State ex rel. Thayer v. Boyd

48 N.W. 739, 31 Neb. 682, 1891 Neb. LEXIS 5

• Court: Nebraska Supreme Court
• Decided: May 5, 1891
• Status: Published

Opinions

Nor val, J.

This is an action of quo warranto, brought in this court by John M. Thayer, in his own behalf, the attorney general having refused to prosecute the same, to establish the relator’s right to the office of governor of this state, and to oust the respondent therefrom. The information 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 he 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 office required to be taken by 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 said office and perform the duties of governor of Nebraska, and will continue so to do, unless ousted 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 pf 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 E. 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.”

(Here follows a copy of the journal entry from the records of said common pleas court, showing such declaration of intention.)

“8. And relator further gives the court to understand and be informed that the said Joseph Boyd, father of aforesaid 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 common pleas court, held within and for the county of Muskingum, 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 he then was. And the court being then satisfied that 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, a certificate thereof was then issued to him, and before that time he had never been and was not a citizen of the United States.”

(Here is set out a certified copy of the records of said common pleas court, showing the application of Joseph Boyd to be admitted to become a citizen, and his admission to citizenship.)

“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 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 has ever remained an alien and a subject of 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 that the relator is bound to continue in and to 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 reasons 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.”

The relator prays for a judgment of ouster, and that he be declared entitled to said office, until such time as some person eligible thereto shall be elected and qualified as his successor.

To the information the respondent filed a motion to dismiss the cause on the grounds :

1. That the relator has no right to institute or maintain the action.

2. That the petition does not state facts sufficient to constitute a cause of action.

3. That the petition shows that the respondent is the duly elected, qualified, and acting de jure governor, and is entitled to hold and discharge the duties of said office for the term of two years from the 8th day of January, 1891.

After argument at the bar the motion was overruled, and thereupon the respondent answered the relation as follows :

“ 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 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 the times herein mentioned provided that, if a qualified incumbent of the office holds’ over by reason of the non-election or noq-appointment of a 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, executing it, in having approved and filed for record his official bond in the sum of fifty thousand (50,000) 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. 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 bold 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 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 dedared 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 employment 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 his 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 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 1841, 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 fourteen 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 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 forty years acted in the belief that he was a citizen of the United States, 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 supjjort the constitutions of the United States and of the state of Ohio, and for several years held said office, exercising all the rights, franchises, poweis, and duties of said office, and 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 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 twenty-one years, exercise the election 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 Muskingum county, at the October term thereof, 1890, and the proceedings described in the ninth 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 thateyent unnecessary.

“Respondent further says that in the year 1856, at the age of twenty-two, 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 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 thirty 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 thirty-two 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 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 tc 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 ficle 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, ánd 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 Novembei’, 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, and for many years last past has been, a citizen of the United States 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 9 th, 10 th, 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 expanded, and for such other and further relief as may be just and proper.”

The relator demurred to the answer on the ground that the facts stated therein are insufficient in law to constitute a defense. The case was submitted upon able arguments at the bar, and exhaustive briefs.

We are met at the outset of our investigation with the proposition that this court has no jurisdiction to hear and determine the right of the respondent to hold the office of governor. Section 2 of article 6 of the constitution confers upon the supreme court original jurisdiction in mandamus, quo warranto, and habeas corpus.

Section 704 of the Code of Civil Procedure provides that “An information may be filed against any person unlawfully holding or exercising any public office or franchise within this state, or any office in any corporation created by the laws of this state, or when any public officer has done or suffered any act which works a forfeit ave of his office,” etc.

Section 710 provides that “When the defendant is holding an office to which another is claiming the right, the information should set forth the name of such claimant, and the trial must, if practicable, determine the rights of contesting parties.”

Section 717 provides that “When an information is upon the relation of a private individual, it shall be so stated in the petition and proceedings, and such individual shall be responsible for costs in case they are not adjudged against the defendant,” etc.

These, as well as other statutory provisions not quoted, give a party who claims a public office the power to institute iix the supreme court quo warranto proceedings in his own name, to test the right of the incumbent .to discharge the duties of such office. Authority is likewise conferred upon the attorney general to bx-ing such an action.

It is claimed that an information in the nature of a quo warranto will not lie against one holding the office of governor. In State v. Thayer, ante, p. 82, we held that man-damns will lie against the governor to compel the performance of an official duty which is purely ministerial. And at the present term, in State v. Elder, ante, p. 169, it was decided that it was the duty of the speaker of the house of representatives, immediately upon the organization of the house, and before proceeding to other business, to ope» and publish the returns of the election for officers of the executive department, and that the duty thus enjoined upo» the speaker, by the constitution was a ministerial duty, which would be enforced by mandamus.

While it is true the executive and judicial departments-of the state government are equal, co-ordinate, and independent branches, and the officers of one department are prohibited by the constitution from exercising any powers or duties properly belonging to the other, yet it does not logically follow that the judiciary is powerless to hear and determine whether the person discharging the duties of the office of governor is disqualified by the constitution from holding the office. This court, by entertaining a proceeding brought to test the right of the relator and the respondent to the office of governor, does not exercise nor assume to exercise any power belonging to the executive department. The sole object and purpose of this proceeding is to ascertain who, under the constitution and laws, is entitled to perform the duties of that office.

Mr. High, in his book on Extraordinary Legal Remedies, section 634, says : “ The office of governor of a state is regarded as a civil office of such a nature as to be amenable to the exercise of the jurisdiction under discussion. And where, by the constitution and laws of a state, its-highest judicial tribunal is vested with jurisdiction by information in the nature of a quo warranto to prevent the-citizens of the state from usurping its offices and franchises, an unlawful intrusion into the chief executive office of the-state maybe tried by this proceeding to judgment of ouster. In such case a plain distinction is recognized between a. department of the government and the person assuming to exercise its duties, and the judicial branch of the government in no manner interferes with, or attempts to control, the legitimate functions of the executive department, but only seeks to protect the people from an unlawful usurpation of a high public office or franchise.” The text of the learned author is fully sustained by the able opinions of the court in the case of the Attorney General v. Barstow, 4 Wis., 750.

But it is contended that the constitution having provided that contested elections for all officers of the executive department shall be determined by the legislature, that remedy is exclusive of all others. The authorities cited in the brief of the respondent sustain the proposition. But the holdings of this and other courts are the other way, that the remedy by contest is not the sole remedy.

