dissenting.
Leave was given the relator to file an information in his own behalf in an action of quo warranto, to determine his right to continue in the office of governor of the state of Nebraska from the first Thursday after the first Tuesday in January, 1891, for the period of two years, upon the alleged ground that the defendant was not a citizen of the United States for two years prior to the election in November, 1890, and, therefore, not eligible to the office of governor of the state.
The court in making the order allowing the relator to file his information, qualified it so as to permit the lieutenant governor to intervene should the court, on the final determination of the case, find that the defendant was not eligible to the office, and it would thus become necessary to determine who should succeed him, whether the relator or the lieutenant governor.
In his answer the defendant “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 respond*736ent 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.
“Respondent admits the allegations of the first, second,, third, fourth, and fifth paragraphs of the information, except as hereinafter shown.
“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; 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 non-appointment of a successor, he shall qualify anew within ten 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 dollars, conditioned for the faithful performance of the duties of the office, as by law required; 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; that the said John M. Thayer has never since the 8th day of January, 189 1, qualified anew as governor of the state of Nebraska; that he has not since that *737date 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 hold 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 indiixvliv, occupied or possessed the same, or assumed, or pretended to assume, to perform any of the functions thereof, and 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 d& la red 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 day 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 its duties; that he has been recognized so to be by all of the departments and officers of the state government; that the said John M. Thayer ceased *738to be the incumbent of said office in law and in fact with the expiration of the 8th day of January, 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 1844, 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 5, 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; 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 *739.aforesaid, it was his bona fide intention to make the United .States his permanent residence; that at that time he did in fact disclaim, renounce, 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 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 offi-cers of the state and federal governments the same as a native-born citizen of the United States and of the state -of Ohio; that about the year 1870 said Joseph Boyd was ■elected to the office of justice of the peace in said Muskin.gum 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 bas 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; 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 bas 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; 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 *740herein 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 that event Unnecessary; 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 Port 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 *741being 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 o/ 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.
*742“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.
“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; that for over thirty-two years 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 Stafes, and that it is not competent for tills 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; 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; 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 alii 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 times has absolutely renounced and abjured all allegiance and fidelity to every foreign prince, potentate, state, or sovereignty, and partiou*743larly the queen of Great Britain and Ireland; that after his 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, 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 said 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 ninth, tenth and eleventh 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 expended, and for such other and further relief as may be just and proper.”
The relator demurred to the answer upon the ground that the facts stated therein are not sufficient to constitute a defense to the information. In the argument on the demurrer the defendant contends that the remedy by contest is exclusive, and therefore the court has no jurisdiction.
*744In State v. Marlow, 15 O. St., 114, the supreme court of Ohio, in construing the constitution of that state and a statute passed in pursuance thereof in regard to contests, held that the remedy provided by statute was exclusive, and therefore an information in quo warranto would not lie. A few other cases to the same effect may be found.
We are of the opinion, however, that under our constitution the remedy by contest is not exclusive, and therefore that an information in a proper case may be maintained.
It will be observed that it is alleged in the answer that the relator fully 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 the same.
It is a fact well known that about the 20th of January, 1891, in order to prevent a scandal injurious to the good name of the state by having two persons endeavoring to act as governor thereof, the court, through its chief justice, stated to the relator that Governor Boyd was the acting governor to be recognized as such until the determination of this suit and that the relator would lose nothing by quietly leaving the building, and in case it should eventually be found that he was entitled to the office, his rights would be respected and enforced. It does not appear however, from the allegations, the precise date at which it is alleged the relator surrendered the offite, etc. For aught that appears it may have been after the promise heretofore spoken of. Neither are the allegations as to abandonment of the duties of the office as explicit as they should be. This is subject to amendment if such amendment was necessary in the case.
