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shall be eligible to the office of governor who shall not have been for two years next preceding his election a citizen of the United States and of the State.
B. was born in Ireland in 1834 of Irish parents. He was brought to the United States in 1844 by his father, in regard to whom the following facts appeared :
He settled in Ohio, where in 1819, in a court of Muskingum county, he made a declaration of intention to become a citizen of the United States; in 1870 he was elected a justice of the peace, an office which he held for several years; he also held for several years another office, under the constitution and laws of the State; he exercised the rights of a citizen of the United States and voted at elections; but in October, 1890, on applying for registration to vote, under a new law which required the production of citizenship papers, he was unable to find any certificate or record of his naturalization, and, on application to the court in which he had formerly made his declaration of intention, he was admitted to United States citizenship.
The facts in regard to B. were as follows: On attaining his majority, in Ohio, he exercised the elective franchise; in 1856 he settled in Douglas County, Nebraska, where in 1857 he was elected county clerk; in 1864 he volunteered, was sworn in, and served as a soldier of the United States to defend the frontier from an Indian attack; in 1866 he was elected a member of the Nebraska house of representatives, and served one session; in 1871 he was elected and served as a member of a State constitutional convention, and in 1875 was elected and served as a member of the convention by which the State constitution then (1892) in force was framed; in 1880 he was elected and acted as president of the city council, and in 1881 and 1885 was elected mayor of Omaha. From the time of his settlement in Nebraska he voted at all elections, territorial, State, municipal, and national. In assuming the various official functions which he discharged he took the necessary oaths, including the oath to support the Constitution of the United States, and (prior to the admission of the State) the provisions of the organic act under which the Territory of Nebraska was created. He never was jydicially admitted to citizenship, except that, after his election as governor, when he learned that his citizenship was questioned, he was, on a petition setting forth the facts, declared and adjudged by the United States District Court for the District of Nebraska to be in fact and in law a citizen of the United States.
On an information to oust B. from the office of governor, maintained by the relator that B's father never was naturalized and never became a citizen of the United States while B. was a minor, nor till 1890, when B. was 56 years of age; and that, as B. himself had not been naturalized, he was not a citizen.
In his answer, B., after referring to the declaration of intention made by his father in 1819, and averring that the latter had for fortytwo years exercised all the rights and discharged all the duties of a citizen of the United States, and was "in all respects and to all intents and purposes a citizen of the United States and of the State of Ohio," 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."
To B.'s answer the relator demurred.
1. That, while the usual proof of naturalization is a copy of the record of the court, yet, " 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 had been duly naturalized as a citizen.” Blight w. Rochester, 7 Wheat. 535, 546; Hogan 1. Kurtz, 94 U. S. 773, 778; and the constitution of the State of Ohio, by which only citizens of the United States are entitled to vote, or to hold office.
2. That the allegation that B's father did, prior to 1857, complete his naturalization under the laws of the United States necessarily implied that he had been duly naturalized before a court as required by those laws, and, together with the other allegations in connection with which it was made, would, if traversed, have warranted a jury in inferring that B's father became a citizen of the United States before October, 1854, and consequently that B. himself was likewise a citizen; and that for this reason, without regard to any other question argued in the case, B. was entitled to judgment on the demurrer.
Boyd 1. Thayer (1892), 143 U. S. 135.
he voted for twenty-five years, and that a person of his name had
citizen. (Ryan 1. Egan, 156 Ill. 2:24, 40 N. E. 827.) That decedent, an alien by birth, came to the United States in 1865 and
lived here until his death in 1899, during which time he participated
father, since dead, told him he was naturalized, and voted as a citizen ; who has himself exercised the rights of a citizen in the parish
without question for thirty years, is not to be declared disqualified as H. Doc. 551-vol 3- -32
a grand juror because he can not procure his father's naturalization papers, and, owing to his father's residence in several States, does not know where to find the judicial record thereof. (State v. Guil
lory (La.), 10 So. 761.) See, also, Cowan r. Prowse (Ky.), 19 S. W. 407; Kadlec t. Pavik, 9 N. D.
278, 83 N. W, 5.
Where it is alleged that a record of naturalization has been burnt
or otherwise destroyed, the Department of State Practice of Depart- leaves it to the courts to hear the evidence of such loss ment of State.
and remedy it.
Mr. Bayard, Sec. of State, to Mr. Ferguson, Feb. 2, 1887, 163 MS. Dom.
“ The proper course for a person seeking to establish his naturalization by other than the ordinary proofs is to resort to the judicial branch of the Government, which is charged with the duty of naturalizing aliens, and which is invested with appropriate powers for investigating and determining matters of fact which are essential to the decision of the question of acquired citizenship.”
Mr. Blaine, Sec. of State, to Messrs. Birdseye, Cloyd & Bayliss, May 9,
1889, 173 MS. Dom Let. 16. See, also, same to same, June 22, 1889,
id. 432. Mr. Blaine, Sec. of State, to Mr. Townsend, February 18, 1890, 170 MS.
Dom. Let. 443; Mr. Adee, Second Assist. Sec. of State, to Mr.
