Statement of the Case.

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

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

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

"The respondent further alleges, on information and belief, that prior to October, 1854, his father did in fact complete his naturalization in strict accordance with the acts of Congress known as the naturalization laws so as to admit and constitute him a full citizen of the United States thereunder, he having exercised the rights of citizenship herein described, and at said time informed respondent that such was the fact; that when his father applied to be registered in Ohio in October, 1890, under a new law, he was required to produce his citizenship papers, and being unable to find all thereof, he appeared before said court of common pleas of Muskingum County, at the October term thereof, 1890, and the proceedings described in the 9th paragraph of the information were had as therein set

Statement of the Case.

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

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

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

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

Statement of the Case.

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

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

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

"In 1880 respondent was elected and acted as president of the city council of the city of Omaha.

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

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

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

Statement of the Case.

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

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

"Respondent further says that in 1849 it was his bona fide intention to be a citizen of the United States, and that he then renounced and abjured forever all allegiance and fidelity to every foreign prince, potentate, state or sovereignty whatever, and particularly the Queen of Great Britain and Ireland; that during all the time since he has behaved as a man of good moral character, attached to the principles of the Constitution of the United States and well disposed to the good order and happiness of the same, and all said time has absolutely renounced and abjured all allegiance and fidelity to every foreign prince, potentate, state or sovereignty, and particularly the Queen of Great Britain and Ireland.

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

Statement of the Case.

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

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

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

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

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