Andres v. Arnold , 6 L.R.A. 238 ( 1889 )

Campbell, J.

The only serious question involved in the inquiry which relator seeks to make concerning the validity of the declared result of the election in this case is whether declarations of intention can be made before a clerk of a court anywhere but in his office, or in open court. If those declarations were valid, the other questions need not be considered, whether relating to the remedy or otherwise.

The statutes of the United States are all that we can be governed by, inasmuch as Congress has exclusive power over naturalization. The fact that this or any other state may extend privileges to aliens, who have merely declared, their intention to become citizens, can have no weight in determining how such declarations are to be made.

The amendment of 1876 to the Revised Statutes of the United States (section 2165) is made to qualify a section that had required such declarations to be made before a court of record. It declares that not only for the future, but also for the past, such declarations “before the clerk” of any of such courts shall be as legal and valid as if made before the court.

This language, in its natural sense, makes the person before whom the declaration is made, and only the person, material. A declaration on oath for this purpose in no way differs in its nature from any other oath or affidavit, and in the very many cases of such oaths, whether before judges, justices, notaries, commissioners, or clerks, the only inquiry recognized is whether the oath is administered within the officer's jurisdiction, and not in what particular building or place it may be administered; and, unless there is some statutory intimation to the contrary, there is no reason why this case should form an exception. On the contrary, the history and construction of the naturalization laws show that this declaration confers no privileges, and fixes no rights, and is not jurisdictional, but is in several cases dispensed with. The United States Supreme Court has repeatedly held that no inquiry can be made in any controversy to attack the sufficiency of the final admission to citizenship by showing a want of conformity to the previous requirements of the statutes. Campbell v. Gordon, 6 Cranch, 176; Stark v. Insurance Co., 7 Id. 420; Spratt v. Spratt, 4 Pet. 393.

The naturalization laws originally required no preliminary declaration, but allowed citizenship on two years’ residence. 1 U. S. Stat. 103. In 1795 the rule now generally in force was established, requiring a declaration in advance three years (and not two, as now required), but fixing five years’ residence as necessary for admission. Id. 414. By that law, as by all subsequent ones, the declaration of intention was merely on the ex parte oath of the applicant, and no inquiry was made in any formal way until he applied for his last papers, when evidence was taken, and the facts looked into. The alien law of 1798, which covers other matters than naturalization, contained some stringent provisions, and required a declaration five years before admission and fourteen years’ residence, saving, however, cases of aliens residing here before the law was passed. In 1802 the old rule was restored. 2 U. S. Stat. 153. In 1804 declarations of intention were dispensed with in all cases where residence dated back of the law of 1802, and only final papers required in such cases. Id. 292.

In 1824, it having been found that the law had been carelessly administered, instead of adopting more stringent rules the door was opened still wider. It was provided that declarations of intention might be made two years, instead of three, before admission. It was also provided that minors residing three years during minority need not make any declaration; that declarations theretofore as well as thereafter made before clerks, instead of courts, should be valid; and that final admission, made without any declaration at all, should not be invalid. 4 U. S. Stat. 139. On page 810 of the same volume is a law exempting persons coming into the country between 1802 and 1812 from making such declarations. In 1848 the old law requiring not only residence, but unbroken continuance in the country, was repealed. 9 U. S. Stat. 240.

This was the state of the law, subject to some further dispensation concerning declarations of intention, and some shortening of residence in particular cases, when the Eevised Statutes of 1872 were adopted. It is well known that the compilers of that revision, which was not meant to change the laws, were no more exempt from mistakes than others, and numerous amendments have been required to place the law where they should have found it. That revision, while it retained the several exemptions from declaration of intention which had been brought in from time to time, did not embody the change of 1824, which validated and authorized clerks to take the first declaration. In 1876 this portion was restored, and is now in force.

If the declaration of intention was a proceeding on which witnesses were sworn or inquiries made, there would be, perhaps, some reason for formality. But it is a purely ex parte oath, which in no way dispenses with the inquiry made on final admission, and which Congress has not made of any particular value. It is difficult to see for what purpose it was devised, unless possibly as a reminder that a man should not become a citizen without two years deliberation. Even this is dispensed with in quite a number of instances; and when Congress, by the act of 1824, adopted its present policy, it was evidently for the reason that the declaration was not deemed of any special importance.' The final application is not required to be made to the same court, or within the same jurisdiction, where the original declaration is made; and the inquiries made at the time of his admission need not, and generally cannot, go into the minutice or circumstances of his declaration of intention, and are complete in themselves.

There is no substantial reason why a clerk must be in his office or in court for this purpose, any more than for any other ministerial act not pertaining to court business. There is no law requiring him to be in any particular place to administer affidavits. As shown in Whallon v. Judge, 51 Mich. 503 (16 N. W. Rep. 876), the clerk’s movements are not fixed within any one room or set of rooms, or any one place. By our Constitution, until amended, the county clerk was clerk of both circuit and supreme courts held in his county, though not held in the same building, or in the same town. He is clerk ex officio of more or less other bodies, and may or must have different places of action, either of which is his official place. There is no reason why an oath may not be taken before him at any place where he happens to be, as well as before a judge, or justice, or notary, or commissioner.. He is the person indicated by the law. When it dispenses with his action in open court, it dispenses with the-only locality which is universally known for clerical action; and we cannot require his action under the-naturalization laws to be had in any particular spot or room or building without adding to the law a qualification of our own not indicated by its language, and not required by any of its purposes.

The fact that our laws give more force to these declarations than Congress has done cannot have any weight. in construing congressional action. That must speak for' itself, and lay down its own conditions.

The writ should be denied.

Sherwood, C. J., Champlin and Long, JJ., concurred with Campbell, J.