In Kane v. People, 4 Neb., 509, was a proceeding by quo warranto, brought in the district court of Cheyenne county by Henry Snyder to test the right of Thomas Kane to hold the office of county treasurer of that county. On error to this court, objection was made that the court had no jurisdiction. In the opinion prepared by the then Chief Justice Lake it was held that the remedy by contest is merely cumulative and that quo warranto is a concurrent ¡remedy.

In State v. Stein, 13 Neb., 529, was a proceeding by quo ■warranto to try the right of the respondent, Robert P. Stein, to the office of county treasurer of Kearney county. It was ruled that the supreme court had jurisdiction. To the same effect are Attorney General v. Barstow, 4 Wis., 750; State v. Messmore, 14 Id., 115, and People v. Holden, 28 Cal., 123.

While the constitution declares that contests of the election of officers of the executive department are to be tried by the legislature, the same instrument, as already stated, ■confers jurisdiction in quo warranto upon the supreme ■court. It was not the intention of the framers of the constitution that the remedy by contest should impair the right •of the judiciary to inquire into the authority by which any person assumes to exercise the duties of an office of the •executive department, and to remove him therefrom, if he is constitutionally ineligible to be elected to or hold such office. We have no doubt that this court has jurisdiction •of the case.

It appears from the pleadings that the respondent received a plurality of the votes cast for the office of governor at the general election held in November, 1890. It is claimed "by the relator that the defendant did not become a citizen of the United States until after such election, and therefore he was not eligible to, nor legally elected to, such •office.

Section 2 of article 5 of the constitution reads: “No person shall be eligible to the office of governor, or lieutenant governor, who shall not have attained the age of thirty years; and been for two years next preceding his •election a citizen of the United States and of this state. None of the officers of the executive department shall be ■eligible to any other state office during the period for which they shall have been elected.”

The word “ eligible ” is defined in the Century dictionary to be “qualified to be chosen ; legally qualified for election or appointment.” Substantially the same definition •of the word is given in Webster’s dictionary. In this -sense the word “eligible” is used in the constitution. The above constitutional provision was intended as a restriction ■upon the electors in choosing their governor and lieutenant governor. The people are prohibited from selecting any person to fill either of these offices who has not been a citizen of this state and of the United States for at least two years next preceding the election at which such officers are to be chosen, or who is under the age of thirty years.

Section 97 of chapter 26, Comp. Stats., provides that “ When .the person whose election is contested is found to have received the highest number of legal votes, but the election is declared null by reason of legal disqualification on his part, or for other causes, the person receiving the next highest number of votes shall not be declared elected, but the election shall be declared void.” It is plain, whether we construe this section and the quoted provision of the constitution together or separate, that the effect of a person receiving a plurality of votes for the office of chief executive of the state, who does not possess the constitutional qualifications to be chosen, is to avoid the election and not to elect the person receiving the next highest number of votes for that office. (State v. McMillen, 23 Neb., 385; In re Corliss, 11 R. I., 638 ; Dryden v. Swinburne, 20 W. Va., 134; State v. Sullivan, 47 N. W. Rep., 802; Saunders v. Haynes, 13 Cal., 154; Commonwealth v. Cluley, 56 Pa. St., 270; Com. v. Hanley, 9 Id., 513; State v. Jenkins, 43 Mo., 261; Gulick v. New, 14 Ind., 93; State v. Swearingen, 12 Ga., 23; State v. Smith, 14 Wis., 497; State v. Gastinel, 20 La. Ann., 114; People v. Clute, 50 N. Y., 451.) The question is so fully considered in these cases that further discussion is entirely unnecessary.

The record shows that the respondent, James E. Boyd, was born in Ireland, of alien parents, in the year 1834, and that he was brought to this country when ten years of age by his father, Joseph Boyd, who, since the year 1844, has resided in the state of Ohio. Joseph Boyd, on March 5, 1849, at Zanesville, Muskingum county, Ohio, before the common pleas court of that county, declared his intention tó become a citizen of the United States, and in October, 1890, the said Joseph Boyd duly made application to the common pleas court of said Muskingum county to be admitted to become a citizen of the United States, and he was thereupon by the order of said court duly naturalized.

On the 16th day of December, 1890, the respondent, before the district court of the United States for this district, declared his intention to become a citizen of the United States, and at the same time made application to be admitted to become a naturalized citizen. By the order of said court he was on said last named date admitted to citizenship.

Did the naturalization of Joseph Boyd in 1890 make the son a citizen ? Section 4 of the act of congress entitled “An act to establish a uniform rule of naturalization,” etc., approved April 14, 1802, the same being section 2172 of the Revised Statutes of the United States, reads as follows:

“Sec. 4. The children of persons who have been duly naturalized under any law of the United States, or who, previous to the passing of any law on that subject by the government of the United States, may have become citizens of any one of the states under the laws thereof, being under the age of twenty-one years at the time of the naturalization of their parents, shall, if dwelling in the United States, be considered as citizens thereof; and the children of persons who now are, or have been, citizens of the United States, shall, though born out of the limits and jurisdiction of the United States, be considered as citizens thereof; but no person heretofore proscribed by any state, or who has been legally convicted of having joined the army of Great Britain during the revolutionary war, shall be admitted to become a citizen without the consent of the legislature of the state in which such person was proscribed.”

Under the provisions of this section the minor children of an alien, born out of the United States, if dwelling in the United States at the date of the naturalization of their parents, become ipso facto citizens by such naturalization ; but it does not have the effect to make the children citizens if they are more than twenty-one years of age at the time the parent is admitted to citizenship. As the respondent was about fifty-six years old when his father was naturalized, it is obvious that such naturalization did not make-file son a citizen. (Dryden v. Swinburne, 20 W. Va., 89; State v. Andriano, 92 Mo., 70; Gumm v. Hubbard, 97 Id., 311; State v. Penny, 10 Ark., 621; O’Connor v. State, 9 Fla., 215 ; U. S. v. Kellar, 13 Fed. Rep., 82; Campbell v. Gordon, 6 Crunch, 176.)

We have found no case, and none has been cited by-counsel, which holds that the naturalization of a parent makes his children, who are at the time over the age of twenty-one years, citizens.