The allegations as to the failure to file the bond and take the oath required by statute within ten days from the 8th day of January, 1891, are not necessary to be considered in this connection and will not be discussed. The al*745legation of the defendant “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.” This, in the opinion of the writer, is sufficient on demurrer to show that the father of the defendant, before the defendant was of the age of twenty-one years, had completed his naturalization, so that thereby the defendant became a citizen of the United States. -It was unnecessary to allege this fact upon information and belief, as all that the law requires in verifying the answer is to state the facts as he believes them to be. The allegations that follow in regard to Joseph Boyd having exercised the right of citizenship are simply to show that after the year 1854, he regarded himself as being a citizen of the United States, and entitled to the exercise of the elective franchise, and he was so regarded by his neighbors. The further allegation, also in effect that, in consequence of a new registry law faking effect, he was unable to register, and, therefore, to vote, and was compelled to take out his second papers, although he had previously become a citizen of the United States, is of the same nature. These allegations being admitted by the demurrer would seem to be sufficient, if proved, to constitute a defense to the action. .
If the relator desire a more definite statement he should have filed a motion for that purpose. We must remember that the son had no personal kowledge of the naturalization of his father, but was informed by him that he had been naturalized, and hence that the defendant was a citizen of the United States. Under such circumstances greater latitude should be allowed in pleading than where the party himself had been the actor in the case. My associates, however, deem the allegations too uncertain, and hence I acquiesce in their views. This defect, however, could, if necessary, be readily cured by positive allegations.
*746Third — It is contended on behalf of the defendant that he became a citizen of the United States by virtue of the several acts of congress admitting the state of Nebraska into the Union. I must confess that when the proposition was presented, and without an examination of the question, it did not seem to possess the importance which it now assumes. The act organizing the territory of Nebraska was approved on the 30th day of May, 1854. The provisions of the act are exceedingly liberal and evidently intended to invite permanent settlers into the territory. The territory at that time comprised substantially what has since been formed into five states.
On the 19th of April, 1864, congress passed an act to enable the people of Nebraska to form a constitution and state government and for the admission of such state into the Union on an equal footing with the original states Section 1 of the 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.”
Upon the formation of the constitution and ratification of the same in the manner provided in the act, the president was authorized to issue his proclamation declaring the state admitted into the Union on an equal footing with the original states. In pursuance of this act a constitutional convention, was elected and met in the city of Omaha on the 4th day of July, 1864. The territory at that time, contained not to exceed 30,000 people. It had furnished more than two regiments of volunteers who were then in the field. The war had cut off, or impeded to a great extent, the only means of communication with the commercial marts of the country, viz., the Missouri river; hence there was a stagnation of business and the territory was not in*747creasing in population to any extent. These things were felt by every member of the convention and it was the general opinion of the members and the general sentiment of the people of the territory that there was not sufficient population to justify the formation of a state government, and that if a constitution was framed and submitted to the people it would be overwhelmingly defeated. The convention, therefore, organized by the election of the father of the present lieutenant governor as president, and other officers, and by a unanimous vote adjourned sine die. Two years later, however, with the close of the war, the building of the Union Pacific railway and the flow of immigration into the territory, a desire was felt to form a state government, and thereupon the legislature prepared a constitution and submitted it to the people of the state at an election held on the 2d day of June, 1866. The preamble to this constitution is as follows: “We, the people of Nebraska, grateful to Almighty God for our freedom, in order to secure its blessings, form a more perfect government, insure domestic tranquility, and promote the general welfare, do establish this Constitution.”
It will be observed that in the first section of the enabling act the inhabitants of what is now the state of Nebraska were authorized to form for themselves a constitution and state government, which in the preamble they assert that they do form. This constitution was adopted by a small majority and the first state legislature met at the city of Omaha on the 4th day of July, 1866, and after organizing proceeded to elect senators for the state, one of whom was the relator in this case. There was strong opposition in the legislature to the organization of state government, and in the house, consisting of thirty-nine members, but twenty were in favor of, while nineteen were opposed to, such organization, and in the senate, consisting of thirteen members, seven were in favor of, and six opposed to, state government.
