State Citizenship
Van Dyne, Frederick
2 Geo. L.J. 11 (1913)
Citizenship
STATE CITIZENSHIP II
A subject which has received little attention from law writers is that of state citizenship. Yet constituting, as it does, the principal qualification for holding office and for the exercise of the elective franchise, it is a matter of great importance.
At first impression it would appear to be a comparatively easy matter to ascertain what constitutes citizenship in a particular State. As a matter of fact, however, State Citizenship is not well defined. Not a single State constitution contains a complete definition, and only incomplete definitions are found in State statutes.
The Constitution of Vermont of 1793 provides that,
“Every person of good character who comes to settle in this State, having first taken an oath or affirmation of allegiance to the same, may purchase, or by other just means, acquire, hold, or transfer land or other real estate; and after one year’s residence shall be deemed a free citizen thereof and entitled to all rights of a natural born subject of this State except that he shall not be capable of being elected governor, lieutenant-governor, treasurer, councilor, or representative in assembly, until after two years’ residence.”
This clearly sets forth the method by which persons, including aliens, coming into the State, could acquire citizenship therein. But Article I of the Amendments to the Constitution (of 1828) contains a declaration limiting, as to the future, State Citizenship to natural born citizens of some one of the States or naturalized citizens of the United States. The provision is,
“No person who is not a freeman of this State shall be entitled to exercise the privileges of a free-man unless he be a natural born citizen of this or some one of the United States, or until he shall have been naturalized agreeably to the acts of Congress.
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The Constitution of the United States (Article XIV of the Amendments) contains a definition of State Citizenship. It reads:
“All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”
The Supreme Court of the United States, in its opinion in the Slaughter-House Cases, (i6 WaIl. 36) declared that one of the objects of this amendment was “to give definitions of citizenship of the United States and citizenship of the States, and that it recognized the distinction between citizenship of a State and citizenship of the United States by those definitions.” But while the Federal Constitution asserts that persons born in the United States are citizens of the State wherein they reside, it does not undertake to declare what residence in a State is necessary to make a citizen of the United States a citizen of the State. It is to be observed that while birth in the United States is sufficient to make the party a citizen of the United States, he must reside in a State to make him a citizen of it. Or, as Mr. Justice Bradley said (in the Slaughter-House Cases) “State Citizenship depends upon citizenship of the United States and the citizen’s place of residence.” It is left to the State to determine what residence therein shall make a citizen of the United States a citizen of the State. It is also the province of the State to determine what residence therein shall entitle an alien to the rights of citizenship in the State.
As the States, with a single exception, have not undertaken to declare by constitution or statute what residence in a State is requisite to State Citizenship, the question must be determined by an examination of the constitution and statutes of the State, wherein the term “citizen” is used. In this connection, the decisions of the highest State tribunal construing the constitution and laws are controlling.
In the absence of a constitutional, statutory, or judicial definition of State Citizenship, there are certain tests of State Citizenship that may be applied. Chief among these is the right to vote, which is the most important attribute of State Citizenship. Mr. Justice Curtis, in his dissenting opinion in the case of Scott vs. Sandford (I9 How. 581) referring to this matter, said:
“Although I do not think the enjoyment of the elective franchise essential to citizenship, there can be no doubt it is one of the
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chiefest attributes of citizenship under the American Constitutions; and the
just and constitutional possession of this right is decisive evidence of
citizenship.”
In Winn vs. Gilmer (27 Fed. 819), where the evidence showed that the plaintiff had declared his intention to vote for Mr. Cleveland for President, and had further declared that he expected to remain upon and run the ranch upon which he was living, the court said “The declaration certainly justified the defendant in concluding that the plaintiff had become a citizen of the State. Had it been shown that the plaintiff exercised the privilege of voting, it would have been conclusive evidence of his having adopted this State as his domicil and he would not be heard to dispute it. as the law regards the act as conclusive evidence of intention.”
Applying this test, it is found that in forty-three States the elective franchise is given to citizens of the United States who have resided in the particular State for periods varying from three months to two years. In twelve States the franchise is given also to aliens who have declared their intention to become citizens of the United States and have resided in the State from periods ranging from six months to two and a half years. In two States the right to vote is conferred upon “male citizens of the State.” In two others it is given to “male citizens.” In one State the franchise is given to “male inhabitants of the State who have the proper qualifications,” and in another to “male citizens of the State and of the United States.”
