80 N.J.L. 535 | N.J. | 1910
The opinion of the court was delivered by
This is an application by a citizen and taxpayer of Camden for leave to file a quo warranto against a member of the common council. The ground relied upon is that the defendant is not a citizen of the United States. The proof is that the defendant was born in England in 1853; his father came to the United States in the winter of 1853-1854, leaving the defendant with his grandparents in England. The father resided in the west for some years, but returned to Vine-land, in this state, shortly before 1867, when the respondent, then fourteen years of age, came to this country and joined him there. The father, as he stated to the respondent, had been naturalized and had voted in the west. It is proved that he voted and held public office in Atlantic county, in this state. The respondent has voted since 1876, has been a candidate for public office, and has twice been elected to the common council of the city of Camden, and has served in that body. The question presented to us is whether, under these circumstances, we ought to grant leave to proceed by quo warranto.
We have no doubt that the facts stated present a question of fact as to whether or not the respondent is a citizen. In a proper case that fact ought to be submitted to a juiw. The application for leave to file a writ of quo warranto, when made on behalf of a citizen or taxpayer, is addressed to the discretion of the court. Mitchell v. Tolan, 4 Vroom 195. Upon a consideration of the case, we are of opinion that no public good would be served and harm might be done by the delay and uncertainty incident to a trial of the question before a jury, and we are influenced in that result by the view that upon such a trial the verdict ought to be in favor of the respondent.
In People v. Pease, 27 N. Y. 45 (at p. 63), the Court of Appeals of New York, in reviewing a charge of the trial judge in a quo warranto case, held that in the absence of evidence tending to show that a man had ever been naturalized, and upon evidence that he was born in France and had voted, it was proper to charge that the legal presumption was that he
It was subsequently held in Fay v. Taylor, 63 N. Y. Sup. 572, that proof that decedent, who was an alien by birth, came to this country in 1865, lived here until his death in 1897, participated in elections and held a liquor tax certificate, which could lawfully be issued only to a citizen, was sufficient to show prima fade that he had been naturalized.
It is urged, however, that in this ease the respondent not only admits that he was an alien by birth, but that he had never been naturalized, and relies upon, the naturalization of his father, which, it is said, could not, under the law, operate in his favor under the circumstances of the case. This necessitates the examination of the law upon this subject. By the act of 1802, which now appeal's as section 2172 of the United States Eevised Statutes, it was enacted that the children of persons who had been duly naturalized under any law of the United States, 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. It was, at one time, questioned whether this act applied to cases of naturalization after its date—that is, whether it was prospective in its operation or not. Chancellor Kent seems to have doubted the propriety of holding that the act was prospective, for he saj^s (2 Kent Com. 51, 52) : “There is color for the construction that it may have been intended to be prospective and to apply as well to the case of persons thereafter to be naturalized as to those who had previously been naturalized.” In a note added in a later edition, he concedes that the act had since been adjudged to be prospective. West v. West, 8 Paige 433. And this seems to be now settled law. It was so held by Mr. Justice Harlan, sitting at the Circuit in United States v. Kellar, 13 Fed. Rep. 82, and was assumed in Boyd v. Nebraska, above cited.
This view is not sufficient to dispose of the present case, for even though the act is prospective, it applies only to children, “if dwelling in the United States,” a necessaiy qualification in view of the fact that if the children were not dwelling in