*748As the act of 1864 had not been accepted at the time therein provided it became necessary for congress to pass an additional act admitting the state into the Union. The first section of that act is as follows;
“Whereas, On the 21st day of March, A. D. 1864, congress passed an act to enable the people of Nebraska to form a constitution and state government and offered to admit said state, when so formed, into the Union, upon compliance with certain conditions therein specified; and
“ Whereas, It appears that the said people have adopted a constitution, which upon due examination, is found to conform to the provisions, and comply with the conditions of said act, and to be republican in its form of government, and that they now ask for admission into the Union: Therefore,
“Be it enacted by the Senate and House of'Representatives of the United States of America in Congress assembled, That the constitution and state government which the people of Nebraska have formed for themselves be, and the same is hereby, accepted, ratified, and confirmed, and that the said state of Nebraska shall be, and is hereby declared to be, one of the United States of America, and is hereby admitted into the Union upon an equal footing with the original states in all respects whatsoever.”
Congress thus construed the word “ people ” as a synonym with the word “inhabitants.”
It will be observed that the act admitting Nebraska into the Union contains provisions which are exceedingly comprehensive. The constitution and state government “is hereby accepted, ratified, and confirmed, and the said state of Nebraska shall be, and is hereby, * * * admitted into the Union upon an equal footing with the original states in all respects whatsoever.” I have been unable to find as strong language in an act admitting any other state into the Union, and the language is much stronger than that admitting the state of Texas, to which reference will hereafter be made.
*749It is necessary now to inquire how the original states were admitted into the Union.
The preamble to the constitution of the United States declares that “We, the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessing of liberty to ourselves and our posterity, do ordain and establish this constitution for the United States of America.”
In Minor v. Happersett, 21 Wall., 165-67, the supreme court of the United States, in very clear language, points out who were citizens of the United States at the formation of the federal government. It is said:
“There cannot be a nation without a people. The very idea of a political community, such as a nation is, implies an association of persons for the promotion of their general welfare. Each one of the persons associated becomes a member of the nation formed by the association. He owes it allegiance and is entitled to its protection. Allegiance and protection are, in this connection, reciprocal obligations. The one is a compensation for the other: allegiance for protection and protection for allegiance.
“For convenience it has been found necessary to give a name to this membership. The object is to designate by a title the persou and the relation he bears to the nation. For this purpose the words ‘subject/ ‘inhabitant/ and ‘citizen ’ have been used, and the choice between them is sometimes made to depend upon the form of the government. Citizen is now more commonly.employed, however, and as it has been considered better suited to the description of one living under a republican government, it was adopted by nearly all of the states upon their separation from Great Britain, and was afterwards adopted in the articles of confederation and in the constitution of the United States. When used in this sense it is understood as conveying the idea of membership of a nation, and *750nothing more. To determine, then, who were citizens of the United States before the adoption of the amendment, it is necessary to ascertain what persons originally associated themselves together to form a nation, and what were afterwards admitted to membership.
“Looking at the constitution itself we find that it was ordained and established by ‘the people of the United States/ and then going further back, we find that these were the people of the several states that had before dissolved the political' bands which connected them with Great Britain and assumed a separate and equal station among the powers of the earth, and that had by articles of confederation and perpetual union in which they took the name of ‘the United States of America/ entered into a firm league of friendship with each other for their common defense, the security of their liberties, and their mutual and general welfare, binding themselves to assist each other against all force offered to or attack made upon them, or any of them, on account of religion, sovereignty, trade, or any other pretense whatever. Whoever, then, was one of the people of either of these states when the constitution of the United States was adopted became, ipso faoto, a citizen — a member of the nation created by its adoption. He was one of the persons associating together to form the nation, and was, consequently, one of its original citizens. As to this there has never been a doubt. Disputes have arisen as to whether or not certain persons? or certain classes of persons, were part of the people at the time, but never as to their citizenship if they were.”
The same doctrine had previously been announced in McIlvaine v. Coxe’s Lessee, 4 Cranch, 214, and other cases, and is stated by Kent, 2 Comm., pp. 1-2.