The respondent in his answer alleges, upon information and belief, that prior to October, 1854, his father completed his naturalization in strict accordance with the laws of congress on that subject. This allegation is insufficient to show that Joseph Boyd was a citizen of the United States. It is nowhere averred that any court admitted him to become a citizen prior to October, 1890. The name-of the court should be averred, so as to show that the proceedings were before a tribunal having jurisdiction of the-matter. • The order of a cóurt admitting an alien to citizenship is a judicial act, in the nature of a judgment. Such proceedings are required to be made a matter of record-The record must be pleaded and' proved the same as any other judicial record. Naturalization cannot be established by parol. (Ex parte Knowles, 5 Cal., 300; Bump v. Commonwealth, 30 Pa. St., 475; In re Clark, 18 Barb., 444; Morgan v. Dudley, 18 B. Mon., 693; Green v. Salas, 31 Fed. Rep., 106; Dryden v. Swinburne, supra; State v. Penny, 10 Ark., 621; Spratt v. Spratt, 4 Peters, 393;. Bode v. Trimmer, 23 Pac. Rep., 187.)

The fact that Joseph Boyd, for more than forty years,, voted at elections and held public offices in the state of Ohio falls far short of raising a presumption that he was admitted to citizenship prior to October, 1890. It is clear that voting and holding office do not make an alien a citizen of the United States, nor raise a presumption of such-The fact that Joseph Boyd was admitted and declared a citizen in October, 1890, in the county where he had lived for forty years, and in the same court in which he declared his intention to become a citizen on March 5, 1849, strengthens the conclusion that he was not naturalized until October last. Nor does the fact that James E. Boyd has at each election in this state exercised the elective franchise, and has frequently been elected to and held important public offices, make him a citizen of the United States. This proposition is sustained by the following authorities: Dryden v. Swinburne, supra; Lanz v. Randall, 4 Dillon, 425 ; Maloy v. Duden, 25 Fed. Rep., 623.

It is evident that the numerous oaths taken by the respondent to support the constitution of the United States and of this state did not make him a citizen of the United States. In order that an alien may be admitted to citizenship, he must prove to the satisfaction of some court having jurisdiction of the matter the facts required by the act of congress on that subject, and at the same time declare, on oath, before such court “that he will support the constitution of the United States and that he absolutely and entirely renounces and abjures all allegiance and fidelity to' every foreign prince, potentate, state, or sovereignty, and particularly, by name, to the prince, potentate, state, or sovereignty of which he was before a citizen or subject.” (U. S. Rev. Stats., sec. 2165.) Congress has established a uniform rule of naturalization, andan alien cannot be admitted to citizenship thereunder unless he follows the mode prescribed by the naturalization laws. The oaths taken by the respondent to uphold the federal constitution do not appear to have been administered by a court having jurisdiction, nor is it averred that he declared in any of the oaths that he absolutely renounced all allegiance to the queen of Great Britain and Ireland, of whom he was a subject.

It is insisted that Joseph Boyd having declared his intention to become a citizen while James E. Boyd was a minor, the son took the status of the father, and the naturalization of the respondent in December, 1890, relates back to and makes him. a citizen from the time his father made his declaration of intention. This position is untenable. The provisions of the constitution elsewhere quoted makes a person ineligible to the office of governor who is not a citizen of the United States for twoyearspriorto theelection. The respondent being disqualified to be elected when the votes were cast, his election was a nullity. His subsequent naturalization could not give validity to that which was void. Naturalization is not retroactive, and the doctrine of relation • has no application to the case at bar. (Dryden v. Swinburne, 20 W. Va., 134; Heney v. Brooklyn Benevolent Society, 39 N. Y., 333; Priest v. Cummings, 20 Wend., 342.)

Judge Green in his opinion in Dryden v. Swinburne, supra, says: “Another position taken is, that the naturalisation of Ralph Swinburne in 1866 related back to 1852, when he made his declaration, and he is therefore to be now •considered as a citizen from that date.” No authority is cited to sustain this novel position, except a number of •cases on entirely distinct subjects, in which, for reasons applicable to such cases, the law permits in certain cases a relation back. Thus an office found when returned relates back and vests title in the commonwealth from the finding. So the appointment of an administrator for certain purposes relates back to the death of the testator. A patent, when issued, r-elates back to the entry. A sale, when confirmed by a court of equity, relates back to the time of the sale. The astute counsel could have found, no doubt, many other cases where the law allows such relation back, some times for all purposes and at other times for certain purposes only. On the other hand innumerable cases might be cited where there is no such relation back. Each case of this character is based on reasons applicable to it specially. But what possible bearing they, dr the reasons on which they are based, have upon the present case I confess I am unable to perceive. The only matter referred to in this connection which has any reference to naturalization is not a judicial case but the action of the federal government, many years since, in demanding the release of an Austrian, Martin Coster, who had declared his intention to become a citizen of the United States and who was afterwards unjustly imprisoned by the Austrian government. This shows that a person, who has declared his intention to become a citizen of the United States, has certain rights which our government will protect. Doubtless he has many rights which the courts will protect, but this certainly does not show that he has all the rights of a citizen. If it shows anything, which has ■ any relation to the matter before us, it shows too much. If Martin Coster had the rights of a citizen he had them before he was naturalized, for when he was arrested he had not been naturalized.”

In the New York case Woodruff, J., in speaking for the court, says: “It is clear, I think, that we are_ to seek for the legal effect of naturalization in the statutes by which it is authorized, and in such legislation as has been had in our own state on the subject. It is not to be determined upon a mere definition of the term ‘ naturalization.’ But if it were, it would be most logical and most consistent with sound principle to say that the subject, when naturalized, began to have capacities pertaining to citizenship available for the future, and only in such future. If it -were conceded, that the congress of the United States have power to declare the effect of naturalization, so as to give to the subject thereof all the rights, retroactively as well as prospectively, which he would have or would have had if native born, of which, in respect to real estate within the state, the transfer, transmission, and descent of which is peculiarly matter of state policy, there is great room for doubt; I think it clear, that the naturalization laws of the United States admit of no such construction.

