USA > Nebraska > Douglas County > Omaha > History of the city of Omaha, Nebraska > Part 30
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The attorneys for Governor Boyd had meanwhile gone before the Supreme Court with a petition for a peremptory writ of mandamus upon Speaker Elder to compel him to canvass the returns. This was granted and turned over to the sheriff of Lancaster County, who took a strong posse and proceeded to the assembly hall. Admission being denied them, the officers promptly broke in the main doors, and as promptly served the writ upon Speaker Elder. Another recess was then taken and a conference held, which resulted in Speaker Elder's proceeding to discharge his duty. The canvass of the returns was completed at 5:10 P. M., Thursday, January 8th, Speaker
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HISTORY OF THE CITY OF OMAHA.
Elder declaring that " for Governor, James E. Boyd has received the highest number of votes, and is therefore duly elected and qualified as Governor."
Governor Boyd immediately proceeded to the Supreme Court chamber, where Judge Cobb administered the oath and approved his bond of $50,000, and the most exciting legislative episode in the history of the State was terminated.
While these exciting events were trans- piring in the legislative halls, proceedings as revolutionary were being enacted in the ex- ecutive department. John M. Thayer, whose term as Governor ceased when his successor had been formally declared elected and sworn in, announced that he would not vacate the executive apartments in the cap- itol building, asserting that Boyd was not legally Governor; that no election had taken place; and that he would, under the constitution, hold the office until his succes- sor was chosen legally. Governor Boyd, accompanied by his attorney, called at the executive office, around which Thayer had placed a cordon of militia. He was per- mitted to enter. Thayer and his attorneys then formally declared that they would not surrender the apartments. Governor Boyd retired, and Thayer remained in the office all night under guard to prevent a surprise.
The other State officials, who had been declared simultaneously elected with Gov- ernor Boyd, promptly recognized him as the real Governor, and, as they constitute the State board of public lands and buildings, they assembled as such board and speedily supplied Governor Boyd with other apart- ments, which they officially designated the " executive offices." Governor Boyd was installed in there, the federal authorities, mail carriers, janitors, etc., recognizing him as the Governor, bringing him the execu- tive correspondence, etc.
There were Indian troubles on the fron- tier at the time, and Governor Boyd ap- pointed General Victor Vifquain his adju-
tant general, and placed him in charge of the militia department. General Vifquain promptly cleared the militia out of the capi- tol and ordered them to report for duty at Rushville, the center of the Indian troubles.
Meanwhile Thayer and his attorneys had applied to the Supreme Court on Friday, January 9th, for a writ of quo warranto to compel Boyd to desist from acting as gov- ernor. Leave to file the petition was not granted until Tuesday, the 13th. Judge Cobb, C. J., in making the ruling, said:
" Last Friday morning application was made to file information in the nature of a quo warranto by John M. Thayer against James E. Boyd. We have been given an opportunity for consultation and considera- tion of this matter. But, as time is passing, and these matters are of great importance to the parties in court, as well as to the people generally, we have concluded, as a mere matter of form and proceeding, and as a matter of notice, as well as jurisdiction, to indicate that a summons may be issued, re- turnable according to the statutes govern- ing the issuance of summons in the district court here. And we have determined in con- sultation that I should say that, if it should appear at any time in the course of these proceedings that the person who was elected Lieutenant-Governor at the last election should desire to intervene in this proceed- ing, in view of a decision in a certian way as to the eligibility of the present incum- bent of the executive office, that the Court will allow such intervention, and, further- more, while it may seem somewhat out of place that what I am about to say should come from this place, we have deemed it ad- visable that it should be said that, during the pendency of these proceedings, so far as the matter may ever be decided by this Court, unless we should be advised differ- ently from what we now are, that the rela- tor will lose nothing by a quiet and orderly submission to the present order of things growing out of the recognition of James E.
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THE LEGISLATURE RECOGNIZES GOVERNOR BOYD.
Boyd as the legal Governor, as now recog- nized by this Court and all departments of the State government."
Despite this plain appeal to Thayer to vacate the rooms he was occuping in the capitol, he refused to surrender; so on the following day the board of public lands and buildings made a formal demand upon him to leave. At 11 o'clock the next morn- ing, Thursday, January 15th, Thayer, under this order, vacated, and Governor Boyd was promptly installed.
