hold that office, and bound to discharge the duties thereof, for and during the term of two years from and after January 8, 1891. This motion was overruled, and the respondent was ruled to answer, which he did as follows:

Page 143 U. S. 143

"Now comes the respondent, James E. Boyd, and admits that the Attorney General of this state refuses to prosecute this action, and protests and insists and avers the fact to be that the information herein is insufficient in law to require to respondent to make answer thereto, for that it does not show that said John M. Thayer has any right or title to the said office of Governor of Nebraska, or that he has any right, title, or authority to institute, maintain, or prosecute this action and for that said information does not state facts sufficient to constitute a cause of action."

"Further answering, respondent admits the allegations of the first, second, third, fourth, and fifth paragraphs of the information, except as hereinafter shown. Further answering, said respondent shows to the court that said John M. Thayer was at the regular state election held in the State of Nebraska in November, A.D. 1888, elected to the office of governor of this state for a term thereof commencing in January, 1889, and that upon the canvass of the votes cast at said election he was duly declared to be so elected; that the term of said office is fixed by the constitution to commence on the first Thursday after the first Tuesday in January succeeding the election, and continues for a period of two years, and until his successor shall be elected and qualified, and the respondent further says that the laws of Nebraska at all times herein mentioned provided that, if a qualified incumbent of the office holds over by reason of the non-election or non-appointment of his successor, he shall qualify within ten (10) days from the time at which his successor, if elected, should have qualified by taking the oath of office and executing and having approved and filed for record his official bond in the sum of fifty thousand ($50,000.00) dollars conditioned for the faithful performance of the duties of the office as by law required."

"Respondent further says that the said John M. Thayer continued as the actual incumbent of said office down to the time when this respondent qualified as governor of this state on the 8th day of January, 1891, which was the first Thursday after the first Tuesday in January succeeding the election in question. Respondent further says that the said John M.

Page 143 U. S. 144

Thayer has never since the 8th day of January, 1891, qualified anew as Governor of the State of Nebraska; that he has not since that date taken or filed the official oath required by law, nor has he had his official bond executed or approved or filed for record, as by law required, to qualify him anew if no party was elected to hold said office of governor from and after the said 8th day of January, as he alleges in his information, but which respondent denies, and in this behalf further alleges the fact to be that after the said 8th day of January, 1891, the respondent entered into the office of Governor of the State of Nebraska, and the said John M. Thayer from that time and thereafter wholly surrendered, abandoned, and removed from said office, and has not since in any manner, directly or indirectly, occupied or possessed the same or assumed or pretended to assume to perform any of the functions thereof, but wholly surrendered the same, and vacated said office."

"Answering the sixth paragraph of said information, the respondent admits that after his election to the said office and the canvass of the returns, and after he had been declared elected to the said office by the Speaker of the House of Representatives in the presence of a majority of the legislature, as required by law, he, on the 8th of January, 1891, took the oath of office, executed and filed his official bond, did all other acts and things required by law of him to be done to qualify and entitle him to enter into the possession, use, and enjoyment of said office and to discharge the duties thereof, and the respondent denies that he has usurped or invaded the said office or unlawfully attempted at any time to hold said office and to perform the duties thereof, but avers the fact to be that at and from the commencement of the term of his said office, from January 8, 1891, he has been and now is the duly elected and qualified Governor of the State of Nebraska, in the quiet, legal, and actual possession and enjoyment of said office, and discharging its duties; that he has been recognized so to be by all of the departments and officers of the state government."

"And the respondent further avers the fact to be that the said John M. Thayer ceased to be the incumbent of said office in law and in fact with the expiration of the 8th day of January,

Page 143 U. S. 145

A.D. 1891, and prior to the commencement of this action."

"Answering the eighth paragraph of said information, the respondent denies all the allegations thereof except that he was born in Ireland, of alien parents, in the year 1834; that he was brought to this country, when about ten years of age, by his father, Joseph Boyd, who settled about the year 1844 in Belmont County, Ohio, where he resided for several years, and thereafter removed to Zanesville, Muskingum County, Ohio, where he has ever since resided."

"Respondent also admits that his father, on or about March 5, 1849, when respondent was about 14 years of age, declared his 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, and sovereignty whatever, and particularly the Queen of Great Britain and Ireland, and that the alleged exemplification of the record thereof, copied in said information, respondent believes is a true copy."

"Answering the eighth paragraph of said information, respondent says he admits the facts therein alleged except as in this answer otherwise averred, but denies the conclusions of law and facts therein stated."