“Under those laws the applicant is admitted to citizenship; upon complying with certain prescribed conditions, he becomes a citizen. He is put in a condition, or acquires a character, in which he can have and enjoy all the rights and privileges which, by law, pertain to citizenship, and that is all. But all this is according to the plain reading of the laws, prospective. Plis capacity then begins to be useful, or efficient to enable him to enjoy whatever pertains to his new character.”

We therefore reach the conclusion that the naturalization of the respondent by the order of the United States court last December has no retroactive effect, and in reaching this conclusion we have not overlooked the authorities cited by counsel for respondent upon this branch of the case. They are not analogous to the case before us.

There is another good reason for holding that the naturalization of James E. Boyd does not relate back to the time his father took out his first papers. Such papers were of no av.ail to the son when he made application to be admitted to citizenship. James E. Boyd was compelled, before he was naturalized, to declare his intention to become a ci.izen. Under the acts of congress, James E. Boyd, being under the age of twenty-one years when he came to the United States, was authorized to do this at the same time he applied for citizen papers. It was all one transaction on the same day. The doctrine of relation could not therefore apply in this case.

It is urged that the respondent became a citizen of the United Slates by the admission of the territory of Nebraska as a state into the Union. We will now examine the question thus presented. The enabling act, approved April 19, 1864, provides that whenever a constitution shall be formed by the people of the territory of Nebraska, in compliance with the provisions of the act, “it shall be the duty of the president of the United States to issue his proclamation declaring the state admitted into the Union on an equal footing with the original states, without any further action whatever on the part'of congress.” AfterAvards, on the 1st day of March, 1867, the president of the United States issued his proclamation, wherein he declared and proclaimed the fact “that the fundamental conditions imposed by congress on the state of Nebraska, to entitle that state to admission to the Union, have been ratified and accepted, and the admission of said state into the Union is now complete.”

The question for consideration is, whether the admission of Nebraska as a state into the Union on an equal footing with the original states as provided by the enabling act, and the proclamation of the president, made all the inhabitants therein, ipso facto, citizens of the United States. Similar language is fouud in the enabling acts by which various territories were authorized to form state governments in order to be admitted into the Union as states. It will be observed that the enabling act of Nebraska contains no provision touching the rights, privileges, and immunities of the inhabitants, upon the state coming into the Union. The inhabitants of the territory, at the time the state government Avas formed', Avere subject to the jurisdiction of the United States and were already citizens of the United States, excepting such as were aliens. These inhabitants, who Avere citizens of the United States, were none the less citizens by reason of the fact that they were inhabitants of the territory. Citizens of the United States do not lose their citizenship by changing their residence from a state to a territory. Citizens of the United States residing in the District of Columbia and in the territories are such citizens to the same extent that they would be if residing in one of the states. (Prentis v. Brennan, 2 Blatch., 164; Picquit v. Swan, 5 Mason, 54.)

It may be safely stated that about as large a proportion of the inhabitants of the territory of Nebraska were citizens of the United States as of the inhabitants of any of the states of the Union. There was no occasion, therefore, for congress to intend the admission of the state into the Union as an act of collective naturalization. There was no more urgency or necessity for such a collective act of naturalization in the territory than there would be to pass, from time to time, acts for collective naturalization of aliens residing within the states. If congress had intended the admission of new states into the Union, under the various enabling acts, to operate as a naturalization of all aliens residing therein, it is reasonable to suppose that it would have been so provided in the acts themselves in unmistakable terms.

The constitution of the United States has conferred upon congress the power to pass naturalization laws, and congress has passed many acts on that subject. If congress intended to extend the right of naturalization of aliens by the enabling act, outside of and beyond the various acts of congress upon that subject, it would have so provided in the enabling act in language so plain and explicit as not to require construction. Applying the accepted rules of statutory construction, it cannot be held that the enabling act was intended to relate to naturalization, either individually or collectively, and in contravention of the naturalization acts of congress, without it being so specifically stated in the enabling act.

Collective naturalization is where the government, by treaty or cession, acquires the whole or a part of the territory of another nation and takes to itself the inhabitants thereof. Eor illustration of this we refer to the treaty of Paris, by which we acquired Louisiana territory; the treaty with Spain, by which we acquired Florida; the treaty of Guadalupe Hidalgo, by which we acquired New Mexico and California, and the resolution of congress by which the republic of Texas was annexed to the United States. The power to confer such collective naturalization was not expressly conferred upon congress by the constitution, but, doubtless exists in the government as a necessary part of the treaty-making power. It being granted that the power exists in congress to acquire territory by purchase, treaty, or cession, then it follows that the terms of such purchase, treaty, or cession may provide for the naturalization, in solido, of such of the inhabitants of the acquired territory or country as may elect to adhere to the new government. This as a matter of political necessity, the reasons for which are clear. These inhabitants are presumably natives of the soil; they constitute the body of the people; there are no courts of the new government established in such acquired territory to administer the uniform rule of naturalization established by congress, nor will there likely be in the near future. Without this power, then, the whole body of the inhabitants of the acquired territory must of necessity remain for a long and indefinite period without allegiance to, or the rights of citizenship, in any country. This principle cannot, however, be applied to Nebraska, for the reason that the territory of Nebraska, as well as the inhabitants thereof, were already within the jurisdiction of the United States and subject to the general government. Federal and territorial courts had been established in the territory with ample power to naturalize foreigners, and were in the daily exercise of such powers. But a small per cent of the inhabitants were of foreign birth, and most of these had taken the initiatory steps to become naturalized by judgment of the courts under the general law of congress. This question is made more clear by reference to the language of the enabling act. It provides that the state shall be admitted into’the Union on an equal footing with the original states. It was the state which was admitted into the Union. The land, personal property, and inhabitants were already within the jurisdiction of the federal government. The state, in its municipal and sovereign capacity, was a new creation. It was the state thus newly created in its sovereign capacity that was admitted into the Union. It may be said that the inhabitants make the state; nevertheless the state in its political organization is entirely different and distinct from the inhabitants who may happen to reside therein.

The words “ equal footing with the original states ” cannot fairly be construed to have any reference to the status of the inhabitants. The word “footing” is defined “firm position; established place; relative condition.” We must look to the constitution of the United States to find out what the “firm position,” “established place,” and “relative condition” of the various states are. The rights of the states thus referred to are defined in the constitution, such as having representation in the respective houses of congress and in the electoral college, and other relative rights more particularly described in article 4 of the constitution of the United States. The position and relative rights of the states set forth and defined in the constitution, which were possessed by the original states by virtue of the adoption of the constitution of the United States, were what were intended to be secured to Nebraska by the enabling act.

