dissenting..
The majority opinion decides that, when the election commissioner reaches the final conclusion as to whether *573the applicant for registration is a legal voter, if the facts, which they say can be shown only by affidavit, “are sufficient in substance, so that reasonable minds would draw the conclusion therefrom that the registration is correct * * * sufficient to satisfy a reasonable person that he is a citizen and entitled to vote,” the applicant must be regarded as a qualified voter. This, of course, contemplates that the commissioner will ascertain and decide whether the facts proved are sufficient, and in doing this he must use a reasonable discretion, so that in the final determination of the matter he is not concluded by the unsupported oath of the applicant as to his naturalization. This was the decision in the former opinion. 95 Neb. 80. It was there expressed in these words: “The relator understands this statute to mean that these preliminary answers under oath are conclusive upon the commissioner, so that, if the applicant in that examination says that he is naturalized, the matter is thereby concluded. We do not so understand the statute.” The majority opinion nevertheless affirms the judgment of the district court, but that judgment clearly is that, even in doubtful cases, when reasonable minds might conclude from the facts in evidence that the applicant had never been naturalized, the commissioner is concluded upon that fact by the oath of the applicant. .
The petition for the writ of mandamus asks that the respondent be commanded “to receive under oath his (the relator’s) oral statements for the purpose of establishing Ms citizenship, and to accept such oral statements under oath as competent to establish citizenship under the election and registration laws of the state of Nebraska.” The alternative writ commands the respondent “to register said relator as a legal voter in the city of Omaha, Douglas County, Nebraska, in accordance and conformity with the registration and election laws .of this state.” The finding of the trial court was “that the election commissioner has no authority to require naturalized citizens to produce their naturalization papers or other documentary *574evidence of their citizenship,” and the judgment was: “Now,’ therefore, it is considered, ordered, adjudged and decreed by the court that, a peremptory writ of mandamus issue herein against the respondent commanding him, as election commissioner in and for Douglas county, Nebraska, forthwith, on the application of the relator to receive the oral testimony, under oath, of said relator, for the purpose of establishing the relator’s citizenship by naturalization under the naturalization laws of the United States, and that the respondent accept said oral statements, under oath, as competent and sufficient evidence to establish the relator’s naturalization for the purpose of registering as an elector under the laws of the state of Nebraska.”
The majority opinion and the decree consider all of these proceedings are for the purpose of a preliminary or tentative list of voters. This judgment, it assumes, can and really must be corrected by a challenge. The commissioner must send out his inspectors, and they must report if there is any doubt about the applicant’s naturalization, and a challenge must then be entered upon this supposed preliminary register. The applicant may then attach his naturalization papers or a certified copy of the record of his naturalization, if he has them. If not, he and his two neighbors, “legally registered voters” of his district, must state the facts within their knowledge, and, if the commissioner finds that the facts stated ought to “satisfy reasonable minds,” he withdraws the challenge and relator can vote; but, if he finds that the facts are not sufficient to satisfy reasonable minds that relator has been naturalized, he will not Avithdraw the challenge and the relator cannot vote, - notwithstanding the prayer of his petition and the finding and decree of the court, which is now affirmed. This surely is inconsistent. By these findings and decree he is commanded to receive relator’s oath as proof of naturalization, and, if the commissioner should challenge him or otherwise refuse to qualify him as a voter on the ground that the facts in evidence were not suffi*575cient to “satisfy a reasonable person that he is a citizen and entitled to vote,” he would be in contempt of court. And so it would seem that, under the law as finally stated in the opinion, the judgment of the distinct court should be reversed.