While the possession of the right to vote is strong evidence of citizenship, it is not conclusive, as citizenship and the right to vote are neither identical nor inseparable. In Lanz vs. Randall (4 Dill. 425). the court said:
“There is no necessary or uniform relation between citizenship and the right to vote. In point of fact by the constitution of Minnesota and probably of every other State, only about one in five of its citizens is permitted to vote.” In the case of In Re Wehlitz (i6 Wis. 704), the Supreme Court of Wisconsin, referring to the fact that a State may confer the right to vote without necessarily making those on whom it is conferred citizens of the State, said:
“This may possibly be true, but the power of the State being
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conceded to confer the right of citizenship within itself upon whomsoever it
pleases, the question whether it has done so or not is a mere question of
intention, to be determined by a proper construction of its own constitution and
laws, and one also which the Supreme Tribunal of each State is to determine for
itself. This being so, although it may be possible for the State to confer the
right of voting on certain persons without making them citizens, yet I should
think it would require very strong evidence of a contrary intention to
overcome the inference of an intention to create a citizenship when the right of
suffrage is conferred.”
Another test of State Citizenship is the right to hold
office.
In the absence of any express constitutional or statutory limitation,
under our system the right to hold office, which is generally co-exten-sive
with the right of suffrage, is an implied attribute of citizenship. Those only
who are competent to select the officer are deemed competent to hold the
office.
The Constitution of West Virginia provides that,
“No persons except
citizens entitled to vote, shall be elected to or appointed to any State,
county, or municipal office.”
A still further test of State Citizenship is that
of residence, (domicil). The question has most frequently arisen in the courts
in determining whether the parties are citizens of different States within the
meaning of the Federal Constitution and statutes relating to the jurisdiction of
the United States courts. It has been uniformly held that “a citizen of a State”
within the meaning of the Constitution of the United States, is “a citizen of
the United States residing in the State.” Thus in Read vs. Bertrand (4 Wash. C.
C. 514), the court said:
“Judicial citizenship is that species of citizenship intended by the Constitution and laws of Congress in reference to the jurisdiction of the courts of the United States and is nothing more than residence or domicil in a particular State, a person claiming to be a citizen of such State being at the same time a citizen of the United States.”
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In Case vs. Clark (5 Fed. Cas. 254), Justice Story said:
“To constitute a
person a citizen of a State so as to sue in the courts of the United States, he
must have a domicil in such State.”
In Hammerstein vs. Lyne (200 Fed. 170) it was declared that State Citizenship is the practical equivalent of domicil. In this case the defendant lived in London. She had abandoned her former home in Missouri for an indefinite and uncertain period, with no present intention of returning. She declared London to be her home and that it was her intention to remain there indefinitely. She was on a temporary visit to the United States and it was her purpose to return to England. Under the circumstances it was held that she was not a citizen of Missouri within the meaning of the Judiciary Act conferring jurisdiction upon the Federal courts of controversies between citizens of different States.
The court, in its decision, pointed out the
distinction between State and national citizenship, defining the latter as the
relation of allegiance and protection between individuals and their country,
and said:
“A citizen of the United States owes his primary and highest
allegiance to the general government and not to his particular State. On the
other hand, State Citizenship is the equivalent of domicil.”
Continuing, the
court said that generally speaking, and especially with reference to the
Judiciary Act, State Citizenship must involve national citizenship It added:
“Although a State may by its constitution and laws confer certain privileges of
citizenship on foreign subjects, it cannot make them citizens within the meaning
of this act. Minnesota vs. Reum (56 Fed. 576). Nevertheless, such State
Citizenship or domicil is not at all essential to national citizenship.”
It results therefore that there are or may be at least two classes of State Citizens: (i) Citizens of the United States domiciled in a State; (2) Aliens who have declared their intention to become citizens of the United States and who have resided in a State for a sufficient length of time to entitle them to the rights and privileges of State Citizenship.
Frederick Van Dyne.
Washington, D. C.