If that act is to be construed as fixing the status of the inhabitants, why have it relate to citizenship any more* than to property rights, or personal rights? If it was intended to fix the status of the inhabitants, as was the status of the inhabitants of the original states, then we are led into interminable difficulties by reason of the fact that these rights were different in the various states. The personal rights of the inhabitants of the original states, with reference to the elective franchise, are collated in Minor v. Happersett, 21 Wall., 172, by which it will be seen that they were not alike in any two of such states.

It may be suggested, however, that the inhabitants of the original states became, ipso fado, citizens of the United States. The reason of that 'was that the people of the original states were the persons who associated themselves together to form a nation and consequently were its original citizens. (Minor v. Happersett, supra.) The inhabitants of Nebraska were not creating a new and independent government, and by the admission of Nebraska into the Union they did not throw off their allegiance to a foreign power. The principle which fixed and determined the status of the original state can have no application to this case.

The language of the enabling act has no reference to the status of the inhabitants of the original states at the time the state came into the Union any more than it can be said to have reference to the footing or the relative rights of the original states at the time when a union of states was formed. It is self-evident that no territory can now be admitted into the Union as a state, with all the rights and privileges which were possessed by the original states when they came into the Union, This may be illustrated by reference to the fourteenth amendment to the constitution of the United States, which, since its adoption, forbids the states from exercising powers and privileges which the original states could exercise at the time the Federal Union was formed. It is not an answer to this illustration to say that Nebraska was admitted into the Union before the adoption of the fourteenth amendment, because we find substantially the same language in the enabling acts by which new states have been admitted into the Union since the adoption of that amendment. We think it clear, both from the language of the enabling act and from constitutional and political histoiy, that the provisions of the enabling act by which Nebraska was admitted into the Union on an equal footing with the original states must be used in the present tense, that is to say, was admitted with the same relative rights which the original states held under the constitution at the date Nebraska was admitted. If this view be correct, the words “equal footing” could not be construed as naturalizing all aliens who were then .inhabitants of the state, for the reason that aliens residing at that time within the limits of the original states were not citizens of the United States.

If it be true that the admission of a state naturalizes all aliens who were inhabitants of the territory at the time, then all that need be done by newly arrived immigrants to be transformed from alienage into citizenship, would be to take up their abode in a territory prior to its admission as a state into the Union. Congress foresaw the danger attending the naturalization of aliens before they had acquired a knowledge of the constitution and laws of our country, and consequently required a residence for a period of five years and, in addition to that, proof should be taken before a proper court that they were of good moral character and attached to the principles of the constitution of the United States, before they could be admitted to citizenship. This policy of our government would be entirely overturned by holding that aliens became citizens by the mere admission of a territory as a state. This rule would admit to citizenship foreigners who do not possess the qualifications to be admitted to American citizenship and that, too, without their consent.

The eighth section of the act of congress, approved February 22, 1889, which enabled the inhabitants of the Dakotas, Montana, and Washington to form constitutions and state governments and to be admitted into the Union, provides : “And if the constitutions and governments of said proposed states are republican in form, and if all the provisions of this act have been complied with in the formation thereof, it shall be the duty of the president of the United States to issue his proclamation announcing the result of the election in each, and thereupon the proposed states which have adopted constitutions and formed state governments as herein provided shall be deemed admitted by congress into the Union, under and by virtue of this act, on an equal footing with the original states, from and after the date of said proclamation.” This language is, in substance, the same as that contained in the enabling act by which Nebraska became a state. The necessary conclusion from the rule of construction contended for by respondent in this case would make the Chinese residing in the Dakotas, Montana, and Washington, when those states were admitted into the Union, citizens of the United States, while the courts have uniformly held that the Chinese were not proper subjects for naturalization under our present laws.

If we were to give to the admission of Nebraska as a state into the Union force and effect of a treaty or cession between the United States and the territory of Nebraska, still it could not control the present case, or the citizenship of the respondent, for the reason that he was born in Ireland of alien parents and was a subject of the queen of Great Britain and Ireland at the time of the admission of Nebraska as a state. His political relationship to this foreign power could not be made subject to any compact between Nebraska and the United States to which Great Britain was not a party. (Tobin v. Walkinskaw, 1 McAllister, 186.)

The opinion which we hold is supported by other sections of the enabling act. Section 13 provides that the “laws of the United States, not locally inapplicable, shall have the same force and effect within the said state as elsewhere within the United States.” The naturalization laws of the United States were not, and are not, locally inapplicable to the state of Nebraska. These laws were enforced in the state of Nebraska, and, if so, there is no reasonable escape from the proposition that aliens must comply therewith in order to become citizens of the United States.

Section 1 of the enabling act provides “ that the inhabitants of that portion of the territory of Nebraska included in the boundaries hereinafter designated be, and they are hereby, authorized to form for themselves a constitution and state government, with the name aforesaid, which state, when so formed, shall be admitted into the Union as hereinafter provided.” In the title the subject of the act is designated “the people” of Nebraska; in the purview, the “ inhabitants.” We know that the framers of the act, when they used these terms, did not mean all of the people, nor all of the inhabitants, then domiciled in Nebraska. In this connection attention is called to the act of congress of May 30, 1854, usually called the organic act. At the date of its passage there were no people nor inhabitants of Nebraska upon whom said act was designed to operate, but it was those thereafter to become domiciled there for whose benefit the said organic act was designed. Section 5 of said act provides “ that every free white male inhabitant above the age of twenty-one years, w.ho shall be an actual resident of said territory, and shall possess the qualifications hereinafter prescribed, shall be entitled to vote at the first election and shall be eligible to any office within said territory; but the qualification of voters and holding office, at all subsequent elections, shall be such as shall be prescribed by the legislative assembly; Provided, That the right of suffrage and of holding office shall be exercised only by citizens of the United States, and those who shall have declared on oath their intention to become such, and shall have taken an oath to support the constitution of the United States and the provisions of this act.”