That fraud has been perpetrated in elections in the large cities of the country is notorious. A foreign-born resident taking no special interest in an election, and brought to the polls by those who were especially interested, could answer that he had been naturalized, and without doubt many such votes were improperly received. The legislature in the act of 1913 (laws 1913, ch. 36) attempted to remedy this and many other evils in elections in the city of Omaha. The act is a comprehensive one. It creates, the office of election commissioner, and, as pointed out in our former opinion (95 Neb. 80), clothes him with unusual and extraordinary powers, and imposes upon him onerous; and exacting duties. To analyze the act and ascertain with precision the powers and duties of the election commissioner as intended by the legislature is a tedious and in some respects an unusually difficult labor. To settle-one of the important questions that arise as to the power- and duties of the commissioner it was thought best to-bring this test case. The election commissioner, who appears to have, no motive other than to perform his duty as the law intends, and Mr. Williams, who appears to be-a frank and honorable citizen, interested in good government and the just enforcement of the laws of his adopted; country, and other good citizens, appear to have been in doubt Avhetlier the practice which liad obtained of talcing the unsupported oath of a foreign-born resident as: final and conclusive proof that he had been naturalized was still the laAV under this new act. This Avas the question Avhich they sought to raise and present to the courts.. In the briefs the relator says: “The appellant (the election commissioner) contends' that under subsections S and 9 he finds authority to demand documentary evidence (of naturalization).”' And the respondent stated *576the question to be: “Gan the respondent, as registrar of voters, demand the production of naturalization papers as the best evidence of citizenship?” If, in raising this important question as to the duty of the election commissioner to exercise his discretion, they had selected a relator who was an “undesirable citizen,” and who had probably never in fact been naturalized, but was ignorant and apparently willing to impose upon the election commissioner with a false oath, instead of selecting a desirable citizen, in whose favor the discretion of the commissioner ought and ordinarily would be exercised, there might be no temptation to suggest the old saw that a hard case makes bad law. As it is, the opinion of the majority is that the •election commissioner must receive the “oral testimony, under oath,” of the applicant for registration “for the purpose of establishing the relator’s citizenship by naturalization under the naturalization laws of the United States, and that the respondent accept said oral statements, under oath, as competent and sufficient evidence to establish the relator’s naturalization for the purpose of registering as an elector under the laws of the state of Nebraska.” This construction of the statute, it seems to me, is not without some difficulties. The opinion of the majority then says that this is required by section 12» •of the act, and that the election commissioners may then •challenge the voter under section 10. Is the record required by section 12» the “permanent registration register?” Is the provision of section 10 intended as a review of the decision of the election commissioner in registering the applicant as a voter? Answers to these two questions appear to present great difficulties in the way of holding that the election commissioner is bound in all cases by the oath of the applicant.
The election commissioner is required to make several distinct records; one of them is the “permanent registration register.” He first, with the assistance of his deputies investigates the whole field for himself. He visits every building in each city in the county and makes “true *577lists” of the facts specified in section 9 as fie and his deputies find them to be. He next makes the record described in section 12, “known by the general name of register.” This is the record of the statements of the applicant for registration of the details of the facts in regard to his qualifications. He is first sworn and-his answers are taken down as he makes them. This is, of course;, the record intended in section 12». Any person serving as a supervisor of election shall question the applicant and “immediately in the presence of the applicant” enter in the register his statements, and when it is done the applicant signs it as his statement. There is a slight discrepancy, in that section 12 provides for a column entitled “Date Registry Approved,” and 12» assumes the title to be “Qualified Voter;” but as 12» says that these answers shall be •entered “in the registers,” and does not require any other register for that purpose than the one provided for and defined in section 12, “to be known by the general name of register,” as distinguished from the “permanent registration register,” it is apparent that “approving the registry” and entering under the word “qualified” the word “Yes” are one and the same thing, and as this may all be done by ■“any person serving as supervisor” without consulting the -commissioner of election, and even without his knowledge, and no other evidence on any matter is taken or allowed ■except the personal statement of the applicant himself, it is impossible that this record could be considered authoritative or final, or in any respect take the place of the ■“permanent registration register.” Two supervisors, possibly of different political parties, are required to be present, and know that the record is properly made, and that all required questions are properly answered, so that the record on its face shows the applicant qualified. These statements of the applicant and the preliminary lists of facts as entered by the election commissioner are before the election commissioner when he receives evidence and ascertains whether the applicant is a legal voter and makes the “permanent registration register” provided for in sec*578tion 10. Sections 18 and 14 of the act also conteníate that there shall be “election registers.” There is to be one of these for each election district. They are not the “permanent registration register” provided for in section 10, nor the records “to be known by the general name of register,” provided for in sections 12 and 12a. There are only an original and one duplicate of the “permanent registration register.” The number of the record “known by the general name of register” is perhaps uncertain, but there is to be an “election register” for each election district.