In United States v. Laverty et al., in the district court of the United States, 3 Martin, 733, which seems to have arisen during the last war with Great Britain, where certain persons arrested as alien enemies claimed to be citizens *751of the United States by virtue of the admission of the state of Louisiana into the Union, it is’ said: “It is well known that some of these persons have been discharged by one of the judges of the state, but as the marshal and many others are seriously impressed with a belief that they are not citizens, but aliens, it has been deemed proper to obtain the opinion of the judge of the United States.”
It is contended by the attorney of the United States that congress alone has power to pass laws on the subject of the naturalization of foreigners, and that, by the constitution, it is declared that the rule for their admission must be uniform. On the other hand, it is said that congress has the power to admit new states into the Union; that this power is not inconsistent with nor repugnant to the other; that the first rule well applies where individual application is made for admission, but is not restrictive of the other power to admit at once great bodies of men, or new states into the Federal Union.
The power to admit new states is expressly given by the third section of the fourth article of the constitution; it has been frequently exercised, and on the 30th of April, 1812, Louisiana was admitted into the Union, upon the same footing with the original states. In what manner has this'power been exercised with respect to other states? On the 30th of April, 1802, the inhabitants of the eastern division of the territory northwest of Ohio were authorized to form for themselves a constitution and state government; this was done, and they were afterwards admitted into the Union. Previous to their admission the people of that country were governed by what is commonly termed the Ohio ordinance; that the population consisted partly of citizens of the United States and partly of foreigners may be collected from the provisions of that instrument for their government; that a great body of aliens resided among them is known to many. It is declared that possessing a freehold of fifty acres of land, having *752been a citizen of one of the states, and being resident in the district, or the- like freehold, and two years’ residence, shall be necessary to qualify a man as an elector. Here there are two descriptions of persons: First, citizens of the United States with a freehold and actual residence, and second, persons not citizens, with a freehold and two years’ residence. Were they not all equally inhabitants ? and, in the act of admission, is there any distinction made? The inhabitants, then, who were authorized to form a state government for themselves, must have been all the real inhabitants of the country, citizens or foreigners, and after the admission of the state into the Union, must have equally participated in all its advantages, because if a party only were entitled to its benefit, all the inhabitants had not formed a government for themselves. Can we, for an instant, believe that a wise, just, and liberal government, like that of the United States, would invite any portion of people, who were enjoying self-government in a considerable degree, to place themselves in a situation where they would be entirely deprived of it? I can have no doubt that all the inhabitants of the state of Ohio were admitted citizens of that state by their admission into the Union.
Let us then examine and discover, if possible, any difference between the case of that state and of this. Louisiana, it is said, was admitted under the treaty of Paris, by which it is stipulated that the inhabitants shall be incorporated into the union of the United States and admitted as soon as possible, according to the principles of the federal constitution, to the enjoyment of all the rights, advantages, and immunities of citizens of the United States. It is then contended by some that the word “inhabitants,” used in the act of February, 1811, applies solely to those who were inhabitants in 1803.
On the 20th of February, 1811, congress passed an act “ enabling the people of the territory of Orleans to form a state government.” It commences by declaring that the *753“inhabitants” of all that part of the country ceded under the name of Louisiana shall be authorized to form for themselves a state government. It then goes on and describes two classes of inhabitants: First, citizens of the United States, and all persons having in other respects the legal qualifications to vote for representatives in the general assembly. Those qualifications are the same as those of Ohio — two years’ residence and a freehold for those who are' not citizens. We here find no distinction between the old inhabitant and the new; the man who has been here two years and has fifty acres of land, let him be citizen or alien, is authorized to join in making a constitution for all the inhabitants of Louisiana. The law then evidently does not mean merely “the inhabitants at the date of the treaty,” and it will be found that the only question in this case is, whether congress had a right to include any others than citizens in their act of admission.