"Respondent further avers that his father, for forty-two years last past, has enjoyed and exercised all of the rights, immunities, and privileges, and discharged all the duties, of a citizen of the United States and of the State of Ohio, and was in all respects and to all intents and purposes a citizen of the United States and of the State of Ohio at all times disclaiming and abjuring allegiance to every foreign prince, potentate, state, or sovereignty; that during all of said times said Joseph Boyd 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; that when the said Joseph Boyd settled in the State of Ohio as aforesaid, it was his bona fide intention to make the United States his permanent residence; that at that time he did in fact disclaim and abjure all allegiance and fidelity to the Queen of Great Britain and Ireland and to every other foreign prince, potentate, state, and sovereignty, and for about 40 years acted

Page 143 U. S. 146

in the belief that he was a citizen of the United States, at all said times exercising the elective franchise without question or challenge, voting for all officers of the state and federal governments the same as a native-born citizen of the United States and of the State of Ohio."

"Respondent further says that about the year 1870, said Joseph Boyd was elected to the office of justice of the peace in said Muskingum County, Ohio, and thereupon took an oath to support the Constitutions of the United States and of the State of Ohio, and for several years held said office, exercising all the rights, franchises, powers, and duties of said office, and has for years last past held office under the Constitution and laws of Ohio, to-wit, weighmaster in the City of Zanesville, which office he now holds."

"Respondent further says that he was informed by his father as early as the year 1855 that he, the said Joseph Boyd, was a citizen of the United States, and entitled in law and in fact to all the rights, privileges, and immunities of a citizen of the United States and of the State of Ohio, and that ever since said time this respondent has so believed and accepted the fact so to be, and never heard the fact challenged or questioned till after he was elected to the office of governor of this state in 1890. Respondent further says that he did, upon arriving at the age of 21 years, exercise the elective franchise in said Muskingum County, Ohio, in the fall of 1855."

"The respondent further alleges on information and belief that prior to October, 1854, his father did in fact complete his naturalization in strict accordance with the acts of Congress known as the 'Naturalization Laws,' so as to admit and constitute him a full citizen of the United States thereunder, he having exercised the rights of citizenship herein described, and at said time informed respondent that such was the fact; that when his father applied to be registered in Ohio in October, 1890, under a new law, he was required to produce his citizenship papers, and, being unable to find all thereof, he appeared before said Court of Common Pleas of Muskegon County at the October term thereof, 1890, and the proceedings described in the ninth paragraph of the information were had as therein set

Page 143 U. S. 147

out, but respondent avers the fact to be, on information and belief, that in the matter of said proceedings, said Joseph Boyd acted unadvisedly and ignorantly, the said last-named proceedings being in that event unnecessary."

"Respondent further says that in the year 1856, at the age of 22, he left his father's home in Ohio in the firm belief that he, respondent, was a citizen of the United States in law and in fact to establish himself in life; that he went to the State of Iowa, where he resided for a few months."

"In the month of August, 1856, respondent removed to the Territory of Nebraska, which was then to a large extent a wilderness, and settled in Douglas County, where he resided for two years, working at his trade as a carpenter, and in 1857 he was elected county clerk of said county, and took an oath to support the Constitution of the United States and the provisions of the organic act under which the Territory of Nebraska was created. Respondent removed to what is now Buffalo County, near old Fort Kearney, which was then upon the extreme frontier, in the fall of 1858, where he engaged in the business of farming, in the midst of great perils from hostile Indians, suffering years of extreme hardship. In 1864, at the time of the Indian outbreak in said vicinity, when the lives and property of settlers were destroyed or endangered, when many settlers were massacred, when hostile Indians killed cattle before the door of the home of his family, he volunteered his services as a soldier of the United States, which were accepted by the United States government, he being sworn into its military service by order of General R. B. Mitchell; that he served as a soldier of the United States, without compensation or reward, to protect the men, women, and children of the frontier and to maintain the authority, honor, and flag of the United States government."

"In the year 1866, respondent was elected a member of the House of Representatives of Nebraska to represent the Counties of Buffalo and Hall; that he served as such officer in the following session of the legislature, to which was submitted the proposition of the Congress of the United States to accept the first constitution of this state, with the conditions imposed

Page 143 U. S. 148

by the act of Congress known as the 'Enabling Act,' below named; that before entering upon the duties of said office, he took the oath required by law, and swore to support the Constitution of the United States and the provisions of the organic act under which the Territory of Nebraska was created."

