The writs of habeas corpus prayed for will | therefore be denied, and the rules hereinbefore entered discharged.

JAMES E. BOYD, Piff. in Err.,

v.

THE STATE OF NEBRASKA, ex rel.
JOHN M. THAYER.

(See S. C. Reporter's ed. 135-186.)

enjoyed all the rights and privileges of a citizen
of the United States and of the Territory, was
within the intent and meaning, effect and opera-
tion of the acts of Congress, in relation to citizens
of the Territory, a citizen of that Territory, and
was made a citizen of the United States and of the
State of Nebraska under the Organic and Enab-
ling Acts and the Act of Admission.

9. Where no reoord of naturalization can be pro-
duced, evidence that a person, having the re-
quisite qualification 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.

Law of Nebraska as to quo warranto-who is
citizen of a State-review of state decision-
collective naturalization in the admission of a
State-who are citizens of a new State-citi-
zens of Nebraska Territory-citizens of Ne-
braska State, who are-effect upon son of
naturalization of father-when jury may in-
fer citizenship-admission of citizenship by 11. The question whether a plea sets up a sufficient
pleading federal question.

1. In Nebraska, in a proceeding in quo warranto, to oust the incumbent from an office and install

the relator therein, if the Attorney-General re-
fuse to file the information, the relator may
obtain leave to prosecute it in the name of the
State, but in his own behalf.

2. A citizen of the United States, residing in any
State of the Union, is a citizen of that State.
8. Where the decision of the state court involved
the denial of a right or privilege under the Con-
stitution and laws of the United States, upon
which the determination of whether plaintiff in
error was a citizen of the United States or not
depended, this court has jurisdiction to review
such decision against such right or privilege.

In the admission of a State a collective naturalization may be effected in accordance with the intention of Congress and the people applying

for admission.

& Admission of a State on an equal footing with the original states, in all respects whatever, in

volves 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 consent of Congress.

6. By the Organic Law under which the Territory of Nebraska was organized, approved May 30, 1854, those who had declared their intention to

become citizens of the United States, and taken

the oath therein mentioned, had the right to hole

NOTE-As to quo warranto; its nature and use, Bee note to Wallace v. Anderson, 5: 91.

10. Where the fact that respondent's father be-
came a naturalized citizen of the United States
while respondent was a minor, is well pleaded, a
demurrer to the pleading admits that fact.

defense, when the defense relied on arises under
an Act of Congress, presents a question of fed-
eral law.

Statement by Mr. Chief Justice Fuller:
On the 13th of January, A. D. 1891, leave
was granted to John M. Thayer, by the Su-
preme Court of the State of Nebraska, to file
an information against James E. Boyd to es-
tablish the relator's right to the office of gov-
ernor 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, 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
for the term of two years from the first Thurs-
as governor made it his duty to hold his office
day 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

As to jurisdiction of United States Supreme Court to declare state law void as in conflict with state conAs to when quo warranto will lie against a cor- stitution; to revise decrees of state courts as to conporation, see note to Ames v. Kansas, 28: 482.

As to jurisdiction in the United States Supreme Court, where federal question arises, or where are drawn in question statutes, treaty, or Constitution, see notes to Martin v. Hunter, 4: 97; Matthews v. Zane, 2: 654, and Williams v. Norris, 6: 571.

struction of state laws, see notes to Hart v. Lamp-
hire, 7: 679, and Commercial Bank of Cincinnati v.
Buckingham, 12: 169.

As to power of Congress over territories, see note to
First Nat. Bank of Brunswick v. Yankton County,
25: 1046.

[137]

[138]

195-186

election of this State on the Tuesday next succecding 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 iepresentatives.

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 the executive officers before they enter upon [139] 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.

". 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 pre-
tended election, on the said Tuesday next suc-
ceeding 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 Ire-
land, 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 Coun-

ty, 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 in-
tention to become a citizen of the United States
and to renounce and abjure forever all alle-
giance and tidelity 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 of
the said common pleas court of the said Musk-
ingum County, Ohio, showing such declara-
tion 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 jour-
nal, vol. 'T.'

"8. And relator further gives the court to
understand and be informed that the said Jo-
seph 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 Musk-
ingum, 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 be 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 certifi
cate 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 he then was; and, the court being then
satisfied that the said Joseph Boyd had com-
plied with the laws of the United States relat
ing to the naturalization of aliens, it was or
dered that he be, and be 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 cit
izen of the United States; and the following is
148 U.S.
a copy of the journal entry from the records of

[141

[14

[142]

the common pleas court of said Muskingum | taining thereto, or in any manner interfering
County, Ohio, showing such application of the or intermeddling with the relator in the per-
said Joseph Boyd to be admitted to become a formance of the duties of governor of Neb-
citizen and his admission to citizenship of the raska."
United States, to wit:

The respondent, on the 16th of February,
[Here follows the record referred to.] 1891, filed his motion to dismiss the cause for
"And the relator has and exhibits to the that the relator had no right, title, or author-
court a duly certified transcript of the said rec-ity in law to institute or maintain the action;
ord entry as found on page 145 of said jour-
Dal, volume 42.

that the petition did not state grounds suffi-
cient 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:

"9. And the relator further shows that care-
ful 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 rec-
ord or journal entry in any shape or form in
said court and in the records thereof of or con-
cerning 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 un-stitute a cause of action.
der oath, showing such facts.