I have already shown that they have exercised this right heretofore; that in the case of the state of Ohio it was not disputed, and it does not become us at this time to question it. '
I shall now consider some of the arguments that have been urged by the district attorney and his colleague. Although an attempt was made to distinguish between the two classes of inhabitants (not originally citizens of the United States), yet, in truth, their arguments go as well to exclude the first as the last class. It is contended that the only mode by which an alien can be naturalized is by a compliance with the uniform rule; that this is the only constitutional mode; that the expression in the treaty that “the inhabitants shall be admitted according to the principles of the constitution,” means according to the uniform rule required by the constitution. If so, the creoles of Louisiana are not citizens yet, for not one of them has complied with that law. But one of the gentlemen has observed: here is a treaty, and treaties are paramount. I *754can never subscribe to the doctrine that treaties can do away with any part of the constitution. I will go as far as any one in supporting and observing them in anything not repugnant to it. If, then, the uniform system be the only constitutional one, any other must be unconstitutional, and, though introduced by treaty, is void. If this were the only constitutional mode I should tremble for the fate of the Louisianians; but, fortunately for them and for others, it is not the only one. The expression under the treaty is that they shall be admitted according to the principles of the constitution; that is, with the consent of congress, which shall be obtained as soon as possible; and it has been since given. By this construction every part is reconciled; and if congress, in their liberality, included others who have since settled in the country, they had a right to do so.
It is said that the law respecting alien enemies declares that they shall all be apprehended unless actually naturalized; and it is contended that the only actual naturalization is by the uniform rule. This does not follow; if it did, there is scarcely a creole who, in case of a war with France or Spain, would not be subject to its penalties, for none of them have complied with it. The government has a right, by treaty or by the admission of a new state, to naturalize, and such naturalization is equal to the other.
The same question arose in Desbois’ Case, 2 Martin’s Reports, 185, and the same conclusion reached. In construing the meaning of the word “inhabitants” it is said (p. 182): “The act of congress authorizing the formation ■of the constitution of this state (10 Laws U. S., 322) was almost literally copied from that which authorized that of the state of Ohio (6 Laws U. S., 120). In the first section of the latter the inhabitants of the eastern division of the territory northwest of the river Ohio are authorized to form for themselves a state constitution. In the fourth section the persons entitled to vote for members of the *755convention are described : First, all male citizens of the United States; next, all other persons having, etc. The word inhabitants,_ in the first section of this act, must be taken lato sensu, it cannot be restrained so as to include citizens of the United States only, for other persons are afterwards called upon to vote. There is not any treaty, or other instrument which may be said to control it. Every attempt to restrict it must proceed on principles, absolutely arbitrary. If the word is to be taken lato sensu in the act passed in favor of the people of one territory, is there any reason to say that we are to restrain it, in another act, passed for similar purposes, in favor of the people of another territory?”.
The cases above cited are referred to with approval by the attorney general of the United States in volume 13 of Official Opinions, p. 397, who also cites Wheaton’s International Laws by Lawrence, p. 897, in support of the proposition, and the cases cited have not been overruled.
The only case we have found holding a contrary doctrine is State v. Primrose, 3 Ala., 546. In that case one of the grand jurors who found an indictment, was a native of Ireland and settled in Louisiana in 1811 and three years later removed to Mobile, Ala. The court holds in effect that he was hot within the terms of the act of congress admitting Louisiana into the Union. The most favorable view that can be taken of the case is, that the opinion was written off-hand and without any previous investigation of the questions involved. On the main point not a single authority is cited nor are the principles discussed upon which other courts have placed a construction upon the word “inhabitants.” At the close of the opinion the judge frankly says that he had not seen the decisions of the Louisiana courts and therefore those cases had no influence on the judgment of the court. So far as we have observed, after a very careful examination, the doctrine of that case has not been approved in a single instance.
*756In American Ins. Co. v. Canter, 1 Peters, 542, the supreme court of the United States said: “On the 2d of February, 1819, Spain ceded Florida to the United Slates. The sixth article of the treaty of cession contains the following provision: ‘The inhabitants of the territories which Ins Catholic majesty cedes to the United States by this treaty shall be incorporated in the Union of the United Slates as soon as may be consistent with the principles of the federal constitution, and admitted to the enjoyment of the privileges, rights, and immunities of the citizens of the United States.’ This treaty is the law of the land, and admits the inhabitants of Florida to the enjoyment of the privileges, rights, and immunities of the citizens of the United States.”