"In 1868, respondent removed to Douglas County, where he has since resided. In the year 1871, respondent was elected by the electors of said county a member of the convention of the people of the State of Nebraska to form a state constitution, and, after taking the oath required by law to support the constitutions of the United States and State of Nebraska, in fact served as a member of said convention."

"In the year 1875, the respondent was elected by the electors of said county a member of the convention of the people of the State of Nebraska to form a constitution, which convention discharged that duty in the year 1875, which resulted in forming the constitution under which the government of this state has since existed. Respondent, after taking the oath required by law to support the constitutions of the United States and of this state, in fact served as a member of said convention."

"In 1880, respondent was elected and acted as President of the City Council of the City of Omaha."

"In 1881, respondent was elected Mayor of the City of Omaha, and served in said office for two years. In 1885, respondent was again elected to said office of mayor, and served for two years, and before taking the office of mayor each of said times respondent took an oath to support the constitutions of the United States and of the State of Nebraska."

"Respondent further says that during said period of over 30 years, he has exercised the elective franchise in said territory and State of Nebraska and enjoyed all the rights, privileges, and immunities of a citizen of the United States and of said territory and state."

"Respondent further says that for over 32 years last past, he has been in fact and in law a citizen of the United States and of said territory and state; that neither the United States nor the Territory or State of Nebraska has ever challenged his

Page 143 U. S. 149

citizenship or sought to oust him of the franchise actually enjoyed and exercised by him to be a citizen of the United States, and that it is not competent for this relator so to do; that if his said right and privilege of being a citizen of the United States is subject to challenge, it is solely for the United States, in its sovereign capacity, to challenge the same."

"And he further avers that he was at the time of the election in question, and for more than two years prior thereto, eligible to be elected to and to hold said office of governor for the term in question."

"Respondent further says that in 1849, it was his bona fide intention to be a citizen of the United States, and that he then renounced and abjured forever all allegiance and fidelity to every foreign prince, potentate, state, or sovereignty whatever, and particularly the Queen of Great Britain and Ireland; that during all the time since, he has 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 all said time has absolutely renounced and abjured all allegiance and fidelity to every foreign prince, potentate, state, or sovereignty, and particularly the Queen of Great Britain and Ireland."

"Further answering, respondent shows to the court that after his said election as governor, and after he had learned for the first time that his citizenship had been questioned, and on December 16, 1890, he went before the District Court of the United States for the District of Nebraska for the purpose of removing all doubts that might arise thereafter in respect thereof, and by petition to said court represented to that court the facts necessary to be known in that behalf touching his said history and citizenship of the United States, insisting therein that he was and had been for more than two years next preceding his election to the office of governor in November, 1890, a citizen of the United States, and also representing to said court that a question had been raised as to his citizenship; whereupon said court, by its judgment, found, determined, and adjudged that he was in fact and law a full citizen of the United States, and respondent avers that he is,

Page 143 U. S. 150

and for many years last past has been, a citizen of the United Stated within the meaning and requirements of the acts of Congress of the United States, a copy of which petition, judgment, and record is hereto attached and made part of this answer."

"Respondent denies the allegations of the 9th, 10th, and 11th paragraphs of said information, except that he refuses to surrender said office of governor to the said relator, and all other allegations of said information not hereinbefore admitted or specially answered."

"Wherefore respondent prays to be hence dismissed, with his costs in this behalf most wrongfully expended, and for such other and further relief as may be just and proper."

Attached to the answer was a duly certified copy of the proceedings of the United States district court therein referred to.

To this answer the relator demurred, and assigned as grounds of demurrer that the answer did not state facts sufficient to constitute a defense; that the facts stated were insufficient to justify the respondent in holding and exercising the office of governor; that the answer showed on its face that the respondent was an alien, and ineligible to the office of Governor of Nebraska in November, 1890 at the time of his pretended election; that the answer admitted the facts pleaded in the information, showing the right of the relator to hold the office of governor; that the exhibits filed by the respondent showed him not to have been a citizen of the United States prior to December, 1890, wherefore relator prayed judgment of the court upon the pleadings that the respondent be ousted from said office of Governor of Nebraska, and that relator be reinstated therein.

On the 12th of March, 1891, the cause was heard upon the demurrer, and on the 5th of May of that year the court announced its opinion, two of the three judges concurring and one dissenting, and entered judgment of ouster as against respondent and reinstating the ralator in said office. On the same day, a writ was issued in accordance with said judgment, and the relator put into possession of said office in place

Page 143 U. S. 151

of the respondent. The opinions will be found reported, in advance of the official series, in 48 N.W. 739. A writ of error was thereupon sued out from this Court.

Page 143 U. S. 157

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