"10. And the relator further shows that the
said James E. Boyd has never at any time de-
clared his intention to become a citizen of the
United States, nor has he ever made applica-
tion 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 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 herein before 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 ver

"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 the 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 con

"Further answering, respondet 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 the 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.

[143]

"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. Thayer has never since the 8th day of Janu. [144 ary, 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

[145]

law, nor has he had his official bond executed | therein alleged, except as in this answer other-
or approved or filed for record, as by law re-wise averred, but denies the conclusions of law
quired, to qualify him anew if no party was and facts therein stated.
elected to hold said office of governor from
and after the said 8th day of January, as he
alleges in his information, but which respond-
ent 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.

"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 in-
tents 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, at-
tached to the principles of the Constitution of
the United States and well disposed to the good
order and happiness of the same; that when
"Answering the sixth paragraph of said in- the said Joseph Boyd settled in the State of
formation the respondent admits that after his Ohio as aforesaid it was his bona fide intention
election to the said office and the canvass of to make the United States his permanent resi-
the returns and after he had been declared dence; that at that time he did in fact disclaim
elected to the said office by the speaker of the and abjure all allegiance and fidelity to the
house of representatives in the presence of a Queen of Great Britain and Ireland and to
majority of the Legislature, as required by law, every other foreign prince, potentate, state,
he, on the 8th of January, 1891, took the oath and sovereignty, and for about 40 years acted
of office, executed and filed his official bond, in the belief that he was a citizen of the United
did all other acts and things required by law States, at all said times exercising the elective
of him to be done to qualify and entitle him franchise without question or challenge, vot-
to enter into the possession, use, and enjoying for all officers of the state and federal
ment of said office and to discharge the duties
thereof, and the respondent denies that he has
usurped or invaded the said office or unlaw. "Respondent further says that about the
fully attempted at any time to hold said office year 1870 said Joseph Boyd was elected to the
and to perform the duties thereof, but avers office of justice of the peace in Muskingum
the fact to be that at and from the commence- County, Ohio, and thereupon took an oath to
ment of the term of his said office, from Janu- support the Constitutions of the United States
ary 8th, 1891, he has been and now is the duly and of the State of Ohio, and for several years
elected and qualified governor of the State of held said office, exercising all the rights, fran-
Nebraska, in the quiet, legal, and actual pos-chises, powers, and duties of said office, and
session and enjoyment of said office and dis-
charging 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, A. D. 1891, and prior to the commence

ment of this action.

"Answering the eighth paragraph of said in formation, 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 5th, 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 8th paragraph of said information, respondent says he admits the facts

governments the same as a native-born citizen
of the United States and of the State of Ohio.

has for years last past held office under the
constitution and laws of Ohio, to wit, weigh-
master in the city of Zanesville, which office
be now holds.

"Respondent further says that he was in-
formed 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 the State of
Ohio, and that ever since said time this respond-
ent 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. Respond-
ent further says that he did, upon arriving at
the age of 21 years, exercise the elective fran-
chise in said Muskingum County, Ohio, in the
fall of 1855.

"The respondent furtner 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 citi. zenship papers, and being unable to find all thereof, he appeared before said court of com

[14

[47]

mon pleas of Muskingum County, at the October term thereof, 1890, and the proceedings described in the 9th paragraph of the information were had as therein set 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.

convention of the people of the State of Ne-
braska, to form a constitution, which conven-
tion discharged that duty in the year 1875,
which resulted in forming the constitution un-
der which the government of this State has
since existed. Respondent, after taking the
oath required by law to support the constitu-
tions 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.

"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 provins of the Organic Act under which the Territory of Nebraska was created. Respondent removed to what is now Buffalo County, "Respondent further says that for over 32 Dear old Fort Kearney, which was then upon years last past he has been in fact and in law a the extreme froutier, in the fall of 1858, where citizen of the United States and of said Terrihe engaged in the business of farming, in the tory and State; that neither the United States midst of great perils from hostile Indians, suf nor the Territory or State of Nebraska has fering years of extreme hardship. In 1864, at ever challenged his citizenship or sought to the time of the Indian outbreak in said vicinity oust him of the franchise actually enjoyed and when the lives and property of settlers were exercised by him to be a citizen of the United destroyed or endangered, when many settlers States, and that it is not competent for this rewere massacred, when hostile Indians killed lator so to do; that if his said right and privicattle before the door of the home of his fam-lege of being a citizen of the United States is ily, he volunteered his services as a soldier of subject to challenge, it is solely for the United the United States, which were accepted by the States in its sovereign capacity to challenge the United States government, he being sworn into same. 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 govern

ment.

"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 "In the year 1866, respondent was elected a United States, and that then he renounced and member of the house of representatives of Ne- abjured forever all allegiance and fidelity to braska to represent the counties of Buffalo and every foreign prince, potentate, state or soverHall; that he served as such officer in the fol- eignty whatever, and particularly the Queen lowing session of the Legislature, to which was of Great Britain and Ireland; that during all submitted the proposition of the Congress of the time since he has behaved as a man of good the United States to accept the first constitu- moral character, attached to the principles of tion of this State with the conditions imposed the Constitution of the United States and well by the Act of Congress known as the Enabling disposed to the good order and happiness of Act, below named; that before entering upon the same, and all said time has absolutely re[148] the duties of said office he took the oath re-nounced and abjured all allegiance and fidelity quired by law and swore to support the Con- to every foreign prince, potentate, state or sovstitution of the United States and the provis-ereignty, and particularly the Queen of Great ions 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

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 16th, 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

[149]