State ex rel. Kickbush v. Hœflinger

Cole, J. In exhibit “A,” annexed to the bill of exceptions, which is a copy of the record of naturalization, the word “ circuit ” is omitted before the word “ court.” It is claimed on the part of the plaintiff, that the word was in the original record ; and a motion was made to withdraw the bill of exceptions in order to have it inserted in the exhibit. This motion is opposed on the other side, and affidavits have been produced for the purpose of showing that the word “circuit” has been interpolated in the record since it was originally made. We deny the motion to withdraw the bill of exceptions, because we do not, under the circumstances, deem the proposed amendment material. The word is wholly unnecessary to show that the proceedings of naturalization were had in the circuit court. The book of record was itself offered in evi [400] dence, and the circuit court would take notice of its own records. The first exception in the record is taken to the ruling of the court below on the objection of the defendant to the admission of evidence under the complaint. It is insisted that the complaint was defective in substance, for the reason that it contained no averment that the plaintiff was a citizen of the United States. Upon that point the allegation is, that the “ plaintiff was and is a legal and qualified elector of said county, and now is and was eligible to said office at the time of said election.” This is a sufficient allegation of legal qualification for the office of county treasurer. The other exceptions all relate to the competency and sufficiency of the evidence offered to show that the plaintiff had been naturalized. For the purpose of establishing that fact, the book of record of naturalization was produced, which showed that the plaintiff was admitted by the court in which this action was pending, to become a citizen of the United States, on the 13th day of March, 1866. This record of the court of the plaintiff’s naturalization was conclusive upon the question in this collateral proceeding. It was the record of a judgment, and imports absolute verity. The law upon this subject is so completely settled by the decision of the supreme court of the United States in Sprctit v. Spraii, 4 Peters, 393, that we need only make an extract from the opinion of O. J. Marshall, in that case, to show that the rulings of the court below were correct: “ The various acts upon the subject,” says the chief justice, “submit the decision on the right of aliens to admission as citizens to courts of record. They are to receive testimony, to compare it with the law, and to judge on both law and fact. This judgment is entered on record as the j udgment of the court. It seems to us, if it be in legal form, to close all inquiry; and, like every other judgment, to be complete evidence of its own validity.” (Pp. 407-8.) This decision is followed by the court of appeals of New York in [401] McCarthy v. Marsh, 5 N. Y., 263, as a correct exposition of the law, and as a binding authority upon the state courts on the question as to the conclusive effect of the record of naturalization. In this case, it will be remembered, the record produced was the record of the court itself where the action was tried and determined. The record is in due form. It is said that the record was made by a deputy clerk, and not by the clerk himself. The statute authorizes the clerk to appoint a deputy, who, in his absence, shall perform his duties. R. S., ch. 13, sec. 68. But the record of admission shows that the proceedings were in open court, and therefore what was done in the matter was done by the court itself. The judgment of admission was the judicial act of the court, and was conclusive evidence of the facts therein recited. These remarks dispose of all the questions we deem it necessary to notice. By the Court — The judgment of the circuit court is affirmed. A rehearing was denied at the June term, 1874. On the 25th of July, 1874, the counsel for the appellant in the above named action applied to Mr. Chief Justice Ryax to allow a writ of error to the supreme court of the United States. The chief justice returned the writ of error, not allowed, with this memorandum: In the case in which the petitioner prays allowance of a writ of error to the suprerr j court of the United States, this court held that the relator was duly elected and entitled to the office of county treasurer of Marathon county in this state. In so holding, the court passed upon the point that the record of the circuit court of Marathon county of the naturalization of the relator was, in the case, conclusive evidence of it. No construction of the naturalization laws of the United States was rendered or given. And what was decided went exclusively to the right of the relator; the defendant setting up no right in himself, but only denying the right of the relator. [402] I have consulted my brethren, and they agree with me that I should not allow the writ of error: 1st. Because no construction was given to any act of congress, but effect was only given to the record of the state court. 2d. Because, if this court should be considered as having given such construction, no right of the defendant is included in such construction; and 3d. Because, this being a question of a state office and a state law, the federal courts have no original jurisdiction of it, by original proceeding or by writ of error. Eor these reasons, I decline to allow the writ of error.