Andres v. Arnold

Morse, J.,

(dissenting). I cannot agree with the conclusion reached by my brethren in this case.

The naturalization laws which govern the method of procedure in transforming an alien into a citizen of the United States, are the acts of the Congress of the United States, which is given exclusive jurisdiction over the subject of naturalization. By the act of Congress of May 26, 1824, aliens were permitted to declare their intentions to become citizens of the United States, before “the clerk” of any court of record, and such clerks were authorized to take such declarations. 4 U. S. Stat. 69. This provision was changed by the revision of the laws by Congress of 1873-74, which required the declaration to be made in open court. Rev. Stat. U. S. 1873-74, § 2165. By an act of Congress approved February 1, 1876, it was again enacted that—

“ The declaration of intention to become a citizen of the United States * * * may be made by an alien before the cleric of any of the courts named,” etc.

It was further enacted that—

“All such declarations heretofore made before any such clerk are hereby declared as legal and valid as if made before one of the courts named in said section.” 19 U. S. Stat. 2.

The proceeding is necessarily one of record, as no officer but the clerk of a court of record is authorized to take the declarations. The making of this declaration of intention is the first step in the proceeding to become a citizen. And he cannot be clothed with full citizenship, *92except by the action of a court of record in open' court.

The court wherein the proceedings were commenced, in the case of the persons voting in Ottawa county last fall, and claimed by the relator not to be voters, was the circuit court for the county of Ottawa, which court must be holden at the county seat, Grand Haven; and there and nowhere else must be the office of the clerk of said court. There is kept the seal of the court. It is claimed by the counsel for the relator that the county clerk of Ottawa county, who, by virtue of such office, is clerk of said circuit court, cannot act as clerk of the circuit court for the county of Ottawa .except in his office at Grand Haven, or in open court. That outside of his office,—

“Of the places where his official duties are authorized to be performed, he is simply a citizen, and no more; simply the person who is designated by law to perform the duties of cleric of the court at the proper time and place.”

It is also urged that when an alien declares his intention to become a citizen he is entitled to a certificate, a certified copy of such declaration, duly attested by the clerk and the seal of the court; that this could not be done at places away from the office and the city of Grand Haven, as the clerk has no authority to go about the county carrying the seal of the court with him. It is therefore contended that proceedings to become a citizen could not be commenced by a declaration of intention made, for instance, at Jamestown, 20 or 30 miles from the county seat, or at any other place than the office of the clerk of the circuit court. There seems to be no limit to the number of deputies the clerk may appoint, and there might be, if this method is lawful, a deputy in each township in the county on the same day taking these declarations. In such case the opportunities for *93fraud would also seem to be limitless. The declarations in these cases — 81 of them — were commenced, as shown by the records,—

“In the circuit court for the county of Ottawa, at Holland, on the 30th day of April, 1888, before one Chas. T. Pagelson, deputy-clerk.”

On April 27, 1888, 73 were made before said Pagelson, at Zeeland; and on May 3, 1888, 30 were made before “Chas. E. Soule, deputy-clerk,” at Polkton and Tallmadge. It is shown that each of these persons, except those who made their declarations before Soule, signed his declaration on the record-book of the court. The record-book was taken from the clerk’s office, and carried around the county for that purpose. Soule took the declarations before him on blanks, which declarations were afterwards copied upon the record-book. While this book was out of the clerk’s office it is claimed that declarations were taken on blanks in the clerk’s office. This is certainly a loose way of doing business. The question arises, is it a legal method?

I think the objection made to -the taking of these declarations by a deputy-clerk is not well founded. In this State deputy-clerks may perform the duties of the clerk. How. Stat. § 573; Calender v. Olcott, 1 Mich. 344; Dorr v. Clark, 7 Id. 310. But I think no man can legally declare his intention to become a citizen of the United States outside of the clerk’s office, unless it is in open court.

We have on record what the views of one Justice of the Supreme Court of the United States are as to the practice prevailing in Ottawa county.