The election commissioner next receives applications for registration, passes upon them, and, if he finds them to be voters, registers them in the “permanent registration register.” The permanent registration registers shall be kept in duplicate and marked respectively “Original” and “Duplicate.” How, then, can the election commissioner be required to “proceed under section 12a by administering the oath to the relator, taking his answers to the questions required by that section, and, for the purpose of registration, to accept his statements under oath as true and to register him as a voter?”
It was not the purpose of this test case to raise questions as to the form of the record of the applicant’s answers to the questions which the law requires shall be put to him, “known by the general name of register.” The purpose was to test the question whether the election commissioner in determining who are legal voters might in any case require a foreign-born applicant for registration to “submit or present” his naturalization papers, or whether the personal oath of the applicant is conclusive upon that question. This is stated in the briefs by both parties to be the point involved in the litigation.
The opinion says: “This judgment will not and does not attempt to preclude the respondent and his inspectors * * * from challenging his right to vote, as provided in section 10, above set out.” This judgment, then, will not in practice accomplish much. The election commis*579sioner is compelled to register the applicant as a voter if he states that he has been naturalized; but the election commissioner may at once challenge him, and then his own oath is not sufficient. He must prove that he has been naturalized by two witnesses. It will probably not often happen that there are two “regularly registered voters of the district” who were witnesses to his naturalization and can swear to the fact that the applicant was naturalized. Unless there are two such witnesses, the challenge is not withdrawn and the party is not allowed to vote, and so this action and this decision, in most cases at least, will not help the proposed voter. This unfortunate result leads us to the question above proposed: Is the challenge provided for in section 10 intended as a review of the decision of the election commissioner that the applicant is a legal voter, after hearing evidence and after he has registered him as a voter on the “permanent registration register?”
The election commissioner is required to send out his inspectors before each general election, -and at other times if he deems necessary, who are to report any voter “unlawfully registered.” Such voter must .be challenged, and must then furnish proof by his own oath and the oaths of two other “regularly registered voters” of the same election district with himself “showing the correctness of his. registration.” Does this mean that he must re-establish in this manner the facts that were investigated when he was; admitted as a voter and duly registered on the “permanent-registration register?” There are apparent difficulties in the way of such a conclusion. Why limit him to two “regularly registered voters” of his own election district?' Why not allow the election commissioner to call witnesses generally, as he does when he determines that he is a legal voter and registers him as such, and as provided in section 13? It seems that in trying the challenge no oral evidence is allowed. The opinion says that his naturalization papers may be attached. The evidence taken by the election, commissioner on the first hearing is not preserved and is-excluded. Is it reasonable to suppose that the legislature *580intended that the election commissioner should first determine upon satisfactory evidence that the applicant had been naturalized, and, if afterwards there was doubt of that fact, the question should be so summarily retried and the evidence taken in the formal investigation go for nothing, unless the applicant could bring two regularly registered voters of his district who knew and could swear to the fact of his naturalization?
It would seem more reasonable to suppose that these inspectors are sent out before each election to ascertain whether any. changes have taken place that would disqualify any voter, such as change of residence, conviction of felony, or perhaps some minor matter that would be required to be recorded so that the voter might be identified and could not be impersonated. His neighbors would be more likely'to know the facts in regard to such disqualifications than to know the facts in regard to his naturalization, which he might assert had happened many years before. It seems to me that the majority opinion places the conclusion on impossible grounds. The election commissioner ought to exercise a reasonable discretion, and when the facts, well established, are such that all reasonable minds must agree that the applicant of foreign birth has been duly naturalized, that should be sufficient; but when a vagrant of foreign birth, who apparently is ready to swear to anything ' that would permit him to ■vote, especially in regard to a matter which he places so remotely in the past, and which in the nature of things it would be practically impossible to disprove, and so can be sworn, to with safety, the conditions being such that all reasonable minds must refuse to believe him, the election commissioner ought not to be compelled to register him as a voter, but might in his discretion require him to “present or submit” his naturalization papers.