There are other decisions of the supreme court of the United States affirming this doctrine, and the same rule is recognized by congress in contested elections.
In the report of the committee on elections in the case of Mr. Levy, delegate from the territory of Florida (Contested Election Cases, 2d Session 38th Congress, 41), it is said: “The fourth section of the act of congress of April 14, 1802, secures to the infant children of persons naturalized, the benefit of their parents’ naturalization, provided such children were at the time living in the United States. It matters not whether the naturalization be effected by act of congress, by treaty, or by the admission of new states, the provision is alike applicable. The condition of the parent is impressed upon the child.” This right exists under the war and treaty-making powers of the government, and the right to control the territory and property of the United States and admit new states into the Union.
There are three modes, therefore, by which citizenship maybe acquired: First, birth; second, proceedings in a court of record; third, by treaty or act of congress admitting new states. The third proposition will be more fully illustrated by a reference to the admission of the state of Texas into the Union.
*757On the 1st day of March, 1845, a resolution was adopted by congress as follows: “That congress doth consent that the territory properly included within and rightfully belonging to the republic of Texas may be erected into a new state, to be called the state of Texas, with a republican form of government, to be adopted by the people of said republic, by deputies in convention assembled, with the consent of the existing government, in order that the same may be admitted as one of the states of this-Union.” (5 U. S. Stats, at Large, 797.)
In pursuance of this resolution, President Jones, of Texas, called a delegate convention of sixty-one members, who met July 4, 1845; ratified the proposition made by congress; prepared a constitution for Texas as a state in the Union, and submitted the same to the people of Texas, who approved it. In December following, a joint resolution Avas adopted by congress as folloAvs:
“Be it resolved by the Senate and House of Representatives of the United States of America in Congress assembled, That the state of Texas shall be one, and is hereby declared one, of the United States of America, and admitted into the Union on an equal footing with the original states in all respects whatsoever.”
It will be observed that the proceedings admitting Texas into the Union were somewhat similar, although not as full, comprehensive, and complete, as the act admitting Nebraska.
Under the act admitting Texas the inhabitants of Texas, after the declaration of independence, became at once citizens of the United States.
In Cryer v. Andrews, 11 Tex., 183, the supreme court of Texas says: “When the congress of the United States, under the authority to admit new states, receives a foreign nation into the confederacy, the laws of these respective nations, in relation to the naturalization of individual emigrants, have no application to the respective citizens of *758each. By the very act of Union, the citizens of each become citizens of the government or governments formed by this Union. The position which has been sometimes broached, that the citizens of Texas must submit to the laws of naturalization before they can become citizens of the United States, is quite preposterous. No such doctrine was ever admitted or applied to the citizens or inhabitants of Louisiana or Florida — countries acquired by purchase. (2 Martin, 158 ; 3 Id., 733.) Much less is it applicable to the citizens of a state, which by voluntary treaty or legislation becomes incorporated into the United States. And if the citizens of Texas cannot be deprived of their franchise as citizens of the United States, neither can citizens of the latter be stripped of the immunities and privileges pertaining to the citizens of this state.”
In Barrett v. Kelly, 31 Tex., 481, the question was again before the supreme court of that state, and it is said when the annexation to the United States took place in 1845, we became a part and parcel of the United States, and none of the citizens of the United Slates were aliens to Texas, and the citizens of Texas would be in their own country from the St. Lawrence to the Gulf of Mexico. Other cases sustaining the same views can be found, but by reason of the great length to which this opinion has been extended must be omitted. In effect, the union of the nine original states nationalized them, which is but another name for naturalization, and when the act for the admission of a new state authorizes the “inhabitants” thereof or “people ” therein to form a state government, and the new state so formed is “admitted into the Union on an equal footing with the original states in all respects whatsoever,” the conditions are precisely the same as those on which the original nine formed the Union, and the other members of the original thirteen came into the Union.