The qualifications of voters and of holding office in said territory remained substantially the same as above established by the organic act, at the date of the .passage of the enabling act, and of the actual admission of Nebraska into the Union as a state, the legislative assembly having prescribed no different rules, except upon some points not material to the present inquiry.

When it is borne in mind that the sole purpose of the enabling act was to invite and enable,Nebraska to form for herself a constitution and become admitted into the Union as a state, it is obvious that this invitation would be addressed to those in whom the law had vested the power and the right to put the political power of the territory in motion and to control its action to the accomplishment of the purpose in hand. Who were they but those in whom the elective franchise had been vested by the organic law and wisely left by the “legislative assembly”? The “people of Nebraska,” then, mentioned in the title, and the “inhabitants” mentioned in the first section, are the free white male inhabitants above the age of twenty-one years, actual residents of the territory, citizens of the United States, and those who have declared on oath their intention to become such, and shall have taken an oath to support the constitution of the United States. Why should any other than these have been mentioned or intended? None others were allowed to vote for representatives to form a convention to draft a constitution for the proposed state, nor to vote upon the acceptance or rejection of such constitution as might be formed by such convention. This is made plain by reference to provisions of section 3 of the enabling act, which provides “that all persons qualified by law to vote for representatives to the general assembly of said territory shall be qualified to be elected; and they are hereby authorized to vote for and choose representatives to form a convention, under such rules and regulations as the governor of said territory may prescribe, and also to vote upon the acceptance or rejection of such constitution as may be formed by said convention,” etc.

Persons of foreign birth residing in the territory of Nebraska, who had not declared their intention to become citizens of the United States, and taken an oath to support the constitution of the United States, were as powerless to make a constitution and government of the new state of Nebraska as though they had remained in the country of their birth.

But it is claimed that the invitation of the enabling act was extended to all the inhabitants of the territory, including unnaturalized foreigners, who had neither declared their intention to. become citizens nor taken an oath to support the constitution of the United States, to take part in the formation of a constitution and state government, and they having done so, it is argued that they became citizens of the United States without oath of allegiance to the United States, or of abjuration to their mother country, simply by having taken part in the formation of the constitution and state government; in other words, that they came in with the state. We have seen that this class of persons were not recognized as possessing any political status in the said territory whatever. They could not legally vote at any election, nor were they entitled to hold any public office. The legislative assembly, while possessing the power to confer certain political rights upon this class of persons, never exercised it, but, on the contrary, at its first session enacted a criminal code, section 131 of which provided that “if any person willfully vote who * * * is not a citizen of the United States, or who is not duly qualified from other disability to vote at the place where and time when the vote is to be given ; he shall be fined in a sum not exceeding three hundred dollars or imprisoned in the county jail not exceeding one year.” This law was subsequently amended, and at the date of the admission of Nebraska into the Union as a state it stood as follows: “Sec. 38. Any person who shall vote in this territory * * *\ who is not a citizen of the United States, or declared his-intention to become such, as provided by law, he knowing the same, shall, on conviction thereof, be imprisoned in the penitentiary and be kept at hard labor not less than six months nor more than three years.” (Revised Statutes of Nebraska Territory, 1866, p. 147.)

Can it be supposed that laws would have been kept in force for twelve years denying to foreigners, who had not ■declared their intention to become citizens of the United States, the right to vote, and providing a punishment against them should they exercise such right, if it had been the law that upon the admission of Nebraska as a state all non-declaring foreigners residing in the territory were by the mere force of such admission, and, whether they desired it or not, became full fledged citizens of the United States? Most certainly not. It can be imagined that had the organic act recognized non-declaring foreigners who might be domiciled in the territory then being organized as voters therein and entitled to take full part in Ml its political affairs, or had the legislative assembly thereof, as it was probably empowered to do by such organic act, conferred the right to vote and hold office upon such foreigners, then upon the enactment by congress of a law to enable the “people,” the “ inhabitants,” of such territory to form a constitution and state government, and for its admission into the Union, that these words, the “people” and the “inhabitants” were meant to embrace such foreigners, but where, as in this case, such foreigners had been, throughout the legislation of congress in reference to the territory, and throughout the legislation of the territory itself, denied all participation in the affairs of the territory, we do not think that in the use of the terms congress, intended to invite or enable any to participate in the formation of a constitution and state government who had been thus excluded, but only such as could vote for delegates to a constitutional convention without violating the laws of the territory or subjecting themselves to criminal prosecution.

The view which we have expressed, to the effect that the inhabitants of the territory did not become citizens of the United States by the admission of such territory as a state, is sustained by judicial decisions. In McKay v. Campbell, 2 Sawyer, 125, it appears that McKay was born an alien. He was an inhabitant of Oregon at the time that territory was admitted as a state into the Union, and afterwards claimed to be a citizen of the United States. The court held that he could not claim citizenship except through naturalization, and further held that the treaty of 1846 did not make him a citizen of the United States, and that there was nothing in the treaty that operated as a naturalization of inhabitants. We quote from the opinion: “The plaintiff, being the child of an unnaturalized citizen, and unnaturalized himself, cannot claim to be an American citizen, except upon the single ground that he was born upon the soil of the United States. Nothing that has happened since his birth can add to or take away from the strength of his claim.”. After the birth of the plaintiff McKay, and during his residence in Oregon, that territory had been admitted into the Union as a state, without an enabling act it is granted, but will any one contend that she was for that reason any the less admitted into the Union upon an equal footing with the original states, or that Oregon is not to-day upon an equal footing in all respects with Nebraska? The admission of Oregon as a state, a like event which, it is claimed, made citizens of all aliens domiciled in Nebraska, was thus declared by the court as not adding to the rights of a person born in the allegiance of a foreign power to a claim of American citizenship.