Some of the Alliance leaders in both branches of the Legislature were still dis- posed to refuse recognition to Governor Boyd, pinning their faith to the contest, which they expected to result in displacing Boyd with Powers. On Friday, January 16th, however, a motion was passed in the Senate, by a vote of fourteen yeas to thir- teen nays, recognizing Boyd as Governor.
Monday, January 19th, John M. Thayer, by his attorney, filed an affidavit of notice of application for a restraining order on January 29th, claiming in the affidavit that he (Thayer) had been unlawfully ejected from the Governor's office by one James E. Boyd, etc. When the 29th arrived, the ap- plication was not called up, it being regarded as ridiculous.
Thursday, January 22d, the Supreme Court decided that the House having re- fused to recognize Governor Boyd, all joint proceedings must be annulled until resolu- tions, bills, etc., are approved by the Governor.
Thayer delivered his closing message to the Legislature, Thursday, February 5th; a resolution having been passed, the House, by a vote of fifty-four to forty-six, decided to recognize Boyd as Governor that day. The message of Governor Boyd was read to both Houses the following day.
Monday, February 16th, Governor Boyd's attorneys filed a motion to dismiss the quo warranto proceedings begun by Thayer. Accompanying the motion was a demur-
rer, setting forth that Thayer, not being a party in interest, was not concerned in the citizenship question. This motion was argued before the Court on Wednesday, March 4th, and the following day a decision was handed down overruling the demurrer and fixing Tuesday, March 16th, as the date when Governor Boyd must answer to question of citizenship.
Thursday, March 12th, the case was argued before the Supreme Court, the coun- sel for Governor Boyd making a splendid showing. Counsel maintained:
First. That the Court has no jurisdiction to determine this contested election.
Second. That Thayer is not eligible.
Third. That James E. Boyd is a citizen of the United States as fully as any native born citizen, not only since he took out the papers on the 16th of December, but ever since the year 1867, when the State of Nebraska was admitted to the Union.
Arguing the latter vital points, his counsel held in these words:
" I assert that James E. Boyd is a citizen of the United States. It is conceded by all that James E. Boyd is competent and capa- ble under the laws of the United States to become a citizen without any act on his own part. It does not come under the cate- gory of those who have an act affirmatively to perform. When he was a boy of nine years the constitution was such that it was competent for Mr. Boyd to become a natural- ized citizen without any affirmative act on his part. A great many rights are given to persons as citizens after they have taken out their first papers. The rule has been adopted that a person who has taken out his first papers is entitled to the protection of the Government, and it has never been ques- tioned, unless under some treaty between this Government and the original country from which the party came. But this is not the point I was going to make. Let me refer to another matter. They say in our answer that we state on information and belief that
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HISTORY OF THE CITY OF OMAHA.
Joseph Boyd took out his papers. 'Why did you not name the court?' they say. The information that came to me was that Joseph Boyd's vote was challenged, and that he qualified himself-that was after he took out his first papers; that some of the records of the court are burned. These are matters that we ascertained, and I would not permit it to be put in that he had done it, but it was our information and belief. Joseph Boyd is an old man nearly eighty years old to-day. If he took out his final papers, it was nearly forty years ago, and he might have forgotten whether he had taken them out or not. He supposed he had. The Supreme Court of the United States has de- cided that it is not necessary to have a judge of the court admit a person to citizen- ship. They say, 'Why did you take out your papers on the 16th of December?' There was a question about these matters, and, as Mr. Boyd was elected Governor of this State, he wanted to place himself in a position that there would be no question about his citizenship at the time that he entered upon the duties of his office, although we concede that that may have no bearing upon his eligibility ; but at least he is a citizen now, and has been a citizen beyond question from the time that he took out his papers. That is the reason that this was done. I will venture the assertion that there are thousands of instances where the papers are taken out the second time. They tell us there are only two ways of acquiring citi- zenship, and that is naturalization and native born. I say no. There are very many ways of acquiring citizenship. It may be by treaty, by general law, as has been in this case. The position I take, in my opinion, cannot be gainsaid. It is incontrovertible. On the admission of the State of Nebraska into the Union in 1867, every bona fide inhabitant of that territory became, by that union, a citi- żen of the State of Nebraska and of the United States. The organic act providing for the organization of the territory pro-
vided, among other things, for the qualifica- tion of voters, and the only thing that can be urged against it is that there is the quali- fication with respect to voters, and it was not intended that any other persons should be citizens. After the organic act it was competent for the Legislative Assembly to adopt any rules which it saw fit, with respect to the eligibility of persons to hold office and vote - to give the right of fran- chise to residents of one, two, three months, or six years.' The right to citizenship and the right to vote have nothing in common, as a general thing. Persons may be citizens and not have the right to vote, and vote and not be citizens. The restriction with respect to the elective franchise has nothing to do with the question of citizenship. All women born or married here are citizens. The children are citizens. The question of the restriction of the elective franchise has nothing whatever to do with the question of citizenship. Under the act of 1864 this State shall be admitted on an equality with the original thirteen States.