Had Nebraska been one of the original nine states every inhabitant of the state would, by the union, have become *759a citizen of the United States. It was “ admitted into the Union upon an equal footing with the original states in all respects whatsoever.” Broader or more comprehensive language could not be used, and its meaning cannot be restricted without doing violence to the words employed.
In the third article of the treaty of Paris of April 30, 1803, by which the territory of Louisiana was acquired, it is provided: “The inhabitants of the ceded territory shall be incorporated in the Union of the United States, and admitted as soon as possible, according to the principles of the federal constitution, to the enjoyment of all the rights, advantages, and immunities of citizens of the United States, and in the meantime they shall be maintained and protected in the free enjoyment of their liberty, property, and the religion which they profess.” This stipulation could not have been intended to be restricted to the comparatively small number of inhabitants then occupying the territory which now forms the state of Louisiana, as the land ceded was an empire in extent, and has- since formed a very large number of states. The stipulation, therefore, was, in effect, that on the admission of each state into the Union all. the bona fide inhabitants therein should thereupon-be entitled to enjoy “all the rights, advantages, and immunities of. citizens of the United States.”
The admission of a state into the Union partakes of the nature of a treaty with the inhabitants that, in consideration of their forming a state government, they shall enjoy certain rights, privileges, and immunities. It may be said to be to some extent a joinder of the law-making and treaty-making powers of the government. Both parties derive benefit from the accession of the new state, and it is a matter of public history that congress has been exceedingly liberal in the benefits conferred upon the new states of the nation. Congress may, no doubt, impose other conditions upon the inhabitants of a state seeking admission into the Union, but it is sufficient to say that it has not done so in this case.
*760It is contended on behalf of the attorneys for the relator that, because no cases can be found sustaining their view of the law except the Alabama one, therefore, the question has never arisen, or, if so, been decided adversely to the defendant. In this, however, they are mistaken. The Louisiana cases which were decided in the early history of the goverment, one of them by a judge of the United States court, have been followed apparently without question, and are cited with approval by the attorney general of the United States. But in this case it is not necessary to go to the extent of the cases cited.
The answer alleges that Joseph Boyd, the father of the defendant, in the year 1849, and long prior to the time that the defendant reached his majority, declared his intention to become a citizen of the .United States. Had he resided in this state at the time of the adoption of the first constitution he would have been a legal voter therein and expressly authorized by the enabling act to vote for any officer-to be elected by the state of Nebraska. The maxim of the law is, “ partus sequuntum, patrem; ” that is, “the children follow the condition of their father.” (Webster on Citizenship, 133.) This is the rule in regard to freemen, although a different rule exists in the ease of animals and slaves. (1 Bouv. Institute, note 167, 502; 2 Bouv. Law Diet., 147.) The son, therefore, was in the same condition when he became of age, as his father, and was a citizen of the territory of Nebraska. Congress passed an enabling act for the territory to admit a certain portion of it as a state, should the inhabitants be so inclined. In effect, congress said to the future state, that in addition to representation in the senate, and a member having full power in the house, “ We’ll donate to you seventy-two sections of land for a university; two sections in each township for the support of common schools; twenty sections of land for the erection of public buildings at the capital of the state; all salt springs within the state, not *761exceeding twelve in number, with six sections of land adjoining ; and five per cent of the proceeds of the sale of all public lands lying within the state after deducting the expenses incident to the same.” There was also an appropriation to pay the expenses of the convention. Similar offers have been made to all other states except Texas.
It has never been the policy of congress to force a territory to accept a state government. In all cases the admission of the state has been on the voluntary application and consent of the people of such state. Judging the future by the past, the people of a territory might preserve their territorial character to the end of time and there would be no attempt on the part of the United States to coerce them into the Union.