The State v. Primrose, 3 Ala., 546, is exactly in point. The defendant was indicted in the circuit court of Mobile, for a libel; and pleaded in abatement that one of the grand jurors, by whom the indictment was returned, was not a citizen of the United States, but an alien. The juror was born in Ireland and came to Louisiana in 1811, where he remained until after the admission of Louisiana into the Union, and in the year 1814 he removed to the state of Alabama, where he was residing when he served as a grand juror. He had never been naturalized under act of congress, but it was claimed that as he was an inhabitant of the territory of Louisiana when it was admitted into the Union, he thez-eby became a citizen of the' United States. Mr. Justice Ormond, in delivering the opinion of the court says:

“ The question to be determined is, whether the fact that a person was an inhabitant of the territory of Louisiana, previous to its admission iizto the Union, by virtue of the act of congress of the 20th of February, 1811, will constitute such person a citizen of the United States. This act, which was to enable the people of the territory of Orleans to foz-m a constitution and state government, and for the admission of such state into the Union, on an equal footing with the original states, authorizes the ‘ inhabitants ’ of the territory to form for themselves a constitution and state government.

“As the citizenship of the juror is supposed to flow fi-om his being an inhabitant of the territory of Louisiana, at the time of the passage of the act of congress of 1811, previously cited, it becomes necessary to consider the pi-eeise import of a term, from which such consequences are to arise. By the term, inhabitant of a place, or country, we understand one who has his domicile, or fixed residence thei-e, in opposition to one who isa mere sojourner or temporarily resident in the place, or country. (Bouvier’s Law Dic., 504; 1 Dall., 480). It by no means, however, follows, that an inhabitant is a subject or citizen ; a foreigner, permanently resident, is as much an inhabitant as if he wez-e a citizen or subject.

“ By the term inhabitants, therefore, in this act was merely meant the mass constituting the body politic, who were authorized to form a state constitution preparatory to admission into the Union. It cei-tainly was not the intention of congress, either in this or in any of the other acts for the admission of new states into the Union, to do more than to prescribe the terms on which such state might be admitted. That it was not intended by the act to confer citizenship is conclusively shown by the second section of the act prescribing the qualifications of the voters for representatives to the convention which was to form the state constitution. They were required to be free white male citizens of the United States, having resided one year in the territory and paid taxes. Now, if the intention had been that, by the admission of the state into the Union, all the inhabitants became citizens of the United States, there would have been no propriety whatever in confining the elective franchise to those who were then citizens.

“The acts for the admission of Louisiana into the Union does not differ in any important particular from any of the other acts of congress, passed for the same purpose, before and since. The act for the admission of Alabama into the Union is precisely similar, and if the pretension set up is well founded, as the juror was an inhabitant of Alabama before and at the time of its admission into the Union, there would be no necessity to resort to his residence in Louisiana to establish his citizenship, unless the fact that the territory constituting the state of Louisiana was acquired by cession since the formation of the federal government affects the question. But we apprehend that the utmost which could be claimed for the I’esidents of states thus circumstanced would be that they should be placed on the same footing with those residing in states formed from the public domain which belonged to the states at the formation of the federal compact.”

We have carefully examined the two eaxdier cases in Louisiana, U. S. v. Laverty et al., 2 Martin, 733 *, and Desbois’ Case, 3 Martin, 185 *, which .announce a contx-axy doctrine, but we cannot accept the reasoning therein to be sound. These cases assume as an accepted proposition that the admission of a state made the inhabitants thereof citizens of the United States. This assumption being not well grounded in reason, and without judicial precedent, we do not feel bound to follow. It is a matter of common knowledge that aliens residing in the territory of Nebraska, who had declared their intention to become citizens of the United States, completed their naturalization after the state was admitted to the Union, and those who, although inhabitants of the territory at the time, had not then declared their intention to become citizens of the United States, after the admission of the state, respectively, at their several convenience, proceeded to declare such intentions before the proper officers, and after the expiration of the prescribed time, to complete their naturalization in some one of the courts having jurisdiction. The same practice has uniformly prevailed in other states, so far as our knowledge extends. All this would have been unnecessary if the admission of the state into the Union had the effect of admitting all aliens to become citizens of the United States.

Cryer v. Andrews, 11 Tex., 170, Barrett v. Kelly, 31 Id., 476, and Opinions of the Attorneys General, vol. 13, p. 397, are to the effect that all persons who were citizens of the republic of Texas at the date of its annexation to the United States, became citizens of the United States by virtue of the collective naturalization effected by that act. There can be no doubt that by the merger of the republic of Texas in the United States, in 1845, the allegiance of the inhabitants of Texas was transferred to the government of the United States. At the time of the annexation of Texas she was an independent republic, and by the union of the two governments the citizens of Texas became citizens of the United States. But it is evident that such doctrine is not applicable here, for the reason that the territory of Nebraska, at the time it became a state, sustained an entirely different relation to the government of the United States than that of the republic of Texas at the date of its annexation.

It was not supposed by the framers of our present constitution, nor the electors of the state who voted on the question of its adoption or rejection, that the alien inhabitants of the United States, who were in the territory at the date of its admission into the Union as a state, became citizens of the United States by such admission. A citizen of the United States was definitely understood and accepted by everyone to be a person who became such by reason of his birth, or a person of foreign birth who has been duly naturalized under the provisions of the uniform rule of naturalization established by congress. This is clearly the meaning that should be given to the words “citizens of the United States,” as used in section 2 of article 5 of the constitution.

It is alleged in the information, and admitted by the answer that the respondent was an alien by birth. His original status is therefore presumed to continue until the contrary be shown. (Haunstein v. Lynham, 100 U. S., 483.) Sufficient facts are not alleged in the answer to show that he became a citizen of the United States two years prior to the last general election. We are, therefore, forced- to the conclusion that he was at the date of the election ineligible to the office of governor. It is proper to slate in this connection that the facts set up in the answer show that the respondent has for many years honestly believed he was a citizen of the United States, and that his citizenship had never been questioned prior to November last. In holding as we do, that he is not legally entitled to exercise the duties of the office of governor, we are but giving force and effect to a plain provision of our state constitution, which we have no right to disregard or refuse to enforce.

We come now to the consideration of the question, Is the relator entitled to the office of governor? The determination of this point involves the construction of sections 1 and 16 of article 5 of the constitution, which are as follows:

“ Sec. 1. The executive department shall consist of a governor, lieutenant governor, secretary of state, auditor of public accounts, treasurer, superintendent of public instruction, attorney general, and commissioner of public lands and buildings, who shall each hold his office for the term of two years from the first Thursday after the first Tuesday in January next after his election, and until his successor is elected and qualified,” etc.

