The record-union., 1892-06-18
THE DECISION.
Full Text of Judge Van Fleets Judg-
ment In the Case.

Following is Judge Van Fleet's de-
cision in full:
At the municipal election held in the city of
Sacramento. in March last, the respondent,
Rodgers, received the highest number OF votes
cast Ior the Office OF Chief of Police OF said
city and was thereafter duly declared elected
TO said office. Thereafter the contestant,
Drew, an electOr OF SAID city, commenced InlS
proceeding under Section I'LL of the Code
OF Civil Procedure, to have the election OF re-
spondent annulled and set aside upon the
ground that respondent was not at the time
of his election eligible to such Office, IN that,
as alleged, he was not at the time qualified
elector OF said city or county, nor citizen OF
the State or of the United States. The re-
spondent is an alien by birth, having been
born in Australia OF parents who were at the
time British subjects and was subsequently
brought by the latter, while an infant, to the
United States, where he has since resided.
The question of his eligibility turns, in the
view take OF the case, upon the question
whether respondent has ever become natu-
rallied by virtue of the naturalization of his
parents or either of them.
The evidence shows that respondent did, in
February last just prior to the election, apply
to the Superior Court ot this county and was
admitted to citizenship, but am satisfied, as
contended by contestant, that this step was
not taken IN time 10 be OF any avail TO render
respondent eligible, If not otherwise so. Sec
ton 1883 Of the Political Code, enacted in
pursuance ofSection /. Article Ii. of the Con-
stitution, provides that;
every native male citizen Of the United
States and every male naturaliZed
clblHen IQefeOI, VINO SilaII nave become Such
ninety days prior TO any election, of the age
OF twenty-one years. who shall have been a
resident of the State one year next preceding
the election, and of the county in which he
claims his vote ninety days, and in the cleo
tton precinct thirty days, and whose name
shall be enrolled on the Great Register of such
county, shall be qualified elector thereof"
And Section 5S of the same code provides
that: Every elector is eligible to the Office
for which he Is an elector, except when other
wise specially provided; and no person is
O. XVll Ill : n of a n hl a or
From these provisions it appears that to be
eligible to a civil Office in this State one must
be qualified elector, and in order to be a
qualified elector one OF the prerequisites in
the case of naturalized citizen is, that he
must have been nGturaliZed at least ninety
days prior to the election. Here respondents
application and the decree admitting him to
citizenship were had February 20, 1892,
while the election transpired March Sth
following, period of but eleven days subse-
quently. Obviously, therefore, this act of
naturalization was Intellectual 10 create any
right in respondent which he did not other
wise possess. 1t is suggested by respondent
that these provisions OF the Political Code do
not apply to elections tor municipal officers,
but this question was determined adversely
TO such contention in Kirk VS.. Rhoads (46
Cal. 4o2). The real question in the case, there
fore, as before stated, is whether respondent
has been naturalized by the naturalizat on of
his parents. This question can best be deter
mined by taking up in their order the propo-
sitions advanced by respondent. Respondent
contends that he, in fact, became naturalized
/. By the naturalization of his father before
he became 81 years of age: 2. By the mar
riage of his mother to citizen of the United
States before he arrived at that age.
Section 2172 of the Revised Statutes Of the
United States provides that: "The children
of persons who have been duly naturalized
under the law of the United States, x =
being under the age of 2 i years at the time of
the naturalization of the parents, SHALL if
dwelling in the United States, be considered
as citizens thereof etc. Evidence was intro
duced establishing satisfactorily to my mind
that the respondents father became duly
naturaliZed as citizen of the United States
on the 30th day OF August 1873; and there
upon 1t became a material matter of inquiry
under the section OF the Revised Statutes
above quoted whether respondent was at that
date under the age of 21 years. II under that
age, then upon the naturalization of his
father he became, {pSoi Jact0, by operation
of law, a citizen, without Affirmative act of
his own; and his subsequent voluntary appli-
cation for naturalization would be regarded
as nero superOgatory act on his part in no
way affecting the previously acquired right of
citizenship.
on the question of respondents age, Will
lam A. Rodgers testified, on direct eXamina-
ton, that he married the mother of respond
entin the year 1855; that her name was Mrs
Mary Baxter, and she was separated from her
husband; that he lived with her from that
date until her death in 1878, and respondent
lived with them during his boyhood They
came to Sacramento in 1857; that he under
stood the respondent was born in Australia;
that, as near as his mother told him, the re-
spondent was born in lS52-fn November
or December; that no attention. was paid to
his birthday IN the family andtt was not their
habit to celebrate it.
on cross-examination the witness testified
that he had known respondents mother three
or four years before they were married: that
respondent was living with her at the time;
that when he first knew her the respondent
was q boy running around" and that she
talked like all little boys that were running
around'; that she was like all boys of his age:
he was wearing pants-he did not wear petit
coats; that Mrs. Baxter also had a little girl
at the time, called Fannie, younger Than re-
spondent, who died in Sacramento some years
later; that Fannie could talk some and he
thought run around when he first knew Mrs
Baxter.
On redirect examination by RESPONDENTS
counsel witness stated that he did not rempIn-
ter how long he had known Mrs. Baxter be-
fore marrying her; that he thought about a
year or So and that respondent was about n
year old, but on recross stated that il was two
or three years that he had known her before
marriage.
The respondent himself testified that his
fathers name was Thomas H Baxter and his
own name John A Baxter, but that after his
mother married W. A. Rodgers he took tie
name of Rodgers and now goes by the name
OF John Baxter Rodgers. That he came to
Sacramento when little boy, with his
mother, and had lived there continuously
since, where his mother died in 1875 That
his father died IN 1882. That he did nnt
know how old he was. That he had been told
since this proceeding was commenced NV ~
a. Rodgers that he was born in S52-in No
vember or Decent ber-Which would make him
always understood that he was older and tfIaf
has birthday was the 30th of August Thai
ms blrihday, however, was never discussed at
home, nor celebrated. and he did not know
what month 1t occurred IN. 1t was disclosed
by the further examination of the witness
however, that in the year 1870 he became a
member OF the Volunteer Fire Depa~fnleTlt Of
Sacramento and represented hiniseIft To he Of
the time 21 years old. That on July 2f 1371
he went before the County Clerk and made an
affidavit for registration, IN which he was 81
years OF age, ana was put on the Great F2.gis
ter. That later IN the same wear fII,I.iY3eg q
temporary residence in Vallejo, he procured
q transfer to Solano County, where ne yotaSj
at the general election OF that wear That
thereafter ne was retransferTed to Sacramento
County and continued on the Great Register
OF said county for a number of years Under
said original registration. exercising the priv
ileges of an elector That on the
9th day of March, 1875, he made an
otker affidavit of registration, in which
he stated his age at 23 years. That on June
13. 1877. in procuring his marriage license
he made oath that he was then % wears of
age. That thereafter. on April 10, 1855 and
again on August 2, 1890 he made afhdayits
for registration, in the first of which he stated
his age at 8 = years and in the second at II
Years. And that when, on February 26,
1892. he made his application to be natural
,ized, heretofore mentioned, he stated in the
affidavit made for the purpose that his age
va - rs. He also admitted faat, j1st
1Tl - ose exc esl III Qgesiip alS4e