When Massachusetts was formed into a State, the people of the State of Massachu- setts, every bona-fide inhabitant of the State, were clothed with the inalienable right of citizenship. The question of the admission of the older States has exactly the same conditions, and it is the inalienable right of all parties in the territory to become citi- zens. I assert that every State that comes into the Union, leaving out of consideration the condition of the rebel States, comes in with every bona-fide inhabitant as a citizen of that State, on an equality with the in- habitants of the original States. Congress, by the enabling act, called upon the actual inhabitants, the men out upon the frontier, to form a government for themselves. They promised them if they would do so accept- ably to Congress, they should be admitted into the Union, in conformity with the rights of the original States, in all respects whatsoever. The right of citizenship, under
OMAHA AS SEEN FROM EAST SIDE OF MISSOURI RIVER-1889.
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OMAHA & GRANT SMELTING AND REFINING WORKS.
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TRIAL IN THE STATE SUPREME COURT.
the constitution of the United States, and the constitution and laws of the several original States, was a right not conferred by the original colonies upon the organization of the several States, nor was it a right con- ferred by the constitution of the United States, nor any laws enacted thereunder; but the fact is that citizenship in the original colonies, upon organization into States, was one of the inalienable rights of man as a member of the society organizing a civil com- munity, a State, and every State was an or- ganization of the inhabitants thereof. And the Nation was an organization of the in- habitants thereof, as well as the constituted States. And, upon the formation of the gen- eral government, every State that was ad- mitted into the Union carried with it the right of citizenship to every bona-fide inhab- itant of the several original States, not by virtue of any law, but by virtue of the in- alienable right of man in his association with others to form a government. There- fore, every bona-fide inhabitant of the orig- inal States, on the admission of such States into the Union, became ipso facto citizens of the United States. Every new State that has been admitted into the Union has been admitted into all the rights, privileges and immunities awarded to the original States. And I claim for Nebraska, as a constituent member of the great Union, and for every one of its bona fide inhabitants, the same rights granted by the enabling act of Con- gress that belonged to the inhabitants of Massachusetts, New York, South Carolina, and every other original State, making every one of our bona fide inhabitants citizens, upon admission to the Union. To deny us this right is to deny us that grand right of equality with the other States.
" After the war with England, of 1812, a law was enacted in the Territory of Orleans, being a portion of the Louisiana grant, .pro- viding that all foreigners should become naturalized within a certain time, under the
laws of Congress, providing a uniform rule of naturalization, and on failure to do so they should be considered alien enemies and liable to arrest and punishment. After the admission of the Territory of Orleans into the Union, in 1812, as the State of Louisiana, a large number of persons, claiming to be British subjects and aliens, were arrested as aliens who had failed to become naturalized. Several of them were discharged by the Su- preme Court of the State of Louisiana, on the ground that they were not aliens, though they had never been naturalized under the naturalization laws of Congress. So great was the excitement concerning the matter, that several cases were transferred to the Federal Court to obtain the opinion of that tribunal on the question of citizenship. The United States Court held that, as these persons, though never naturalized under the naturalization laws of Congress, were bona fide inhabitants of the Territory of Or- leans at the time the territory was admitted into the Union as the State of Louisiana upon terms of equality with the original States, which was the exact language of the admission act of the State of Nebraska, they became, the Court declared, by that act of admission, ipso facto citizens of the United States and of the State of Louisiana."