“ Sec. 16. In case of the death, impeachment, and notice thereof to the accused, failure to qualify, resignation, absence from the state, or other disability of the governor, the powers, duties, and emoluments of the office for the residue of the term, or until the disability shall be removed, shall devolve upon the lieutenant governor.”

The provisions of the first section are plain and unambiguous. It provides that the governor shall hold his office for two years, “ and until his successor is elected and qualified.” If section 1 stood alone it could not be successfully disputed that it was not only the privilege, but the duty of the governor to hold the office until his successor shall be duly elected and qualified. (People v. Osborne, 7 Col., 605; Tappan v. Gray, 9 Paige, 506; People v. Bissell, 49 Cal., 407; People v. Whitman, 10 Id., 38; State v. McMullen, 46 Ind., 307; State v. Lusk, 18 Mo., 333; Commonwealth v. Hanley, 9 Pa. St., 513; State v. Jenkins, 43 Mo., 261; State v. McMillen, 23 Neb., 389; Carr v. Wilson, 32 W. Va., 419.)

Under the provisions of section 16, quoted above, the duties of the office of governor devolve upon the lieutenant governor in certain contingencies, among which are the failure of the governor elect to qualify, and disability of the governor. The words “ other, disability,” as used in the section, have no reference to the ineligibility of the person to be elected to the office, but were intended by the framers of the constitution to cover any disability of the governor not specifically enumerated in the section, occurring after the commencement of his term of office. The failure to elect a governor, on account of the ineligibility of the person receiving the highest number of votes for the office, is not a disability of the governor.

This section also provides, in effect, that in case the person elected governor fails to qualify, the lieutenant governor shall act. By “failure to qualify” is meant failure to give the bond and take the oath of office required by the constitution. It was intended to apply to a case where a person possessing the constitutional qualifications to hold the office has been elected but does not qualify. It cannot be said that there has been a failure to qualify where no person has been elected. This construction gives effect to the language of section 1 of article 5 of the constitution, •which provides that the governor shall hold his office “until his successor is elected and qualified.” When there is no person elected, the governor holds over. It is a familiar rule governing the construction of a constitution that effect, if possible, must be given to all its provisions.

A similar question was decided by the court of appeals of Virginia in Ex parte Lawhorne, 18 Gratt., 85. The report of that case shows that Francis Pierpont was elected and qualified as governor of that state for the term of four years from the 1st day of January, 1864. On the 13th day of January, 1868, no successor to him having been elected or qualified, Governor Pierpont granted a full and immediate pardon to James Lawhorne, who was then confined in the penitentiary under a sentence for grand larceny. The superintendent of the penitentiary refused to release him on the ground that Pierpont’s term of office had expired on January 1, 1868. Lawhorne applied to the court for a writ of habeas corpus.

Section 22 of article 6 of the constitution of Virginia provides that “judges and all other officers, whether elected or appointed, shall continue to discharge the duties of their respective offices, after their term of service have expired, until their successors are qualified.”

Section 1 of article 5 of that constitution fixes the term of governor at four years, commencing on the first day of January succeeding his election, and makes him ineligible to the same office for the term next succeeding that for which he was elected.

Section 8 provides for the election of a lieutenant governor at the same time, and for the same térm as the governor.

Section 9 provides that “ In case of the removal of the governor from office, or of his death, failure to qualify, resignation, removal from the state, or inability to discharge the powers and duties of the office, the said office, with its compensation, shall devolve upon the lieutenant governor; and the general assembly shall provide by law for the discharge of the executive functions in other necessary cases.”

The court held that the constitution made it obligatory upon Pierpont to discharge the duties of the office of governor until his successor was qualified, and that the pardon granted by him was valid.

It is insisted by counsel for the respondent that Thayer’s term of office expired when Boyd was elected and qualified. The proposition assumes the question in dispute, Was Boyd, duly elected? The inquiry is not whether he received a plurality of votes, but did he have the qualifications to be elected? We have already given a negative answer to this. Elected, as used in the constitution, means the choosing of a person eligible to be chosen.

It is argued by counsel for the respondent that the relator is not entitled to hold the office because it does not appear that he requalified within ten days after the time when his successor should have qualified.

Section 17, chapter 10, Comp. Stats., relating to “bonds and oaths,” reads as follows:

“ Sec. 17. When the incumbent of an office is re-elected or re-appointed he shall qualify by taking the oath and giving the bond as above directed; but when such officer has had public funds or property in his control, his bond shall not be approved until be has produced and fully accounted for such funds and property; and when it is ascertained that the incumbent of an office holds over by reason of the non-election or non-appointment of a successor, or of the neglect or refusal of the successor to qualify, he shall qualify anew within ten days from the time at which his successor, if elected, should have qualified.”

Section 5 provides that the official bonds and oaths of all officers elected at a general election shall be filed in the proper office on or before the first Thursday after the first Tuesday in January following the election.

Section 15 provides in substance that if a person elected or appointed to an office fails to qualify within the time provided by law, his office shall, ipso facto, -become vacant and the vacancy shall be filled by election or appointment.

The provisions of section 15 were not intended by the legislature to apply to a case where the incumbent of an office holds over on account of the failure to elect a successor, but have reference to cases where the person elected to a public office has never taken the oath and given the bond required by law, and who has never entered upon the discharge of the duties of the office. Hold-over officers are governed and controlled by section 17 above quoted. It requires such an officer to qualify anew within a specified time, when it is ascertained that he holds over by reason of the non-election or non-appointment of a successor, or when the successor fails to qualify. Ascertain is “to find out or learn for a certainty, by trial, examination or experiment.” How could Thayer determine that no successor was elected? The returns of the election at which a successor was to be chosen showed that the respondent received a plurality of the votes. Whether ho was elected depended upon whether the respondent was eligible to be elected. That question could be determined only by judicial inquiry, and when, upon trial, it is ascertained that the relator is entitled to hold over on account of the ineligibility of the defendant, the relator is required to requalify. This construction also gives effect to section 711 of title 23 of the Code of Civil Procedure relating to proceedings by quo warranto, which provides that “If judgment be rendered in favor of such claimant, he shall proceed to exercise the functions of the office, after he has qualified as required by law.”

It follows that the answer fails to state a defense to the information and the demurrer is sustained. A judgment of ouster must be entered against the respondent.

Judgment, ok ouster.

Cobb, Ch. J., concurs.