On June 28, 1887, Emilie Charlotte Langtry, a subject of the Queen of Great Britain, made application to become a citizen of the United States, and a bound volume of declarations by aliens, in which some of the blanks *94had not been used, was taken from the clerk’s office of the United States circuit court for the district of California, at San Francisco, by a deputy-clerk, and carried to the private residence of Mrs. Langtry, and there her declaration was made and oath taken by the deputy-clerk. This fact coming to the knowledge of Mr. Justice Field, of the Supreme Court of the United States, then holding with Circuit Judge Sawyer the circuit court at San Francisco, the attention of Mr. Barnes, the counsel for Mrs. Langtry, was called by Mr. Justice Field to the manner of taking of her declaration, and he was advised that the court had doubts of the legality of her declaration. Mr. Justice Field said:

“He did not think that the statutes furnished any authority for the clerk of the court to take a declaration of one to become a citizen out of his (the clerk’s) office, except in open court, and for that purpose to carry the records of the court to the private residence of the party. To permit the proceeding to pass without comment would be to establish a dangerous precedent, and one calculated to give rise to gross abuses. The Justice observed that to be an American citizen was- a great privilege; that citizenship should be regarded as a sacred trust; and that persons seeking to take upon themselves its responsibilities ought to consider it of sufficient value to attend where the records of the court are held in proper legal custody. In some states a man is allowed to vote as soon as he makes his declaration of intention to become a citizen; and if the clerk of the court, or his deputy, can go around the country taking declarations of intention and administering oaths, it is evident that dangerous consequences might follow, especially as there is no limit to the number of deputies which a clerk may appoint.” See In re Langtry, 31 Fed. Rep. 879, 880.

The record in this case shows that it has been the custom for some years in Ottawa county to naturalize people in this way, and it is contended that such custom has almost, if not quite, ripened into law. But the fact that an unlawful custom has prevailed for even 30 years can*95not change the naturalization laws of the United States, .nor is it a good reason for continuing a bad practice.

The record in this case also shows on the part of the relator, and is substantially admitted in the affidavits attached to the showing of the respondent, that about seven months before the general election a number of deputies were appointed by the county clerk of Ottawa county for the sole purpose of going about the county, with the necessary blanks or court records, to hunt up persons who were aliens, and to take their declarations of intention to become citizens. This was also manifestly, if the relator’s showing be true, to make voters who otherwise would not have become so, men who, if left to their own motion, would never take any steps to become citizens.

It is a matter of common notoriety that all over the land these men, aliens, are waited upon by partisan committees, and their naturalization fees paid out of party iunds in order to make them voters. And some of these persons have so little desire of their own to become citi-zens that they never go any further than the declaration of their intention. The man who is worthy to become a citizen of the United States, and to share in the privileges of the- government, to take part in the making of -its laws, and who in good faith desires to do so, will find ways and means of his own to declare his intention, and to take all necessary steps to be clothed in time with full citizenship. It is not necessary, nor is it desirable, that about six months before election the political partisan .should be scouring the county, going into every highway and alley, for aliens, who, if the expense is paid, will become voters and recruits in his party. Here lies the great incentive to fraud, and the easy opportunity for it. If the alien must himself go to the office of the clerk of the court, and pay the expenses of his own advancement *96to citizenship, fraud in declarations of intention to become a citizen will seldom occur; and the citizen, thus acquired, will be in the future, as in the past, a welcome and desirable addition to our voting population. If our naturalization laws had been rigidly enforced in the past, our large cities would not have been cursed, as some of them now are, with a large number of voters who openly avow that the only object they have in casting the ballot is to destroy not only our government, but all government and all law, that anarchy may reign in its stead.

I do not believe in this kind of business of carrying the records and books of the courts from town to town, and from place to place, to manufacture voters, or even to accommodate an alien, who considers the privilege of American citizenship of too little value to seek it at the county seat or at the court-room. And, in my opinion, it is neither required by good policy, nor sanctioned by the law. On the contrary, as I have shown, we have the highest judicial condemnation of it.

I think the writ should issue.