Emanuel, April 5, 1889, 172 MS. Dom. Let. 387.
of naturalization to prove citizenship). (Mr. Blaine, Sec. of State,
“ It has always been held to be beyond the power of the Department to pronounce a judgment that a person is a citizen of the United States by naturalization in the absence of judicial proof of the fact. The records of the Department do not disclose a single case in which, where this question was involved, the Secretary of State did not decline on the ground of lack of authority to take up the question of naturalization independently of the judicial records. The Department acts upon the judgment of the courts, which exercise jurisdiction in such matters and are invested by law with appropriate powers for
Mr. Blaine, Sec of State, to Mr. Pennypacker, June 20, 1890, 178 MS. Dom.
In the case of a widow, who was abroad, and desired a passport, but was unable to produce as evidence of her citizenship the certificate of naturalization of her late husband, it being stated that the document had been lost, the Department of State said: “ The sufficiency of the
secondary evidence of her citizenship must be determined by the diplomatic officer to whom she may apply for a passport, but, when it is clearly shown that the certificate of naturalization or a certified copy thereof cannot be procured, the Department accepts secondary evidence the nature of which is governed by the circumstances surrounding each case."
Mr. Olney, Sec. of State, to Mr. Brice, Dec. 9, 1896, 214 MS. Dom. Let. 659.
in respect of the seizure of a vessel, and who claimed citizenship
3. IMPEACHMENT OF NATURALIZATION.
(1) RULES OF MUNICIPAL COURTS.
The decree or order of naturalization cannot be impeached collaterally.
Campbell v. Gordon, 6 Cranch, 176; Spratt v. Spratt, 4 Pet. 393; The
Acorn, 2 Abb. (U. S.) 434; United States 1. Gleason, 78 Fed. Rep.
Fadden, 3 Lack. Leg. N. 74; Williams, At. Gen., 1874, 14 Op. 509.
taken, (Matter of Desty, 8 Abb. (N. Y.) N. Cas. 250; Green v. Salas,
A judgment of naturalization, void on its face, may be collaterally attacked in a subsequent proceeding by the alien to be admitted to practice as an attorney.
In re Yamashita (1902), 30 Wash. 234, 70 Pac. Rep. 482. See supra,
Provision is made for the criminal prosecution of false personation, false swearing, and forgery in naturalization proceedings, as well as of the uttering, selling, and use of false naturalization papers.
Rev. Stat. $8 5395, 5424-3429; United States 1. Lehman, 39 Fed. Rep.
768; United States 1. Ragazzini, 50 Fed. Rep. 923; United States r. Tynen, 11 Wall. 88; United States 1. Grottkau, 30 Fed. Rep. 672, citing State t. Ilelle, 2 IIill (S. C.), 290.
$ 5424, R. S., does not render punishable the uttering of a forged naturalization certificate by a person other than the person applying for such certificate or appearing as a witness for the person so applying
United States v. York (1901), 131 Fed. Rep. 323.
An individual cannot maintain an action to set aside a naturalization on the ground that it was procured by fraud, the wrong being to the State and not to the individual. McCarran 1. Cooper, 102 N. Y. 651, 57 N. E. 1116; McCarran 1. Cooper,
4 N. Y. S. 69.5, 16 Amp. Div. 311; In re MeCarran, 29 X. I. S. JS?, 31 Abb. N. C. 416, 8 Misc. 482; Pintsch Co. 1. Bergin, St Fed. Rep. 140.
“ The vacation by judicial decrees of fraudulent certificates of naturalization, upon bills in equity filed by the Attorney-General in the circuit court of the United States, is a new application of a familiar equity jurisdiction. Nearly one hundred such decrees have been taken during the year, the evidence disclosing that a very large number of fraudulent certificates of naturalization have been issued."
President Harrison, annual message, Dec. 1, 1890. See In re M«Coppin,
5 Sawyer C. C. 630; United States 1. Norsch, 42 Fed. Rep. 417; Pintsch ('o. t. Bergin, 8+ Fed. Rep. 140; United States 1. Kornmehl,
89 Fed. Rep. 10; In re Shaw, 2 la. Dist. Rep. 250. It was held, however, in 1898, by Judges Lacombe and Shipman, Judge
Wallace dissenting, in a similar suit by the United States, on the strength of United States 1. Throckmorton, 98 L. S. 61, 66, that the naturalization would not be set aside solely on the ground that it was procured by the perjured testimony of the person to whom it was granted. (United States 1. Gleason, 62 U'. S. App. 311.) But it may be doubted whether the rule, as laid down in United States '. Trockmorton, as to the determination of litigated issues by a judgment inter partes, is applicable to the so-called judgment in il naturalization proceeding. The principle of res judicata appears to be theoretic ally inapplicable to a decree of naturalization, which is in no wise a judgment terminating a preexisting controversy, but which is, on the contrary, the basis of constant and repeated future claims on the part of the beneficiary to the rights and privileges of citizenship and
the protective action of the Government. See infra, p. 502. It has lately been held by a Texas court that that State has not sufficient
interest, in the legal sense, to qualify it to bring an action to set aside a fraudulent decree of naturalization in a State court. (Petersen 1. The State, Court of ('ivil Appeals, June 27, 1905, 89 S. W. 81.) It is it fact, however, that the citizenship gained by naturaliziltion qualities the individual to vote at elections in the State and to