7 Neb. 469 | Neb. | 1878
This is a motion for a peremptory writ of mandamus, to be directed to the defendant, county judge of Lancaster county, “ commanding him to allow the making and filing the declaration of intention of the relator to become a citizen of the United States.” The question in the case is, whether the county court is competent to receive .an alien’s preliminary declaration to become a citizen.
Section 2165 of the Revised Statutes of the United States provides that an alien who desires to become a citizen of the United States “ shall declare on oath before a circuit or district judge of the United States, or a district or supreme court of the territories, or a court of record of any of the states, having common law jurisdiction and a seal and a clerk,” etc. Under this law the essential requisites to confer jurisdiction in such case upon a state court are, that it must have common law jurisdiction, a seal, and a clerk.
It may be conceded that the county courts of our state have common law jurisdiction to some extent, and a seal; but has it a subordinate officer known in law as the clerk of a court, and within the meaning of the act of congress? Several authorities were referred to by counsel of the relator in support of the motion, but in each of those cases the only question raised and discussed seemed to be whether the court had common law jurisdiction in the sense in which the term is employed in the act of congress, and no point seems to have been made in reference to a clerk of the court.
In Ex parte Conner, 39 Cal., 98, it appears that the “ county courts are courts of record, having seals and clerks,” and the only question in the case was “ whether they have common law jurisdiction in the sense in which that term is employed in the act of congress.”
But in Ex parte Gladhill, 8 Met., 171, which seemed to be most relied on by relator’s counsel, Shaw, C. J., remarked that “ it might be urged that the act of con ■ gress intended to limit the power to a court having a separate recording officer whose act should authenticate its doings, and that the signature of a separate officer might add something to the credit due to an authenticated transcript. On the other hand it might.be urged with some plausibility that if the judge is specially vested by law with the clerical authority, the court has a clerk within the letter and equity of- the statute.” These remarks are in the nature of suggestions in the case, and cannot be said to be even dicta, and therefore cannot have any force as authority. But the judge further says, that in that case “the doubt is removed by the act of 1838, which provides that the justice of the police court should have a clerk, who shall be sworn * * * who is a separate and independent officer.”
But in the State v. Whittemore, 50 N. H., 251, the question- raised in the case at bar was directly involved, and in this case it was held that a court without any clerk, distinct from the j udge of such court, is not a court “ having a clerk ” within the meaning of the act of congress, and that such court is not competent under the act of congress to naturalize aliens. Smith, J., who delivered the opinion of the court, cites the case of Michael Gregg, 2 Curtis, C. O. R., 98, which is to the same effect, and was decided by Judges Curtis and Sprague in the United States circuit court for the district of Massachusetts in October, 1854.
It was, however, contended by relator’s counsel that under the act of February 15, 1877, the county commissioners of Lancaster county were authorized to and did furnish the county judge with a clerk or assistant. This act is entitled “ an act to regulate the fees of county judges, county clerks, sheriffs, and county treasurers.” It provides that where the fees of each county judge and county clerk shall in the aggregate exceed fifteen hundred dollars, and when the fees of each sheriff and county treasurer shall exceed two thousand dollars per year, such officers shall pay such excess into the treasury of the county in which they hold their respective offices; and then follows a provision which enables the county commissioners, under certain circumstances, to furnish the county treasurer with nec
In our opinion the county court has no jurisdiction over applications for naturalization of aliens, and therefore the writ of mandamus must be
Denied.