The enabling act admitting a state is in the nature of a treaty with the inhabitants of such state. Now in the case of Texas there was no treaty. The language of the act of March 1, 1845, for the admission of Texas is : “Congress doth consent that the territory properly included within and rightfully belonging to the republic of Texas may be erected into a new state to be called the state of Texas, with a republican form of government, to be adopted by the people of said republic by deputies in convention assembled, with the consent of the existing government, in order that the same may be admitted as one of the states of this Union.” Then follows certain conditions which were accepted by the state of Texas. All white inhabitants of the state of Texas at the time of its declaration of independence were held to be citizens of that republic, and this by the mere force of the declaration of independence. Now if a citizen of Texas, by the mere admission of that state-into the Union, became, ipso facto, a citizen of the United States, why does not the same rule apply on the admission of a territory?
It may be said that a foreign state occupies a different position from that of territory belonging to the United *762States. If so, however, the difference would seem to be in favor of the inhabitants of the territory. They have grown up under the fostering care of the government and their sentiments and sympathies favorable and friendly to it. This is illustrated by the very large number of volunteers that were furnished by every western state. In case of the admission of a state, like Texas, containing a considerable mixed and Mexican population, there c.ould not be from the nature of the case the same loyalty to the general government as in the people of the territories. In reason, therefore, every citizen of the territory when it was admitted into the Union became, ipso facto, a citizen of the United States. In the one case the enabling act is addressed to the state, and in the other to people of the territory. The propositions are the same in substance in both, and the result of the acceptance of the proposition the same in both cases, viz., admission as a state upon an equal footing with the original states. Suppose the United States should propose to the people of Manitoba to be admitted as a state and they should accept the proposition and thereupon be admitted as a state of the Union on an equal footing with the original states, would not every citizen of that colony thereby become a citizen of the United States?
The international law as understood in England has never been adopted in this country. In 2 Opinions of the Attorneys General, 356, it is said: “We take our knowledge of international law not from the Municipal Code of England, but from natural reason and justice; from writers of known wisdom, and the practice of civilized nations.”
In conclusion, I desire to call attention to the case of Attorney General v. The City of Detroit, 44 N. W. Rep., 388. Prior to the admission of Michigan into the Union considerable difficulty had arisen between that territory and the state of Ohio in regard to the northern boundary of Ohio and the southern boundary of the territory of *763Michigan. The militia seems to have been called out on both sides, although wiser counsels prevailed and there were no actual hostilities. Michigan, however, did riot avail itself of the enabling act which was thought to favor the state of Ohio by giving it the disputed territory, hence no attempt was made to organize under the enabling act, but the legislature of the territory passed an act in pursuance of which a constitution was adopted, senators elected, and a representative in congress. One of the provisions of this constitution was, that each male inhabitant residing in the state on the 24th day of June, 1835, should be entitled to vote at such election. In the case cited it was held that a registration act which failed to provide for this class of voters was unconstitutional and void. In the examination of the debates relating to the admission of that state the boundary question seems to have been a prominent feature and absorbed the attention of the members more particularly from Ohio and Indiana, some of whom claimed the state was attempting to break into the Union. There is considerable’discussion in regard to the provision of the constitution above referred to, but it seemed to have been generally acquiesced in and the bill finally passed both houses by a very large majority.
The writer has spent considerable time in the consideration of the case and has examined every case pro and con bearing upon the question, and is forced to the belief that the defendant is a citizen. In any event the principal question presented by the answer — the one which controls this decision — is, in the opinion of the writer, a pure question of law arising under the laws of the United States, and must ultimately be determined by the United States supreme court, and the decision of this court is at the most but a step in the progress of the case.
This is not a political question. There must be one place where a party can assert his rights, where no inquiry will be made as to his political opinions, where no extra*764neous matter will be permitted to intervene to his prejudice. That place is a court of justice. Here the rich and poor, high and low, stand upon an equality, and the court looks not at the litigant but to his rights as shown by the record, and fearlessly declares the law.
[Filed February 17, 1892.]In my view the answer states a complete defense to the action.
I have not discussed the rights of the relator to bring the action, as the case has not yet reached a stage where such discussion is necessary. When that point is reached, I will make a full examination of the law in relation thereto, and if, after such examination, the relator’s right to the office should be clear, my duty to render judgment in his favor will be cheerfully performed.