The Court reserved its decision until after the Legislature adjourned, it being openly charged that the majority of the Court, being in sympathy with the railroads, was holding the decision over the Governor's head as a club to intimidate him against approving any legislation inimical to the railroad in- terests. It isa fact that the railroad regu- lation measure, known as the "Newberry Bill," did pass both houses and was vetoed by Governor Boyd, April 3, stirring a furi- ous storm of indignation among the people of the State, and it was stated that, the ev- ening previous to affixing his veto, the syl- labus of an opinion by one of the justices was shown him. It was favorable to the
13
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HISTORY OF THE CITY OF OMAHA.
Governor, but the judge, who it was alleged wrote it, cast the balance of power in the Court against him.
Tuesday, May 5, 1891, just one month after the adjournment of the Legislature, the Supreme Court handed down a decision adverse to Governor Boyd. The following is the syllabus:
State ex rel. John M. Thayer vs. James E. Boyd. Quo warranto judgment of ouster.
The Supreme Court has jurisdiction to entertain proceedings by information in the nature of quo warranto, instituted for the purpose of determining the rights of persons claiming the office of Governor.
Second. Under the provisions of Section 2, Article IV, of the constitution, no person is eligible to the office of Governor who has not been a citizen of the United States, and of this State, for at least two years next pre- ceding the election at which such officer is to be cliosen.
Third. Where a plurality of votes are cast for a person for a public office who is ineli- gible, the election is void.
Fourth. Under the fourth section of the act of Congress, entitled "An Act to Estab- lish a Uniform Rule of Naturalization," ap- proved April 14, 1802, the child of an alien under twenty-one years of age, though born in a foreign country, becomes a citizen by the naturalization of his parent, if dwelling within the United States at the time the parent is admitted to citizenship, but it does not have that effect if the child is over twenty-one years old at the time the parent is naturalized.
Fifth. The order of a court admitting an alien to citizenship is a judicial act, in the nature of a judgment, and can be proved only by the record.
Sixth. The fact that an alien has, for many years, voted at the elections held in this State, and filled important public offices, does not establish that he is a citizen of the United States.
Seventh. Where an alien is naturalized
under the naturalization laws, his citizenship dates from the time the order of the Court is made admitting him to citizenship.
Eighth. The alien inhabitants of the Terri- tory of Nebraska, at the time of its admis- sion as a State, did not become citizens of the United States by virtue of the act of Congress admitting the State into the Union.
Ninth. The words, " Citizens of the United States," as used in Section 2 of Article IV of the State constitution, are construed to mean a person who is an American citizen by birth, or a person of foreign birth who has been duly naturalized under the provis- ions of the uniform rule of naturalization established by Congress.
Tenth. Under Section 1 of Article V, of the constitution, a person elected to the office of Governor is entitled to discharge the duties and receive the emoluments of the office, for the term of two years, from the first Thursday after the first Tuesday in January, following his election, and until his successor is duly elected and qualified.
Eleventh. When the person receiving the highest number of votes for the office of Governor is ineligible, under the constitu- tion, to be elected, the then acting Governor holds over.
Twelfth. The duties of the chief executive office of the State devolves upon the Lieu- tenant-Governor, in certain contingencies, among which are the failure of the Govern- or-elect to qualify, and the disability of the Governor. It cannot be said that there has been a failure to qualify where no person has been constitutionally elected to the office.
Thirteenth. The words," Other disabilities of the Governor," appearing in Section 16, Article V, of the constitution, have no ref- erence to the ineligibility of the person to be elected. But these words cover any dis- ability of the Governor not specifically enumerated in the Section, after the com- mencement of his term of office occurring.
Fourteenth. Held, that, when the non-elec- tion of a person to a public office is ascer-
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SYLLABUS OF THE UNITED STATES SUPREME COURT
tained by the proceedings in quo warranto, the person entitled to hold over must then re-qualify.
The opinion was written by Judge Cobb, Judge Norval assenting, Judge Maxwell dissenting, holding that, when a Territory is admitted to Statehood, the enabling act so operates as to make every resident of the Territory a citizen of the State, just the same as though it was a foreign territory acquired by the United States.
The opinion was handed down at 4:30 in the afternoon, and the Court immediately adjourned. At 5:15 Governor Thayer en- tered the executive chamber and demanded that the office be turned over to him, under writ of ouster, which had been procured to head off any motion for stay of proceedings, pending an appeal to the Federal Supreme Court. Governor Boyd quietly yielded the Office to him, and the great wrong was accomplished.
Governor Boyd's attorneys at once began to prepare an appeal to the Supreme Court at Washington, and on Friday, May 15th, Jus- tice Brewer, for the Court, granted the appli- cation for a bearing on a writ of error.
When the Supreme Court met, after the summer recess, application was made for its advancement on the docket, and it was granted, the arguments being listened to by the full bench on Tuesday, December 8th.
On Monday, February 1, 1892, the United States Supreme Court handed down its opinion in the case, fully sustaining the position of Governor Boyd's attorneys. Below will be found the syllabus of the Court:
BOYD V. STATE OF NEBRASKA ex rel. THAYER. February 1, 1892.
JURISDICTION OF SUPREME COURT - FEDERAL QUESTION - CONSTITUTIONAL LAW -NATU- RALIZATION.
1. A decision, by the Supreme Court of a State, that a person, born in a foreign coun- try, and claiming to have become a citizen of the United States by the operation of its
laws and constitution, is not such a citizen, and therefore not eligible to the office of Governor, under the requirements of the State constitution, involves the denial of a right or privilege claimed under the consti- tution and laws of the United States, and is reviewable in the Supreme Court thereof. Field, J., dissenting.
2. In a proceeding to oust a person from a State office, on the ground that he is not a citizen of the United States, a demurrer to an answer which set up facts alleged to show a naturalization necessarily presents a fed- eral question, which is reviewable in the United States Supreme Court. Field, J., dissenting.
3. Congress has plenary legislative power over the Territories of the United States and their inhabitants, and, upon the admis- sion of a Territory into the Union, may, if it so desires, effect a collective naturaliza- tion of its foreign born inhabitants as citi- zens of the United States.
4. When a State is admitted into the Union upon an equal footing with the origi- nal States, all residents thereof, who are en- dowed by Congress with political rights and privileges, or who, with the consent of Con- gress, are permitted to participate in the formation of the new State, become citizens of the United States by adoption, even though, being foreigners, they have never complied with the requirements of the naturalization laws.
5. The Nebraska Enabling Act (13 U. S. St. p. 47) declared that all persons qualified to vote for Representatives of the Territor- ial Legislature should be entitled to vote upon the acceptance or rejection thereof, and should be eligible to election as members of the convention. By the existing laws of the Territory, foreigners who had declared an intention to become citizens were enti- tled to vote at elections, and this provision was carried into the constitution of the new State, as ratified by Congress. Held that, upon the admission of the State into the
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HISTORY OF THE CITY OF OMAHA.
Union, all persons of this class became citi- zens of the United States.
6. When a foreigner takes the oath declar- ing an intention to become a citizen of the United States, his minor sons thereby ac- quire an inchoate status as citizens; and, if they attain majority before their father com- pletes his naturalization, that status is capa- ble of being converted into complete citi- zenship by other means than the direct application provided for by the naturaliza- tion laws.
7. Where a foreigner takes the oath declar- ing an intention to become a citizen, while his son is yet a minor, and the son, on com- ing of age, votes at an election under the erroneous belief that his father has com- pleted his naturalization, and soon after- wards removes to a distant territory, and for many years endures all the privations and dangers of frontier life, votes at elec- tions, is elected to office, takes an oath to support the constitution of the United States, and takes part in the formation of a State constitution and government, he is entitled to the benefit of his father's declaration of intention in the same manner as if he him- self had made the declaration; and, where the Territorial laws and the new State con- stitution, with the sanction of Congress, con- fer political privileges upon foreigners who have made such declaration, he will be con- sidered as belonging to that class, and on the admission of the State will become a citizen of the United States.
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